Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 120-2018 in SU 2616-2017
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.120 OF 2018
(CNR No.MHCC01-000391-2018)
IN
SUIT NO.2616 OF 2017.
(CNR No.MHCC01-011225-2017)
Shahnawaz Ahmed Ansari }...PLAINTIFF.
Versus
Akhlaque Ahmed Ansari and Ors. }...DEFENDANTS.
------------------------------------------------------------------------------------------------
Shri.Mishra, learned advocate for the plaintiff.
Shri.M.A.Khan, learned advocate for defendant Nos.1 to 3.
------------------------------------------------------------------------------------------------
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
-----------------------------------------------------------------------------------------
O R A L O R D E R
(Delivered on 10/12/2021)
1. By filing this Notice of Motion, plaintiff has claimed relief
as under;
a) Pending the hearing and final disposal of the suit, the
defendants and/or anybody claiming through them, shall be
restrained by an order and injunction of this Hon’ble Court from
creating any third party right and/or inducting any third person
in the suit properties or any part of the suit properties.
b) Pending the hearing and final disposal of the suit, the
defendants and/or anybody claiming through them, shall be
restrained by an order and injunction of this Hon’ble Court from
disturbing plaintiffs peaceful use and occupation of the premises
viz. Shop No.5, Mubarak Manzil, situated at Sankil Street, 2nd X
Lane, Byculla (West), Mumbai in any manner.
c) Pending the hearing and final disposal of the suit, this Hon’ble
Court be pleased to appoint a Court Commissioner with direction
to inspect the suit properties and submit a report alongwith
photographs of the suit properties, before the Hon’ble Court.
d) Pending the hearing and final disposal of the suit, this Hon‘ble
Court be pleased to appoint a fit and proper person as the
Receiver with all the powers under Order XL, Rule 1 of the Code
of Civil Procedure, 1908 for the suit properties and to partition
the same by metes and bounds and to do the needful.
-- 1 of 10 --
2 NM 120-2018 in SU 2616-2017
2. Read the affidavits filed in support their respective
contentions by plaintiff & contesting defendants. Heard learned
Shri.Mishra advocate for the plaintiff and learned Shri.M.A.Khan
advocate for defendant Nos.1 to 3. Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff? ...Partly yes.
ii) Whether balance of convenience lies in his
favour? ...Partly yes.
iii) Whether irreparable loss will cause to the
plaintiff if interim injunction as claimed is not
granted? ...Partly yes.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that though suit properties are in the
names of defendant Nos.1, 2 & 3 as per the details given in the plaint,
all the suit properties are acquired from joint income & efforts of the
plaintiff & defendant Nos.1, 3 & 5. He argued that one of the suit
property viz. flat No.B-104 is standing in the name of defendant No.1
but said property is also acquired from the common business of the
family which is being run by plaintiff alongwith defendant No.1, 3 & 5
yet, defendant No.1 has illegally gifted said suit property to defendant
No.3 by executing Gift Deed dtd.25/08/2011 about which, plaintiff
learnt in year 2017. He argued that as per the principles of
Mohammedan Law, defendant No.1 is not competent to execute Gift
Deed in respect of said entire property without consent of plaintiff and
-- 2 of 10 --
3 NM 120-2018 in SU 2616-2017
on that count also, Gift Deed is illegal. He argued that photograph
produced on record by the plaintiff clearly shows that said Flat No.104
is jointly acquired by plaintiff alongwith defendant Nos.1, 3 & 5. He
argued that one of the suit property viz. Shop No.5 is in use &
occupation of the plaintiff and defendants are trying to illegally
dispossess the plaintiff from the said shop. He argued that if temporary
injunctions as prayed are not granted, it will cause an irreparable loss to
the plaintiff. He argued that it is necessary to appoint Court
Commissioner and Court Receiver also. In support of his argument,
learned advocate for the plaintiff has placed reliance on the following
authorities;
i)
Damodar Kashinath Rasane Vs. Sahajadibai (Smt.) w/o. Bapubhai Momin
reported in
1988 (2) Bom. C.R. 339,
ii)
Noorunissa alias Pichamma Vs. Rahaman Bi and others
reported in
CDJ 2001 MHC 1064.
iii)
Pichai Mohamed & Others Vs. P.P. Muthu Mohamed & Others
reported in
CDJ 1981 MHC 228.
5. As against this, learned advocate for defendant Nos.1 to 3
argued that out of the six suit properties, four properties are the
tenanted properties which cannot be partitioned in view of the
provisions of the Maharashtra Rent Control Act due to which, suit filed
for partition of said properties is not maintainable. He argued that Shop
No.5 was given to the plaintiff only for looking after it when defendant
Nos.1 and 2 had been to Haj in year 2011 but plaintiff has refused to
vacate the said shop after defendant Nos.1 & 2 returned back from Haj.
