P.C.

This appeal impugns an order dated 14th August, 1998, passed by the learned Judge of the City Civil Court at Bombay, on Notice of Motion no.3612 of 1998 in Suit no.4402 of 1998. The present appeal is filed by the original defendants.

2.The plaintiff claims that he alone with his brother are lessees in respect of the piece and parcel of land admeasuring 1012.08 square metres bearing Plot No.157 and more particularly described in the plaint.

3.By a lease agreement dated 22nd February 1957, the land was demised for a period of 98 years from 1 4.1927 to the plaintiff by Salsette Catholic Housing Society Ltd. The Plaintiffs residential premises comprise ground floor and has an entrance to the first floor through a room near the staircase. The stair case leads to the first floor which comprise Room No.1 on the right hand side of the landing and a fover on the left hand side which is subsequently enclosed by the Defendants and shown as Room no.2. The access to the common terrace on the first floor is only through Room no. 1 and 2. The said rooms are in possession of defendant nos.1 and 2. Room nos.1 and 2 are the suit premises.

4.According to the plaintiff, defendant no.2 has stopped his access to the terrace. It is the case of defendant no.2 that she and her children are in exclusive possession of room nos.1 and 2 on the first floor.

5.By the notice of motion, the plaintiff has prayed that pending the hearing and final disposal of the suit, the defendants be restrained from barring the plaintiffs access to the common terrace on the first floor through the suit premises i.e. room no.1 and 2 which is in possession of the defendants. It is the plaintiffs case that in May, 1995, the defendant no.1 came to Bombay from Dubai and stayed with the members of his family and started sharing the residential premises without any specific claim or occupation right in respect of the said premises as he had no place of residence.

6.It is further the plaintiffs case that defendant no.1 being his son out of love and compassion he was allowed to stay in room no.1 and defendant no.1 even started occupying room no.2 without the permission of the plaintiff. This case of the plaintiff is denied by defendant nos.1 and 2. However, it is not necessary to go into the rival contentions at this stage. Till the rights are finally decided both the plaintiff and defendants are entitled to use the common facility of terrace for the upkeep of the building. The question is how they could use terrace without causing any friction. The trial court has, after considering the rival contention held that for the purpose of looking after and maintaining the said water tank the plaintiff and/or his family members are allowed to go to the terrace. It has, however, put a condition that before going to the terrace, they shall intimate to defendant no.2 who shall allow the plaintiff and his family to go to the terrace for the purpose of checking the water tank. I see no reason to interfere with the impugned judgment and order as by the same the plaintiff is sought to be given access to the terrace without causing any disturbance to the defendants. Moreover, by the impugned judgment and order, the learned Judge has merely passed an ad-interim order. The motion is to be heard finally. The interest of justice would be served if the motion is directed to be heard expeditiously.

7.It is brought to my notice that while the present matter was pending before this Court, some efforts made to carry out some construction on the terrace. Certain photographs were shown to me in this connection. However, this fact is denied by the defendants. I may only add that if what is stated by the learned Counsel is true. It is indeed a very serious matter. It is only hoped that such a thing does not happen again and, if any construction is infact carried out the same should be removed forthwith. Needless to say that if the defendant persist with this, the plaintiffs can approach the Court for appropriate reliefs.

8.It is also clarified that in case the defendants go out of station or are for some reason away from the suit premises, they should make such arrangement as would enable the plaintiffs to have access to the terrace.

9.In the circumstances, I find no merit in the appeal and the appeal is rejected summarily. Hearing of the motion is expedited.