Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.89/2019 ..1.. Suit No.3218/2018
CNR No.MHCC010002262019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.89 OF 2019
IN
SUIT NO.3218 OF 2018
Fulaji Barkya Keni alias Phoolaji
Balkrishna Keni through his
Power of Attorney Holder
Yogesh Fulaji Keni .. Plaintiff
Versus
Shree Borbadevi Mahamandal (Regd.)
and others .. Defendants
P.S. Tiwari, advocate for plaintiff
Satyendra R. Singh, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 02nd April, 2019
ORAL ORDER
Notice of motion is taken out by plaintiff seeking an order of
temporary injunction restraining defendants, their servants, agents,
representatives and all persons claiming through and on behalf of them
from dispossessing him from suit premises i.e. Room No.1, admeasuring
about 31.35 sq. meter, land bearing survey No.34A(part), CTS
No.259(part) of Village : Borla, Taluka : Kurla, Mumbai Surburban
District, Borla Govandi, Chinchpada, Govandi (East), Mumbai88,
without following due process of law.
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2. It is contended by plaintiff that he is owner and in possession of
suit premises since year 1965. Said fact is in the knowledge of original
owner Rustam Gagarat. Defendant No.1 is registered association,
defendant No.2 is chairman, defendant No.3 is secretary and defendant
No.4 is treasurer of defendant No.1. It is further contended by plaintiff
that he is running and carrying on fishing business and keeping all
articles of fishing in suit premises.
3. It is further contended by plaintiff that in the year 1975 he
started Gymnasium in the name of “Ekvira Vayamshala” in the suit
premises for public at free of cost. Even he has purchased all
equipments relating to Gym from his own pocket. He has not taken any
single penny either from public or defendants. It is further contended
that Additional Tahsildar, Kurla passed N.A. order dated 16.12.2012 in
favour of plaintiff and city survey officer also issued plan and as per
N.A. order, plaintiff is paying N.A. taxes to concern department. He is
also having other documents showing address of suit premises.
4. It is also contended that in the year 2018, defendant Nos.2 to 4
started demanding possession and key of suit premises in order to start
their own Vayamshala. On refusal of plaintiff, these defendants started
harassing plaintiff. On 20.11.2018, plaintiff found that some unknown
person tried to damage and break open the lock of suit premises. These
defendants threatened plaintiff that they will take forcible possession of
suit premises. Therefore, plaintiff went to Govandi police station to
lodge report against defendants but Govandi police refused to register
report and advised him to file civil suit. It is further contended that
these defendants along with some antisocial elements again on
03.12.2018 at about 5.00 p.m. came to suit premises and threatened
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plaintiff about taking possession of suit premises. Above said events
constrained plaintiff to file suit with present notice of motion seeking
above relief.
5. Defendants filed their reply to notice of motion and denied each
and every statements and allegations made in the plaint as well as in
notice of motion. It is contended that CTS No.259 of Village Borla,
Taluka Chembur, District Mumbai Suburban belongs to Government of
Maharashtra. Suit land does not belong to Rustam Ardesar Gagarat as
can be seen from extract of property card of CTS No.259. N.A. order
dated 16.12.2012 is fabricated document and it is created at the
instance of plaintiff to substantiate right of plaintiff over suit premises
and to commit fraud upon defendants. Said N.A. order has been issued
by Additional Tahsildar and not by City Survey Officer. In the plaint,
address of Ekvira Vyayamshala is mentioned as Govandi Village,
Chinchpada, Borla Govandi, Mumbai88 whereas residence of plaintiff
is mentioned as Phulaji Keni Chawl, Room No.1, Chinchpada, Borla
Govandi, Mumbai. But Municipal Assessment Bill and extract of
property register card issued in the name of plaintiff shows address of
plaintiff as CTS No. 254, Fulaji Keni House, Borla Govandi, Chinchpada,
Village Borla, Mumbai88. It is further submitted that Ekvira
Vyayamshala in fact exist upon plot of land bearing CTS No.258 of
village Borla and name of holder of land is Hirjibhai Dinshaw
Villimorya.
6. It is further contended that plaintiff has come to this Court with
unclean hands and wants to commit fraud upon defendants. Plaintiff is
not in exclusive use, occupation and possession of suit premises and is
no way concerned with suit premises. Ekvira Vyayamshala in fact was
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financed through MLA funds of the year 19992000 and sum of
Rs.2,11,000/ was sanctioned by the Collector of Mumbai. Said
Vyayamshala was being constructed by Government funds and not by
plaintiff. In the year 2013, Shri Dinesh alias Babloo Panchal, local
Corporator sanctioned Rs.4,97,700/ for repair and renovation work of
said Vyayamshala.
