U.U. Lalit JUDGMENT
U.U. Lalit, J.
1. Leave granted.
2. This appeal challenges the judgment and Order dated 17.09.2013 passed by the High Court of Bombay in Appeal from Order (ST) No. 15590 of 2013 quashing and setting aside the Order dated 29.04.2013 passed by the Bombay City Civil Court in Notice of Motion No. 344 of 2013 in Suit No. 408 of 2013.
3. On 4.02.2013, aforesaid Suit No. 408 of 2013 was filed by the Respondent submitting inter alia:
The Plaintiff along with his Maternal grand-mother Mrs. Noorbanoo Mohammed Ali Tejani are in use, occupation and possession of the premises known as Tej Kunj, 1st Floor, Plot No. 212 D, Byramjee Jeejeebhoy Road, Bandstand, Bandra (West), Mumbai 400050, hereinafter referred to as 'the suit premises'.......The Defendant Nos. 1, 2, 3 and 5 are the Paternal uncles of the Plaintiff's mother i.e. Mrs. Zeenat S. Jagani viz. the brothers of deceased father named Mohammed Ali H. Tejani (since deceased) and Defendant No. 6, is a son of the Defendant No. 5 and Defendant No. 4 is the sister of Defendants 1, 2, 3 and 5.......Mohammed Ali H. Tejani (called the said Deceased) was a Co-owner along with Defendant Nos. 1 to 5 in respect of a Plot of Land bearing Plot No. 202-D, along with the building comprising of ground with one upper floor standing thereon and known as Tej Kunj ........The said deceased executed a Will dated 28th September 1991 under which the deceased bequeathed his 1/7th share in the plot of land in favour of the Defendant Nos. 1 to 5. The said Will is probated in the High Court T & I.J. Petition No. 856 of 2003 as per the Prabate granted on 6th December 2006.
The Respondent-Plaintiff then adverted to Will dated 28.09.1991 and Clause 7 thereof in particular. It was averred:
The said deceased during his life time resided along with his wife namely the said Smt. Noorbanoo Mohammed Ali Tejani and the family members on the entire First Floor of the said property including the Plaintiff herein. The said deceased died on 22nd March, 2003 and since then the said Noorbanoo Mohammed Ali Tejani and the Plaintiff resided in the said flat.
The Respondent prayed, inter alia, for following reliefs:
a) That this Hon'ble Court be pleased to grant permanent order and injunction restraining the Defendants, their respective servants, agents and person or persons claiming through or under them from in any manner dispossessing the Plaintiff from the suit premises without following due process of law.
b) That pending hearing and final disposal of the above suit, this Hon'ble Court be pleased to grant temporary order and injunction restraining the Defendants, their respective servants, agents and person or persons claiming through or under them from in any manner dispossessing the Plaintiff from the suit premises without following due process of law.........
4. By Will dated 28.09.1991 which was referred to by the Respondent, the testator had appointed his brother Amirali Huseinali Tejani and his daughter Zeenat Shafique Jagani as the executors and trustees. The principal bequests made by the testator in the Will were:
5. I give, devise and bequeath all types of investments and assets which are in the form or nature of moveables and which are in my own and bene........