He argued that defendant No.1 has gifted flat No.104 by executing a
registered Gift Deed dtd.25/08/2011 within the knowledge of plaintiff
and there is no bar under the Mohammedan Law that his entire
property cannot be disposed of by a Mohammedan during his lifetime
due to which, contention of the plaintiff in respect of Gift Deed cannot
-- 3 of 10 --
4 NM 120-2018 in SU 2616-2017
be accepted. He argued that plaintiff has fraudulently got transferred
rent receipt of Shop No.5 in his name from the name of defendant No.2
and got transferred electric meter in his name. He argued that case of
plaintiff is based on false and fabricated documents, relief of interim
injunction can be granted only if the person claiming it has come before
the court with clean hands but since plaintiff's case is based on false
contentions, plaintiff is not entitled for equitable relief of temporary
injunction. He submitted that defendant No.1 has already filed a
counterclaim against the plaintiff for recovery of possession of Shop
No.5 and on that count also, plaintiff is not entitled for interim relief in
respect of Shop No.5. In support of his argument, learned advocate for
defendant Nos.1 to 3 has placed reliance on the following authorities;
i)
Vasant Pratap Pandit Vs. Anant Trimbak Sabnis
reported in
LAWS (SC) 1994 4 56,
ii)
Billimoria Jehan Vs. Indian Institute of Architects
reported in
LAWS (BOM) 2004 10 36.
I have gone through those authorities.
6. Admittedly, defendant No.1 is the father, defendant No.2 is
the mother, defendant No.3 is the brother, defendant No.4 is the sister
and defendant No.5 is the eldest brother of the plaintiff. Admittedly, suit
is filed for declaration that plaintiff is entitled for 1/5th share in the suit
properties, for partition of those properties by metes and bounds, for a
relief that Gift Deed dtd.25/08/2011 shall be declared as illegal, null
and void and for relief of injunction for restraining the defendants from
creating third party interests in the suit properties.
7. Contention of the plaintiff is that all the suit properties are
acquired from the joint income and efforts of the plaintiff himself and
defendant Nos.1, 3 and 5 in a common business of the family which is
being run by the plaintiff alongwith defendant Nos.1, 3 and 5. There is
-- 4 of 10 --
5 NM 120-2018 in SU 2616-2017
no material in support of said contention of the plaintiff. Suit properties
in the suit are Shop No.5 in Mubarak Manzil, Room No.2 in Sara
Manzil, Shop No.3 in Sara Manzil, Room No.11 in Chawl No.7, Hut
No.263 and flat No.B-104. As per the own contention of the plaintiff
himself, shop No.5, Room No.2, Shop No.3 and Room No.11 are
tenanted premises. Plaint averments show that tenancy of shop No.5
stands in the name of defendant No.2, tenancy of Room No.2 stands in
the name of defendant No.1, tenancy of shop No.3 stands in the name
of defendant No.2 and tenancy of room No.11 stands in the name of
defendant No.5. Since those four premises are tenanted premises, those
premises cannot be partitioned in view of the provisions of Maharashtra
Rent Control Act. In absence of any supporting material, contention of
the plaintiff cannot be accepted that those four properties are acquired
from the common business of the family which, according to the
plaintiff, is being run by plaintiff alongwith defendant No.1, 3 & 5.
8. So far as suit property bearing flat No.B-104 situated at
Habib Palace Co-operative Housing Society is concerned, it is the
contention of the plaintiff that even though said flat is purchased in the
name of defendant No.1, initially it was acquired in the names of
plaintiff and defendant Nos.3 and 5 and rent receipt was in the name of
plaintiff & defendant No.5 however, as per agreement of sale executed
afterwards by the developer on 05/09/2006, name of defendant No.1
alone is shown as purchaser. Photograph of Name Board of residents of
B-Wing of Habib Palace Co-operative Housing Society is placed on
record by the plaintiff which shows that name as Shamim S.S.Ansari is
mentioned against flat No.B-104. Learned advocate for the plaintiff
submitted that words S.S. denote the names of plaintiff and defendant
No.5. Since it is an admitted fact that ownership documents in respect
-- 5 of 10 --
6 NM 120-2018 in SU 2616-2017
of said flat is standing in the name of defendant No.1, in absence of any
material to show that defendant No.1 has purchased it by utilizing the
funds of his sons, the name as Shamim S.S.Ansari appearing on the
Name Board is not sufficient for accepting that plaintiff has rights and
interests in respect of said Flat No.B-104.
9. Again so far as the argument that defendant No.1 cannot
dispose off entire Flat No.B-104 is concerned, I could not find any force
in the said argument because, there is no bar under the Mohammedan
Law that a Mohammedan person cannot dispose of his own property by
way of Gift or Sale during his lifetime. The restriction in that regard is
for executing a Will only in respect of the property and hence, the
argument advanced on behalf of the plaintiff that Gift Deed is illegal
under the principles of the Mohammedan Law is not acceptable.
10. So far as Hut No.263 standing in the name of defendant
No.5 is concerned, again there is no material for accepting the
contention of the plaintiff that it is acquired by utilizing the joint
income of himself and defendant Nos.1, 3 & 5. Thus, material available
on record is
prima-facie not sufficient for accepting the contention of
the plaintiff that he is entitled for shares in any of the suit properties
due to which, prayer made in terms of prayer clause (a) for restraining
the defendants from creating third party interests in the suit properties
cannot be accepted.