7. By filing additional reply these defendants contended that as per
property extract of CTS No.259 of Village Borla, holder of land is shown
as Government of Maharashtra. Previously suit premises was used as
Vyayamshala but after passing of adinterim relief plaintiff with ulterior
motive put new board showing that premises belongs to Government of
Maharashtra and also put board of Aanganwadi. This conduct of
plaintiff goes to show that premises in question does not belong to
plaintiff and he is trying to mislead the court and to commit fraud upon
defendants by furnishing different story that too without furnishing any
documents. Hence, urged to reject notice of motion.
8. By filing rejoinder and additional rejoinder plaintiff denied the
contentions of defendants and submitted that defendants failed to
produce single document to show that suit premises i.e. room No.1,
admeasuring about 31.35 sq. mt., land bearing CTS No.259 part, Survey
No.34 A part belong to them or Maharashtra Government. Entire
affidavit in reply of defendants is in respect of claim of C.T.S. No.258
but plaintiff is not claiming C.T.S. No.258.
9. Perused notice of motion, affidavit in reply support of it, reply
and additional reply filed by defendants, rejoinders filed by plaintiff,
plaint and documents filed on record.
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10. Heard learned counsel for parties. They advanced their
submissions in accordance with respective contention of parties.
Learned counsel for defendants has placed reliance upon the authorities
in the following cases:
1. Ramramreshwari Devi and Others Vs. Nirmala Devi and Other,
(2011) 8 Supreme Court Cases 249.
2. Chandra Shashi Vs. Anil Kumar Verma (1995) 1 Supreme Court
Cases 421.
3. Maria Margarida Sequeira Fernandes and others Vs. Erasmo Jack De
Sequeira (Dead) Through Lrs (2012) 5 Supreme Court Cases 370.
4. Om Prakash Navani & Anr. Vs. Herebert Joseph Pereira & Ors.,
2003(3) ALL MR 67
5. Anathula Sundhakar Vs. P. Buchi Reddy (Dead) by Lrs & Ors., AIR
2008 Supreme Court 2033
6.Shri Cutchi Visa Oswal Derawasi Jain Pathshala Vs. Shri Cutchi Visha
Oswal Derawasi Jain Mahajan & Anr. 2005(1) ALL MR 484
7.Arvind s/o. Ramlu Pattiwar Vs. Sambashiv Ramlu Pattiwar and
others, 2008(4) Mh.L.J. 568
8.T. Arivandandam, Vs. T. V. Satyapal and another, AIR 1977 Supreme
Court 2421
9. Shayak Mohammed and others Vs. Iqbal Ahmed, AIR 1973 Rajasthan
115
10. Harishchandra Narayan Maurya Vs. Rajendraprasad Dargahi Varma
1997(3) Mh.L.J. 437
11.International Airport Authority of India Vs. Shri Bimrao Chandappa
Dasar 2005(3) ALL MR 257
12.Agnigundala Venkata Ranga Rao Vs. Indukuru Ramchandra Reddy
(Dead) by LRs and others 2018(1) Mh.L.J. 94 and urged to dismiss
notice of motion.
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11. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under :
POINTS FINDINGS
1.Whether plaintiff has got prima facie case? ...Yes.
2.Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is refused?
...Yes.
3.Whether balance of convenience lies in favour of
plaintiff?
...Yes.
4. What order? As per final
order
REASONS
As to point Nos.1 to 3
12. Before dealing with points involved, I consider legal position
emerges from various authorities on the aspect of grant and refusal of
temporary injunction. In the case of Maria Margarida cited supra
principles for grant and refusal of injunction have been laid down. In
the matter of Anathula Sudhakar referred earlier the position in regard
to suits for prohibitory injunction relating to immovable property has
been summarised. In the case of Shri Cutchi Visa Oswal Derawasi
Jain Pathshala, principles for grant of temporary injunction has been
expounded. In the matter of Shayak Mohammed conditions to be
satisfied for grant of temporary injunction have been explained. There is
no quarrel about ratio laid down in cited authorities. Keeping in view
principles which emerges from these authorities now I consider
contentions of parties in light of documents placed on record.
