Shri. Riyaz Rafiq Sayyed And ANR v. Smt. Khatija Rafiq Sayyed And ANR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10796 OF 2023 Shri Riyaz Rafiq Sayyed and Another ...

Petitioners Vs.

Smt. Khatija Rafiq Sayyed and Another ...

Respondents Mr.Kalim Ansari for the Petitioners.

Mr. Mahesh Tiwari for Respondent No.1.

Ms. Sulbha Chipde, AGP for Respondent No. 2 - State. CORAM : GAURI GODSE, J.

DATE :

21st FEBRUARY 2024 P.C.

1.

Heard. This petition takes an exception to the order passed by the tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ("said Act") directing the petitioners to vacate the subject premises i.e. Room No. 18/10, Nani Bungalow, Hasnabad Lane, Santacruz (West), Mumbai-400 054. The impugned order further restrains the petitioners, from doing any acts that will disturb respondent no. 1's mental or physical health, and disturb the peace in Digitally signed by RAJESHWARI RAMESH PILLAI Date:

2024.02.27 09:49:02 +0530 1/5 RAJESHWARI RAMESH PILLAI

her house. The impugned order is passed in favour of respondent no. 1, who is the mother of petitioner no. 1. Petitioner no. 2 is wife of petitioner no. 1.

2.

Learned counsel for the petitioners submitted that the subject property is a tenanted property which originally stood in the name of the deceased father of petitioner no.1 and husband of respondent no.1. He therefore submits that even the petitioners have a right in the subject property and respondent no.1 is not entitled to seek possession of the same under the provisions of the said Act. 3.

He further, submits that petitioner no.1 has sold his own property and paid an amount of Rs. 40,00,000/- to respondent no.1. He therefore, submits that after accepting substantive amount from him, respondent no. 1 has made false allegations against the petitioners and filed the application under the said Act. He therefore, submits that the petitioners are entitled to get back the amount paid to respondent no.1. With these submissions, learned counsel for the petitioners submits that the impugned order is illegal and is required to be set aside.

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4.

Learned counsel appearing for respondent no. 1 supports the impugned order. He submits that the subject property has always been standing in the name of respondent no. 1 and the tenancy rights were never in favour of the husband of respondent no. 1. Since beginning respondent no. 1 is the tenant in respect of the subject property. In support of his submissions he relies upon the rent receipt of the year 1969 which is annexed at Exhibit A to the affidavit in reply. 5.

Learned counsel for respondent no. 1 also objects to the submissions made that the petitioners have paid Rs. 40,00,000/- to respondent no. 1. He submits that even the property which is sold by the petitioner no. 1, claiming to be his own property was the property of respondent no. 1 and the petitioner no. 1 has illegally disposed of the said property. In support of the said submission, learned counsel for respondent no. 1 relies upon a document annexed at Exhibit C to the affidavit-in-reply which is a receipt in the name of respondent no. 1, for payment towards the society charges. He supports the impugned order and submits that respondent no. 1 was required to file a police complaint, against the harassment meted out to her by the petitioners. He therefore, submits that by taking into consideration all the relevant 3/5

aspects the tribunal has rightly passed the impugned order in favour of respondent no. 1.

6.

I have considered the submissions made by the parties. Perused the record. Perusal of the impugned order indicates that the tribunal has taken into consideration all the allegations made by respondent no. 1 as well as the response filed by the petitioners. The tribunal has also relied upon the police complaint filed by the respondent no. 1 against the petitioners. So far as the petitioners' claim on the subject property, on the ground that the tenancy was in the name of the father of petitioner no. 1 is concerned, I do not find any substance in the same, as there is already a rent receipt produced on behalf of respondent no. 1 in her name. Thus, it appears that the subject property stood in the name of respondent no.1 as a tenant. 7.

Even otherwise, the proceedings under the said Act are summary proceedings and the tribunal has no jurisdiction to decide the rights of the parties qua the title of the property. The tribunal is required to take into consideration the claim of the senior citizen made on the basis of the complaint and the response filed by the opponent. 4/5

8.

Perusal of the impugned order indicates that all the relevant factors have been taken into consideration by the tribunal before passing the impugned order. The Tribunal has observed that the petitioners did not argue that subject property belonged to them. Perusal of the impugned order indicates that all the contentions raised by the petititioners before the tribunal are examined. I do not find any error or illegality in the reasons recorded in the impugned order warranting any intervention under Article 227 of the Constitution of India.

9.

Petition is devoid of any merits. Hence, for the reasons recorded above, petition is dismissed.

10.

At this stage, learned counsel for the petitioners seeks stay of the impugned order to enable the petitioners to approach the Apex Court. The impugned order is therefore stayed for a period of four weeks from today, to enable the petitioners to approach the Apex Court.

[GAURI GODSE, J.] 5/5