11. Defendant Nos.1 to 3 have admitted that one of the suit
property viz. Shop No.5 in Mubarak Manzil is in use and occupation of
the plaintiff. As mentioned earlier, plaintiff has failed to make out a
prima-facie case to show that Shop No.5 is acquired by utilizing the
joint income of himself and defendant Nos.1, 3 & 5 however,
admittedly, plaintiff is in use and occupation of the said shop. It is the
-- 6 of 10 --
7 NM 120-2018 in SU 2616-2017
contention of defendant Nos.1 to 3 that plaintiff has occupied said shop
in year 2011 when he was asked to look after it by defendant Nos.1
and 2 when they had been to Haj. It is their further contention that on
their returning back from Haj, plaintiff has refused to vacate the said
shop.
12. Learned advocate for defendant Nos.1 to 3 argued that
plaintiff has committed forgery by getting the rent receipt of Shop No.5
and electric meter transferred in his name, plaintiff has not come before
the court with clean hands and hence, plaintiff is not entitled for
equitable relief of temporary injunction. He argued that defendant No.1
has already filed a counterclaim for recovery of possession of said shop
and on that count also, plaintiff is not entitled for temporary injunction
in respect of the said shop.
13. Record shows that defendant No.1 has filed a counterclaim
on 04/01/2018. Learned advocate for the plaintiff submitted that copy
of said counterclaim is not served on the plaintiff by defendant No.1.
Learned advocate for defendant Nos.1 to 3 had fairly conceded that
copy of counterclaim had remained to be served on the plaintiff. He has
served the copy of the counterclaim on the advocate for the plaintiff on
02/12/2021. May that it be so, the question for consideration is
whether plaintiff is entitled for temporary injunction in respect of Shop
No.5, as claimed?
14. Plaintiff has contended in the plaint that he has learnt that
developer has undertaken redevelopment of Mubarak Manzil wherein
Shop No.5 is situated. In the affidavit filed in support of the Notice of
Motion, plaintiff has contended in para 3 that defendant Nos.1 and 2
have threatened him to forcibly dispossess from one of the suit premises
viz. Shop No.5 without following due process of law and defendant
-- 7 of 10 --
8 NM 120-2018 in SU 2616-2017
No.1 in active collusion and connivance with defendant No.3 is likely to
translate their threats into action.
15. It is the contention of those defendants that plaintiff was
allowed to look after the business in the said shop in year 2011 when
defendant Nos.1 and 2 had been to Haj but after their returning back
from the Haj, plaintiff has refused to vacate the said shop and as such,
plaintiff is in illegal and unlawful use and occupation of the said shop.
Plaint averments show that tenancy in respect of Shop No.5 is in the
name of defendant No.2 however, as mentioned earlier, plaintiff is
admittedly is in use and occupation of said Shop No.5. Even though,
defendant No.1 has filed a counterclaim for recovery of possession of
said Shop No.5 from the plaintiff, it does not appear that those
defendants have specifically denied the statements made by the plaintiff
in the affidavit filed in support of Notice of Motion that defendant Nos.1
& 2 have threatened him to forcibly dispossess from said suit premises
and defendant No.1 in active collusion and connivance with defendant
No.3 is likely to translate their threats into action. Having regards to
the said aspect, this court is of the opinion that
prima-facie case and
balance of convenience both do lie in favour of the plaintiff in respect of
his prayer for Shop No.5 because, even a trespasser in settled possession
cannot be dispossessed without adopting due process of law. This court
is satisfied that irreparable loss will cause to the plaintiff if defendant
Nos.1 to 3 are not temporarily restrained from forcibly dispossessing
him from the said Shop No.5.
16. So far as the prayers made for appointment of Court
Commissioner and Court Receiver are concerned, contentions raised by
the plaintiff and material produced by him in support of his those
contentions are not sufficient for accepting those prayers hence plaintiff
-- 8 of 10 --
9 NM 120-2018 in SU 2616-2017
is not entitled for those reliefs. For these reasons, by answering point
Nos.(i) to (iii) accordingly, I pass the following order.
O R D E R
Notice of Motion No.120 of 2018 is partly allowed as
under.
Pending final disposal of the suit, defendant Nos.1 to 3
and/or anybody claiming through them is temporarily restrained
from disturbing plaintiff’s use and occupation in respect of Shop
No.5, Mubarak Manzil situated at Sankli Street, 2nd X Lane,
Byculla (W), Mumbai, without following due process of law.
Other prayers made by the plaintiff in the Notice of Motion
are rejected.
Date : 10/12/2021. (P.P.RAJVAIDYA)
Dictated on : 10/12/2021 Judge, C.R.No.62,
Checked on : 13/12/2021 City Civil Court,
Signed on : 13/12/2021 Mumbai.
-- 9 of 10 --
10 NM 120-2018 in SU 2616-2017
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
13/12/2021 at 01.45 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 10/12/2021
Order signed by P.O. on 13/12/2021
Order uploaded on 13/12/2021
-- 10 of 10 --