13. From the copy of order dated 16.10.2012, passed by Additional
Tahasildar, Kurla III, Chembur, it is apparent that plaintiff being
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occupant using the land ad measuring 31.35 square meters comprised
in survey No.34A part of CTS No.259 Part of Village Borla, Taluka
Kurla, Mumbai Suburban District since 1993 and he was directed to pay
penalty since August, 1993 till July, 2013 in relation to nonagriculture
use of said land. Map attached to the said order point outs that
construction over the said land has been shown by letters ABCD and its
address with the name of plaintiff is mentioned as Ekvira Vyayamshala,
Govandi Village, Chinchpada, Borla Govandi, Mumbai and its area is
shown as 31.35 square meter. In property card of CTS no.259 said land
is shown as agricultural, so for use of land admeasuring 31.35 square
meters of it for non agricultural purposes, plaintiff has been penalised.
Although, in property card of CTS no.259 said land is shown belonging
to Government of Maharashtra but plaintiff's possession over land
admeasuring about 31.35 sq. meter, bearing survey No.34A(part), CTS
No.259(part) of Village : Borla, Taluka : Kurla, Mumbai Surburban
District, Borla Govandi, Chinchpada, Govandi (East), Mumbai88 is
fortified by notice dated 03.10.2012 Additional Tahsildar, Kurla III,
Chembur and order dated16.10.2012, passed by Additional Tahasildar,
KurlaIII, Chembur. Plaintiff has also filed receipts to show that he has
paid penalty in pursuance to said order and also paid land revenue of
subsequent year.
14. Learned advocate for defendants drawn my attention to
property card of City Survey No.259 to show that said survey No. 259
of Mauza Borla stands in the name of Government of Maharashtra and
he submitted that therefore, order of Additional Tahasildar, Kurla III,
Chembur can be said to be obtained fraudulently. It is to be noted that
plaintiff himself did not approach to the Additional Tahasildar for
regularization of suit premises in his name. Notice has been issued by
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Additional Tahasildar, Kurla III, Chembur to the plaintiff in respect of
use of land of suit premises for non agricultural purposes on 03.10.2012
and order was passed on 16.10.2012. Thus, it is clear that said order
was not passed just before filing of present suit in order to get
advantage of the same. Plaintiff is not claiming his possession over
whole land of survey No.259. He is claiming his possession over only
on 31.35 square meter i.e. part of city survey No.259 of village Borla.
The defendants have not brought primafacie material to show that
aforesaid order of Additional Tahsildar is false and fabricated. Merely
on the count that in said order aforesaid portion of land is shown
belonging to Rustam Gangrat primafacie an inference can not be drawn
that said order is false and fabricated. Had such order would not have
been passed then the defendants could have obtained information in
that regard from the office of the Additional Tahsildar. However,
nothing is placed on record by them to show that they obtained any
such information. Therefore, prima facie contention of defendants in
that regard does not inspire confidence.
15. It is pertinent to note that as it appears from property card of
survey No.259 that land of the same has been acquired by Government
in the year 2006 and it has been recorded in the name of Government
of Maharashtra in the year 2007. That means prior to 2006 it was not
standing in the name of Government of Maharashtra. No material is
brought as to in whose name said land was standing prior to 2006.
16. It is to be noted that defendants claimed that Ekvira
Vyayamshala at Borla has been financed from MLA Funds in the year
19992000 and it was renovated in the year 20132014 through funds
of Corporator Bablu Panchal. Documents filed by defendants only show
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sanction of funds for Vyayamshala at Govandi by the Collector Mumbai
in the year 1999. But, defendants have not filed on record Sanctioned
plan relating to construction of Gymnasium of area admeasuring 15 x
20 feet which was allegedly made through the MLA Funds by the
Mumbai Slum Improvement Board, Mumbai to show primafacie that it
relate to suit premises. The document relating to sanction of amount for
repairs to Gymnasium at Devnar, Govandi through the funds of
Corporator Bablu Panchal is placed on record but same does not
demonstrate that said fund was utilized prima facie for repairs of suit
premises. Defendants have claimed that said Ekvira Vyayamshala in fact
exists upon plot of land bearing CTS No.258 of Village Borla. Thus, they
claimed that suit premises exists on CTS No.258 and not on CTS no.
