Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment Suit No.272/2020
MHCC010002392020 Presented on : 06.01.2020
Registered on : 22.01.2020
Decided on : 08.09.2026
Duration : 06 07 17
Years Months Days
(Exh. 29)
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT
BOMBAY
SHORT CAUSE SUIT NO. 272/2020
(CNR NO. MHCC010002392020)
Mrs. Srishti Ajay Gawde,
(Old name Vijaya Vidyadhar Upadhyay),
Age: 44 years, Occupation: Private job,
adult, Indian Inhabitant,
residing at Srishti Niwas, near Ulhas Vidyalay,
B. K. No.1370/10, Maratha Section - 32,
Ulhasnagar - 4, Thane 421004. … Plaintiff
Versus
1 Mrs. Nirmala M. Dubey,
Age about 55 yrs, Occ: Housewife,
Hanuman Gali, Ambika Nagar, Wagle Estate,
Thane (W).
2 M/s Richmond Realtors,
Through its partner Mr. Abhishek Bhaskar
Vichare, having their office at 1/A, Mangesh
Industrial Estate, S. Samuel Marg, Opp.
Container Yard, Nahur (West), Mumbai -
400078. … Defendants
CORAM : R. V. BHAKTA, JUDGE,
COURT ROOM NO. 61.
DATE : 08.09.2026
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Judgment 2 Suit No.272/2020
Appearances: -
Adv. Sheetal Malvankar for the plaintiff.
Ex-parte against defendant Nos.1 and 2.
JUDGMENT
(Dictated and pronounced in open Court)
(Delivered on 8th day of September, 2026)
This is a suit for specific performance under Section 34 of
the Specific Relief Act in respect of a room admeasuring 11 ft. × 10 ft.,
i.e., 110 sq. ft., comprising ground plus one floor, bearing Room No.
27½, situated near Hanuman Mandir, Subhash Nagar, Nahur Village
Road, Bhandup West, Mumbai - 400078 (hereinafter referred to as the
“suit property”).
2. The case of the plaintiff:
(i) It is the case of the plaintiff that the plaintiff and defendant no. 1
are real sisters and joint owners of the suit property. Defendant no. 2 is
the developer. According to the plaintiff, the suit property falls under
the SRA Scheme. The suit property originally belonged to the plaintiff’s
and defendant no.1’s father, late Vidyadhar Upadhyay, who expired on
20.08.1994, leaving behind the plaintiff, defendant no. 1 and their
mother as his legal heirs.
(ii) It is the further case of the plaintiff that, after the demise of their
father, the suit property was transferred in the name of their mother,
Shantidevi Upadhyay and accordingly, she became an eligible occupier
as reflected in Annexure II of the Redevelopment Scheme. She had also
entered into and signed a Consent Letter dated 31.07.2010.
(iii) However, subsequently, Shantidevi Upadhyay passed away on
14.02.2012, leaving behind the plaintiff, defendant no. 1 and another
unmarried sister of the plaintiff and defendant no. 1, namely Vimla
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Judgment 3 Suit No.272/2020
Upadhyay. Vimla Upadhyay who subsequently passed away on
09.04.2013. Thus, the plaintiff and defendant no. 1 are the only
surviving members and are entitled to a 50% share each in the suit
property.
(iv) The plaintiff added that, as the suit property was taken up for
redevelopment, defendant no. 1, with the intention of depriving the
plaintiff of her lawful rights and share in the suit property, intentionally
provided false information to defendant no. 2 by stating that she is the
only surviving member entitled to alternate accommodation and rent.
(v) Upon coming to know of the said fact, the plaintiff issued a notice
to defendant no. 1, calling upon her to recognize and provide the
plaintiff’s 50% share in the suit property. However, despite the said
notice, defendant no. 1 failed to take any steps in that regard. Hence,
the present suit.
3. On the Contrary, the defendants failed to appear before the
Court. Consequently, the suit proceeded ex-parte against them.
REASONS
4. The plaintiff, in order to substantiate her case, has
examined herself by filing her evidence affidavit at Exhibit-10. In
support of her case, she has relied upon the documents listed at Exhibit-
11.
5. As stated hereinabove, the defendants failed to appear
before this Court despite due and proper service of summons. Hence,
the suit proceeded ex-parte against the defendants. Merely because the
defendants have failed to appear and contest the matter, it cannot
automatically be presumed that the plaintiff is entitled to the reliefs
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Judgment 4 Suit No.272/2020
sought by her. This Court is still required to independently assess the
evidence placed on record and determine whether the plaintiff has
succeeded in proving her case on the touchstone of the “preponderance
of probabilities” and consequently, whether she is entitled to the reliefs
claimed in the suit.
6. The evidence of the plaintiff unfolds that, the suit property
originally belonged to the plaintiff’s and defendant no.1’s father, late
Vidyadhar Upadhyay, who expired on 20.08.1994, leaving behind the
plaintiff, defendant no. 1 and their mother as his legal heirs. It is the
case of the plaintiff that, after the demise of their father, the suit
property was transferred in the name of their mother, Shantidevi
Upadhyay and accordingly, she became an eligible occupier as reflected
in Annexure II of the Redevelopment Scheme. She had also entered into
and executed a Consent Letter dated 31.07.2010.
7. However, subsequently, Shantidevi Upadhyay expired on
14.02.2012, leaving behind the plaintiff, defendant no. 1 and another
unmarried sister of the plaintiff and defendant no. 1, namely Vimla
Upadhyay, who subsequently expired on 09.04.2013. Thus, according to
the plaintiff, the plaintiff and defendant no. 1 are the only surviving
legal heirs and are entitled to an equal 50% share each in the suit
property.
