Case Note & Summary
This civil suit, filed in 1989, involved a dispute over possession of tenement no.10/A/1, comprising three rooms on the ground floor of Durlabh Bhawan, Charni Road, Bombay. The original plaintiff, Abdul Samad Shaikh, claimed to be the sole tenant by right of survivorship after his brother (with whom he held joint tenancy) died around 1984. The defendants, claiming to be the legal heirs of one Feroze Mallu, sought to assert rights over a portion of the suit premises. The plaintiffs alleged that Feroze Mallu was earlier the tenant of adjacent room 10/B/2 and, being ailing and bachelor, was allowed by the original plaintiff to place a cot in one room of the suit tenement purely on humanitarian grounds. It was further alleged that Feroze Mallu surrendered possession of room 10/B/2 to the landlords, who transferred the rent receipts to the original plaintiff's mother in 1980. Two months after Feroze Mallu's death on 16 July 1988, the defendants sought to disturb the plaintiff's possession. The plaintiffs also relied on prior litigation: suit no.5283 of 1979 restrained Feroze Mallu from interfering with repair work, and suit no.6033 of 1979 successfully challenged a BMC notice under Section 351 alleging illegal construction of the suit structure, which was eventually regularized. The plaintiffs sought a declaration of entitlement and possession of room nos.2 and 3. The judgment excerpt ends abruptly and the court's final decision, issues framed, arguments, and ratio are not available in the provided text.
Issue of Consideration
Law Points
- joint tenancy
- right of survivorship
- surrender of tenancy
- humanitarian accommodation
- Section 351 BMC Act
- regularization of unauthorized construction
Case Details
2005 LawText (BOM) (07) 151
Mr. H.S.S. Murthy i/b. S.S. Tammanavar for Plaintiffs; Mrs. V.V. Thorat for Defendants
Nazmabegum widow of Abdul Samad Shaikh & Ors.
Mani Burjorji Pochkhanawalla & Anr.
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Nature of Litigation
Civil suit for declaration and possession of tenement premises
Remedy Sought
Declaration that the plaintiff is entitled to possession of the suit premises and possession of Room Nos. 2 and 3 of tenement No.10/A/1
Filing Reason
Defendants allegedly claimed through deceased Feroze Mallu who earlier occupied adjacent room and was temporarily accommodated in one room of suit tenement; upon Feroze Mallu's death, defendants sought to assert rights over part of suit tenement
Previous Decisions
Suit No.5283 of 1979 filed by original plaintiff against Feroze Mallu for restraining entry and interference with repair work; Suit No.6033 of 1979 challenging BMC notice under Section 351 regarding illegal construction; structure later regularized
Judgment Excerpts
This is a suit for declaration that the plaintiff is entitled for possession of the suit premises in his own right as against the defendant and for possession of Room Nos.2 and 3 of suit premises, being tenement No.10/A/1.
The said tenement was held by the original plaintiff on joint tenancy basis with right of survivorship with his brother who died in or about 1984 and as such the original plaintiff became the sole tenant.
Accordingly, such arrangement was made purely on humanitarian grounds and, therefore, Feroze Mallu had surrendered possession of Room No.10/B/2 to the landlords who, in turn, handed it over to the original plaintiff’s mother.
the B.M.C. had issued a notice under Section 351 of the B.M.C. Act alleging that walls of the Room No.10/A/1 were constructed illegally.
Procedural History
Suit No. 1849 of 1989 filed by original plaintiff Abdul Samad Shaikh (later substituted by his legal heirs). Prior litigation: Suit No.5283 of 1979 filed against Feroze Mallu; Suit No.6033 of 1979 challenging BMC notice under Section 351; regularization obtained. Oral judgment reserved on 23 June 2005 and pronounced on 6 July 2005; text incomplete beyond recitation of facts.
Acts & Sections
- Bombay Municipal Corporation Act, 1888: 351
