Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 19-19 in S.C.Suit No. 17-2019
1 Date : 21.11.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 19 OF 2019
IN
S.C. SUIT NO. 17 OF 2019
(CNR NO.MHCC010000512019 )
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
that defendant be directed and ordered by a
mandatory order and injunction to erect a partition
wall between shop no. 2 and 3 as it originally stood
and as shown in the Floor Plan by Red Colour Line, as
also open an entrance door on front side of Shop no. 3
from the front side behind the rolling shutter of shop
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NM 19-19 in S.C.Suit No. 17-2019
2 Date : 21.11.2019
no. 3, as it originally stood as shown by Green Colour
on the Plan Exh. G hereto and additionaly close
existing doors between Shop No. 1 and 2 connecting
Unit No. A1 from inside by a brick wall to enable
plaintiff to enjoy her shop no. 3 and Unit No. 1 without
any disturbance from defendant.
In the alternative
Plaintiff be permitted to erect a participation wall
between shop no. 2 and 3 as it originally stood and as
shown in the Floor Plan by Red Colour Line, as also
open an entrance door on front side of shop no. 3 from
the front side behind the Rolling Shutter of Shop No. 3,
as it originally stood as shown by Green Colour on the
Plan hereto and additionally close existing doors
between Shop No. 1 and 2 connecting unit No. A1
from inside by a Brick wall to enable plaintiff to enjoy
her Shop No. 3 and Unit No. 1 without any distrubance
from defendant.
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 suit premises and the ascertain the correct
position of partition wall between shop no. 2 and 3 and
entrance door 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
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between Shop No. 2 and 3 as it originally stood and as
shown in the Floor plan by Red Colour Line, as also
open an entrance door on front side of Shop No. 3 as it
originally stood as shown by Green Colour on the Plan
hereto at the cost of defendant and / or plaintiff as this
Hon’ble Court thinks fit and proper, and additionally
close existing doors between Shop No. 1 and 2
connecting Unit No. A1 from inside by a brick wall to
enable plaintiff to enjoy her Shop No. 3 and Unit No. 1
without any disturbance from Defendant.
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. Shop no. 3 admeasuring 175
sq.ft. Carpet in Ladiwala Colony now known as
Mandakini Cooperative Housing Society Ltd. Model
Town, Mulund – West, Mumbai 400 080, and Unit No.
A1 admeasuring 500 sq. ft. Carpet in Ladiwala Colony
now known as Mandakini Cooperative Housing
Society Ltd., Model Town, Mulund – West, Mumbai –
400 080 and plaintiffs right to ingress and egress from
the entrance of the said Shop No. 2, in any manner
what so ever, till the actual erection of partition wall
between shop no. 2 and 3 as it originally stood and as
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shown in the Floor Plan by Red Colour Line, as also
open an entrance door on front side of the Shop No. 3
from the front side behind the Rolling Shutter of Shop
No. 3 as it originally stood as shown by Green Colour
on the Plan hereto and additionally existing doors
between shop no. 1 and 2 connecting Unit No. A1 is
closed from inside by a brick wall, to enable plaintiff to
enjoy her shop no. 3 and unit No. 1 without any
disturbance from defendant.
d) Pening 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 his Hon’ble Court from selling transferring,
alienating, encumbering, creating third party rights of
any nature whatsoever, in respect of the Suit Premises.
e) Adinterim and interim reliefs in terms of prayers
clause (a) to (d) above.
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 her husband Late Shri.
Mahendra Shivji Thacker died on 24.01.2018. During his lifetime
and out o his saving they have acquired various properties in the
Mumbai. The Shop No. 3 admeasuring about 175 sq. ft. Carpet
area and Unit No. A1 admeasuring about 500 sq. ft Carpet area
was purchased by her at Ladiwala Colony now known as
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5 Date : 21.11.2019
Mandakini Cooperative Housing Society Ltd. Model Town,
Mulund – West, Mumbai 400 080. It is contended by the plaintiff
that she is the owner and occupier of shop no. 3, Unit A1.
(hereinafter shall be referred to as suit property”). And shop no. 1
and 2 are owned by the defendant. All three shops are on front
side and Unit No. A1 is on the Back side, are amalgamated and
connected from inside. There is a separate entrance in respect of
the Unit No. A1 from back side which remains closed from inside.