8. The evidence of the plaintiff further discloses that, as the
suit property was taken up for redevelopment, defendant no. 1, with the
intention of defeating and depriving the plaintiff of her lawful rights
and share in the suit property, intentionally furnished false information
to defendant no. 2 by representing that she was the only surviving
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Judgment 5 Suit No.272/2020
member entitled to alternate accommodation and rent. Upon coming to
know of the said fact, the plaintiff issued a notice to defendant no. 1,
calling upon her to recognize and provide her 50% share in the suit
property. However, despite the said notice, defendant no. 1 failed to
comply with the plaintiff’s demand.
9. In support of her case, the plaintiff has produced and relied
upon various documents, including two electricity bills for the months
of February/March 1996 and May 2013 (Exh.12 Colly); the Death
Certificate of the plaintiff’s father issued by the Municipal Corporation
of Greater Mumbai (Exh.13); a photocopy of the Pitch Holders Card
duly issued by the Colony Officer, ‘S’ Ward, Bhandup, in the name of
late Mrs. Shantidevi Vidyadhar Upadhyay (Art.A); Notice to Produce
dated 06.02.2024 issued to the defendants (Exh.14); the track report
for Consignment No. RM672236735IN obtained from the website of
India Post, showing that the letter containing the Notice to Produce was
duly received by defendant no. 1 on 10.02.2024 (Exh.15); the original
Ration Card bearing No. 324416, originally issued in the name of the
plaintiff’s late father and subsequently transferred in the name of the
plaintiff’s mother after his demise (Exh.16); the original Hutment
Dweller’s Identity Card issued by the Municipal Corporation of Greater
Mumbai, ‘S’ Ward, in the name of the plaintiff’s late mother, Smt.
Shantidevi Vidyadhar Upadhyay (Exh.17); the extract of Annexure II
showing the name of the plaintiff’s mother, prepared by the competent
authority and obtained by the plaintiff under the Right to Information
Act, 2005 (Exh.18 subject to proof of its contents); the Consent Letter
dated 31.07.2010 executed by the plaintiff’s mother (Exh.19 subject to
proof of its contents); the Death Certificate of the plaintiff’s mother,
Smt. Shantidevi Vidyadhar Upadhyay (Exh.20); the Death Certificate of
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Judgment 6 Suit No.272/2020
the plaintiff’s sister, Vimla Vidyadhar Upadhyay (Exh.21); a photocopy
of the Consent Letter dated 23.05.2017 (Art.B); the plaintiff’s
advocate’s letter dated 12.02.2024 (Exh.22); a photocopy of the
Agreement dated 23.05.2017 furnished by defendant no. 2 to the
plaintiff (Art.C); the office copy of the plaintiff’s advocate’s letter dated
28.03.2018 addressed to defendant no. 2 (Exh.23); the A. D. Card
showing due receipt of the said letter dated 28.03.2018 by defendant
no. 2 (Exh.24); the office copy of the plaintiff’s advocate’s letter dated
11.02.2019 (Exh.25) and the acknowledgment postal receipt (Exh.27).
10. The evidence affidavit of the plaintiff, along with the
documents referred to hereinabove, establishes that the original owner
of the suit property was the plaintiff’s and defendant no. 1’s father, late
Vidyadhar Upadhyay. After his demise, the suit property was transferred
in the name of the mother of the plaintiff and defendant no. 1.
Accordingly, the name of their mother was also entered in the list of
eligible occupants. After the demise of their mother, the plaintiff and
defendant no. 1 remained the surviving legal heirs. Accordingly, both
the plaintiff and defendant no. 1 are entitled to an equal 50% share in
the suit property.
11. As stated herein-above, the defendants failed to appear
before this Court despite due service and consequently, the evidence led
by the plaintiff has remained unchallenged and unrebutted. Upon
considering the evidence placed on record, this Court is satisfied that
the plaintiff has succeeded in establishing, on the touchstone of the
“preponderance of probabilities”, that she is entitled to a 50% share in
the suit property.
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Judgment 7 Suit No.272/2020
12. Accordingly, the plaintiff is entitled to the reliefs sought in
the present suit. Having considered the facts and circumstances of the
case, the pleadings and the evidence placed on record, this Court
proceeds to pass the following order:
ORDER
1. The suit is hereby decreed with costs.
2. It is hereby declared that the plaintiff and defendant no.1 are
each entitled to an equal 50% share in the suit property.
3. Defendant no. 2 is hereby directed to execute the agreement for
alternative/permanent accommodation in the joint names of the
plaintiff and defendant no. 1, in lieu of the suit property.
4. Defendant no. 1 is hereby permanently restrained from creating
any third-party interest in respect of the suit property.
5. A Court Commissioner be appointed for the effective partition of
the suit property by metes and bounds. In the event the suit
property cannot be conveniently divided by metes and bounds,
the same may be sold and the sale consideration shall be divided
equally between the plaintiff and defendant no.1.
6. A decree be drawn up accordingly.
7. Accordingly, Short Cause Suit No.272/2020 stands disposed of.
DATE: 08.09.2026 (R. V. BHAKTA),
JUDGE,
C. R. NO.61,
CITY CIVIL COURT,
GR. MUMBAI.
Typed on : 08.09.2026
Checked on : 08.09.2026
Signed on : 08.09.2026
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Judgment 8 Suit No.272/2020
"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
Date: 08.09.2026, at 05.40 p. m. Siddhesh S. Shirke
Stenographer (Grade-I)
Upload date and time Name of Stenographer
Name of the Judge (with Court no.) : R. V. Bhakta (C. R. No. 61)
Date of pronouncement of
Judgment/Order : 08.09.2026
Judgment/Order signed by the P. O.
on : 08.09.2026
Judgment/Order uploaded on : 08.09.2026
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