"The case of trespass by Sheetal is not established as being a heir of the deceased tenant and whose joint tenancy is also admitted prima facie, it cannot be said that she is a rank trespasser," the judges said, adding, "She entered the flat after a long duration and on account of differences and disputes cannot, therefore, give a right to Anand to exclude her from possession at an interlocutory stage. He cannot be entitled to a temporary injunction."
The court said Anand, who has been living abroad for long, had not prima facie proved that he was in exclusive possession of the flat. "Having only visited the flat during the lifetime of his parents and thereafter intermittently does not prima facie mean the settled and exclusive possession is established," it said.
Anand and Sheetal's father, a former deputy governor of the Reserve Bank of India, was a tenant of the 4,000 sq ft Cuffe Parade flat since 1965. The father died in 1998 and the mother in 2001. Anand claimed that after his mother's death, the tenancy rights came to him. He alleged that Sheetal and her husband illegally trespassed into the house in 2011 and he sought restraining orders against them. Anand, who is physically challenged, said Sheetal had taken over the bedroom with attached disabled-friendly toilets, which forced him to stay in a hotel and club. Sheetal's lawyers said she was a co-tenant and did not require anyone's permission to enter it. Sheetal opposed her brother's sole tenancy claims and said she used to frequently visit her parents when they were alive while her daughter would spend weekends at the Cuffe Parade flat.
The HC told the trial court to proceed, uninfluenced by its observations, and permitted Anand to occupy two bedrooms, Sheetal one, and the common areas can be accessed by both.
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