Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 20-19 in S.C.Suit No. 18-2019
1 Date : 21.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 20 OF 2019
IN
S.C. SUIT NO. 18 OF 2019
(CNR NO.MHCC010000502019 )
Nalini Mahendra Thacker .. Plaintiff
Versus
Mr. Kamal Mahendra Thacker .. Defendant
Appearances :
Adv.Sanjay T.Manek for plaintiff present.
Adv.Narendra Gharat for defendant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 21.11.2019
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
a) That pending the hearing and final disposal of the suit
defendant be directed and ordered by a mandatory
order and injunction to erect a partition wall between
living rooms of Flat No. 1501 and 1502 as it originally
stood and as shown in the Floor Plan Exh. G hereto by
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Red Colour Line, as also open an entrance door of Flat
No. 1502 from the common passage of 15th Floor, as it
originally stood as shown by Green Colour on the Plan
Exh. G hereto.
In the alternative
Plaintiff be permitted to erect a participation wall
between living rooms of Flat No. 1501 and 1502 as it
originally stood and as shown in the Floor Plan Exh. G
hereto by Red Colour Line, as also open an entrance
door of Flat No. 1502 from the common passage of 15th
Floor, as it originally stood as shown by Green Colour
on the Plan Exh.G hereto.
b) That pending the hearing and final disposal of the suit
this Hon’ble Court be pleased to appoint a suitable
person as a Court Commissioner for the purpose of
visiting the said Flat No. 1501 and 1502 and ascertain
the correct position of partition wall and entrance door
of Flat No. 1502, with a power to take photographs
and report about the same to this Hon’ble Court, and
such commissioner be directed to erect a partition wall
between living rooms of Flat No. 1501 and 1502 as it
originally stood and as shown in the floor Plan Exh.G
hereto by Red Colour Line, as also open an entrance
door of Flat No. 1502 from the common passage of 15th
Floor, as it originally stood as shown by Green Colour
on the Plan Exh.G hereto at the cost of defendant and /
or plaintiff as this Hon’ble Court thinks fit and proper.
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c) (i) Pending the hearing and final disposal of the suit
defendant his servants, agents and person claiming by
from under of through him be restrained by a
temporary order and injunction from dispossessing the
plaintiff from the suit premises or interfering with or
disturbing plaintiff’s use occupation and possession of
the suit premises viz. Flat no. 1502 alongwith the said
Reserved Car Parking Space No. S114 and plaintiffs
right to ingress and egress from the entrance of the
said Flat No. 1501 in any manner what so ever, till the
actual erection of partition wall between living rooms
of Flat No. 1501 and 1502 as it originally stood and as
shown in the Floor Plan Exh.G hereto by Red Colour
Line, as also opening an entrance door of Flat No. 1502
from the common passage 15th Floor, as it originally
stood as shown by Green Colour on the Plan Exh.G
hereto takes place.
d) Pending the hearing and final disposal of the suit, the
defendant and / or person claiming by from under or
through him be restrained by an order and injunction
of this Hon’ble Court from selling transferring,
alienating, encumbering, creating third party rights of
any nature whatsoever, in respect of the Suit premises
vis.Flat No. 1502 alongwith the said Reserved Car
Parking Space No. S114.
e) Adinterim and Interim reliefs in terms of prayer clause
(a) to (d) above.
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f) For such other and further reliefs as the nature and
circumstances of this case may require.
g) Cost of the Notice of Motion may provide for.
2. It is contended by the plaintiff that she has filed suit against
the defendant for injunction, restraining the defendant from
disturbing her peaceful possession in the suit flat. It is contended
by the plaintiff that defendant is her son. Her husband Shri.
Mahendra Shivji Thacker died on 24.01.2018. During lifetime of
her husband he has purchased several properties in Mumbai. The
suit premises bearing Flat No. A1502, AWing, situated on 15 th
floor, “Polaris” Building, Nirmal Galaxy, L.B.S.Marg, Mulund
(West) Mumbai – 400 080 was acquired by the plaintiff and shw is
the sole and exclusive owner occupier and in possession of the
aforesaid suit flat.
3. It is contended by the plaintiff that Flat No. A1501
admeasuring about 1001 sq. ft. and suit Flat No. 1502
admeasuring about 758 sq. ft. are adjacent flats. In the suit flat
she is the first purchaser and in Flat No. A1501, she is the second
purchaser whereas, the defendant is the second purchaser in the
suit flat and first purchaser in suit flat No. 1501.