259 of Village Borla. Defendants have not filed any document in that
regard. There is nothing placed on record to show the defendants made
any grievance with concerned Government Authority about act and
claim of plaintiff in relation to suit premises. Had really suit premises
was constructed with MLA funds, the defendants could have
approached to concerned Government Authority seeking eviction of
plaintiff under the provisions of Government Premises Eviction Act. But
nothing is placed on record to show that they did so. Plaintiff is not
claiming his any right over land of CTS No.258 of village Borla. He is
claiming his right only over suit premises i.e. 31.35 square meter of
land bearing survey No.34A part of CTS No.259 part of village Borla
Taluka Kurla. It is argued by learned advocate for defendants that
alleged possession of plaintiff over suit premises can not be said to legal
so he is not entitled to injunction. He placed reliance upon authority in
the case of Agnigundala Venkata Ranga Rao cited supra. In that case
land held by plaintiff was already declared to be in excess of ceiling
limit by Tribunal and in that circumstances it held that, “he was neither
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holding the land nor to be in its lawful possession so as to enable him to
exercise any ownership rights against any other private party over suit
land”. Facts of present case are different. So defendants can not take
assistance of said authority.
17. Defendants have also filed copy of property card of CTS No.254
which shows that it stands in the name of plaintiff. They have also filed
copy of tax receipt to show that Keni House belonging to plaintiff
situate on CTS No.254 and it is argued that plaintiff has got no concern
with suit premises. There is no dispute that CTS no. 254 belongs to
plaintiff. Defendants have also filed another tax receipt to show that it
relate to Fulaji Keni Chawl of Kurla. I have gone through said tax
receipt. It relates to CTS No.259 Part. Although description in it is
mentioned as 'Fulaji Keni Chawl' but property identifies by property
number and CTS No.259 part is mentioned in it. Tax receipt of CTS
No.254 and CTS No.259 Part filed by defendants are clearly relating to
different properties standing in the name of plaintiff. Demand Number
in both tax receipts are different. So it can be said that assessment bill
relate to different properties. It is argued that about user of suit
premises for running Aganwadi by plaintiff's daughter is not pleaded in
plaint and thus he suppressed said fact, made deviation in his story.
True, plaintiff did not raise pleading about running Aganwadi in plaint
but he has elaborated said fact in his rejoinder. Then it can not be said
to be suppression of fact. At the same time he also pleaded that he also
using suit premises for keeping fishing net. Possibility can not be ruled
out that different portions of suit premises must have been used for
different purposes. So much advantage can not be taken by defendants
in that regard. In the facts of matter authority in the case of
International Airport Authority of India is not of help to defendants.
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18. Plaintiff has also filed copy of electricity bills of 27.01.1998 and
dated 06.11.2018. They relate to same premises of Gymnasium. Even
photograph of premises filed by defendants show that plaintiff's name
plate affixed to door of said premises. In above circumstances also
prima facie plaintiff has established his possession over suit premises.
Merely on the basis of photographs filed by defendants prima facie it
can not be said that change of user of suit premises has been made by
plaintiff after getting adinterim order. Prima facie it can not be said
that adinterim order is obtained by plaintiff on the basis of forged
document and more so plaintiff has prima facie shown their possession
over suit premises so question of relegating suit premises to original
position and contempt action does not arise. Therefore, authorities in
cases of Rameshwari Devi, Chandra Shashi, Om Prakash, Arvind
Pattiwar, T. Arivandandam, Harishchandra are not of assistance to
defendants in facts of present matter.
19. It is to be noted that although plaintiff has not filed any
document to show his possession over the suit premises since 1965 but
the documents placed on record prima facie show his possession over
the suit premises since the year 1993. That being so, plaintiff has right
and interest in the suit premises and he cannot be dispossessed from the
suit premises without following due process of law. It is useful here to
mention authority in the case of Prataprai N Kothari Vs. John
Braganza (1999) 4 SCC 403 relied by plaintiff wherein it was held that
“it is a principle of law that a person who has been in long continuous
possession of an immovable property can protect the same by seeking an
injunction against any person in the world other than the true owner”. In
present case defendants have not prima facie material to show their
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right over suit premises. Per contra, from the documents placed on
record prima facie it is clear that plaintiff is in possession of suit
premises so balance of convenience also lies in his favour. In case, if he
is dispossessed without following due process of law then he will suffer
irreparable loss which cannot be compensated in terms of money.
Therefore, I answer point Nos.1 to 3 in affirmative and passed following
order.
ORDER
1. Notice of Motion No.89 of 2019 is allowed and made absolute in
terms of prayer clause (a).
2. Costs will be the cause in the suit.
3. Accordingly, Notice of Motion No.89 of 2019 is disposed off.
(M. T. Asim)
Judge
Date : 02.04.2019 Gr. Bombay
Typed on : 02.04.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05.04.2019, 3.00 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
02.04.2019
JUDGMENT/ORDER signed by P.O.
on
04.04.2019
JUDGMENT/ORDER uploaded on 05.04.2019
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