There are three separate rolling Shutter on the front side of all
three shops but since Shop No. 3 is connected Shop No. 2, which is
in the center, there is only one entrance at present leading to all
three shops. Further inside the Rolling Shutter of shop no. 3, there
is a 3 feet wall and glass partition, whereby at present there is no
direct access to the shop no. 3 from main road.
3. It is contended by the plaintiff that the suit shop premises
bearing Shop No. 3 and Unit No. A1 are acquired by her and she
is sole owner and exclusive possessor of the suit premises. The
defendant under the influence of her wife on 16.12.2018 when she
was attempting to enter into the shop, prevented her from entering
into shop and man handle his own mother and therefore, she
lodged a complaint in Mulund Police Station against her son. She
has also annexed photographs showing her son beating her in
front of the shop. Therefore, she filed suit for injunction
restraining the defendant from interfering with her possession in
respect of the suit shop with present Notice of Motion seeking
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NM 19-19 in S.C.Suit No. 17-2019
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erection of wall in between the shop no. 3 and other shop
belonging to the defendants.
4. The Notice of Motion is opposed by the defendant by filing
say. The defendant resisted the suit of the plaintiff by filing
Written Statement cum Counter Claim. The defendant resisted the
suit by filing Written statement. It is contended by the defendant
that the plaintiff have no independent source of Income. The suit
property including properties mentioned in the Annexure – A of
counter claim is purchased by his Late father during his lifetime.
Therefore, he is having every right, title and share in the property
purchased by his father.
5. It is contended by the defendant that he called upon the
plaintiff to effect the partition of all the properties including suit
property to which the plaintiff denied. It is further contended by
the defendant that suit shops were given on rent and rental
income is credited in the account of plaintiff. Hence, until and
unless the properties are divided by mets and bounds, the plaintiff
can not claimed exclusive share in the suit shop. Therefore,
defendant prayed for rejection of Notice of Motion and also prayed
for appointing of Court Commissioner in his counter claim.
6. Heard both the sides. Perused Notice of Motion and Written
Statement. The plaintiff in order to claim her right, title and
interest in the suit shop No. 3 and Unit No. A1 has place Sale
Deed on record. It is contended by the defendant that aforesaid
property was purchased from brother of plaintiff who is his
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maternal uncle, out of commercial transaction, the Agreement
which is not registered. The entire Unit was amalgamated as per
the BMC plan. The suit shops can not be separated without
permission of BMC.
7. On perusal of the Agreement annexed by the plaintiff, it
appears to me that Shop No. 3 and Unit No. A.1 was purchased by
the plaintiff in the year 1994. The Plan annexed by the plaintiff
clearly shows that the suit property is separable from shop no. 1
and 2. The defendant did not dispute the title of the plaintiff. He
has also admitted that the entire shop No. 1 to 3 including Unit
No. A1 was given on rent and the rental income is credited in the
account of plaintiff. But, he failed to produce any document
showing that for putting a wall in the suit shop, it requires the
permission of BMC.
8. On perusal of the photographs annexed by the plaintiff, it
appears that the defendants have manhandled his own mother. It
appears that their dispute goes to such an extent that son is
beating his own mother. In my view, in order to keep peace and
harmony in between the blood relatives, it is very much essential
to erect the wall in between suit shop no. 1 and 2. As far as
regarding the claim of the plaintiff that other properties and the
suit property are of Joint Hindu Family and it requires partition, in
my view, the said issue is triable issue. Hence, in view of the
above fact and circumstances, in my view, Notice of Motion needs
to be allowed. Thus, I proceed to pass the following order :
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8 Date : 21.11.2019
ORDER
1. Notice of Motion No. 19 of 2019 is hereby made absolute in
terms of prayer clause (a).
2. The cost of construction be borne by both the side equally.
3. Parties to bear cost of Notice of Motion.
4. Notice of Motion No. 19 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 : 23.11.2019
Signed on : 23.11.2019
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NM 19-19 in S.C.Suit No. 17-2019
9 Date : 21.11.2019
“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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