4. It is contended by the plaintiff that defendant in his own
wisdom demolished partition wall between living room of Flat No.
A1501 and A1502 and the converted both the living room of the
said flats in single hall. Inspite of specific request and objection,
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the defendant close the common entrance of Flat No. 1502 leading
from common passage of 15th Floor and kept single common
entrance of flats having opening from original door Flat No. 1501.
5. It is contended by the plaintiff that the defendant married in
the year 2017 and therefore, under influence of his wife, started
harassing and torturing the plaintiff and her younger daughter
Heenal on one count or other. The defendant just after 6 months
of death of her husband started demanding money from the
plaintiff, failing which defendant and his wife threatened her with
dire consequences including filing false complaint under Section
498 of IPC and to put her in behind bar. It is alleged by the
plaintiff that defendant demanded 20,00,000/ for the purpose of
speculation in the share market. On failure of the said amount, he
has started abusing and threatening to dispossess her and her
daughter from the suit premises. Therefore, the plaintiff on
16.06.2018 filed complaint with the Mulund Police Station.
6. It is further contended by the plaintiff that on 16.12.2018
when she was attempting to enter her shop premises situated at
Mandakini Cooperative Housing Society Ltd., Model Town,
Mulund (West), Mumbai – 400 080, the defendant assaulted her
and abused her and prevented her from entering the shop unless
she fulfill the demand of defendant. Therefore, on 16.12.2018 she
lodged the FIR against her son at Mulund Police Station. Thus,
due to the conduct of the defendant, the plaintiff is very much
disturbed mentally and sustained physical injury. Therefore,
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plaintiff is having apprehension that she would be dispossessed out
of the suit premises at the hands of defendants.
7. It is contended by the plaintiff that suit flat is acquired by her
and her husband. Out of their earning and savings. She is co
owner of the suit flat. Flat No. 1502 is smaller having area
admeasuring about 758 sq. ft. than Flat No. 1501 which is having
area of 1001 ssq. ft. Both the units are separate and in order to
living harmoniously and peacefully, it is necessary to construct
partition wall as per the Plan, dividing both the units. Therefore,
plaintiff filed instant Notice of Motion and praying for allowing the
same.
8. The defendant opposed the Notice of Motion by filing say.
The defendant adopted the pleadings of his Written Statement.
The defendant resisted the suit of the plaintiff by filing Written
Statement cum Counter Claim. It is contended by the defendant
that both the flats were purchased out of his earnings. The
plaintiff is house wife, she did not have any source of income. The
property purchased in her name is by way of ‘Benamdar’. The
plaintiff have no right, title and interest to claim an exclusive use,
share and interest in the suit property. Therefore, defendant
prayed for dismissal of the Notice of Motion.
9. Heard both the sides. Perused Notice of Motion as well as
Written Statement. The plaintiff in order to substantiate her
contention filed Sale Deed dated 29.12.2002 of both the
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Apartment, appears to be purchased in the joint name. The
documents pertaining to the outgoing expenses in respect of Flat
No. 1502 bearing name of the plaintiff. The Plan annexed to the
Sale Deed clearly shows that both the flats are separate units and
separable by erecting common wall. The defendant although
denied that the flats purchased out of funds of the plaintiff, but did
not dispute the relationship and also the possession of plaintiff in
flat no. 1502. It appears that there is domestic dispute between
the parties. Both the parties are blood relatives. In my view, in
order to keep peace and harmony between them it is very much
essential to put a wall in between two flats so that parties can live
peaceful life. The issue that property is ‘Benamdar’ and the
defendant has spent money to purchase both the flats is triable
issue. In the event at the end of the trial if, the defendant succeed,
appropriate orders of eviction can be passed but looking to the
dispute between the parties, in my view, it is necessary to allow
the present Notice of Motion by granting Adinterim relief. Thus, I
proceed to pass the following order :
ORDER
1. Notice of Motion No. 20 of 2019 is hereby made absolute in
terms of prayer clause (a).
2. Both the parties to bear cost of erection of wall in equal
proportion.
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3. Parties to bear cost of Notice of Motion.
4. Notice of Motion No. 20 of 2019 is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 21.11.2019 Greater Bombay.
Dictated on : 21.11.2019
Typed on : 21.11.2019
Draft Submitted on : 21.11.2019
Checked on : 22.11.2019
Signed on : 22.11.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
25/11/2019 at 4.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
21/11/2019
JUDGMENT/ORDER signed by P.O.
on
23/11/2019
JUDGMENT/ORDER uploaded on 25/11/2019
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