Final Order 1

Order Details: Other
Pdf Text: ORDER ..1.. N/M No. 144/2019 In Suit 2366/2018
MHCC010004022019
Presented on : 10-01-2019
Registered on : 10-01-2019
Decided on : 30-11-2023
Duration :4Ys. 10Ms. 20Ds
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 144 OF 2019
IN
S.C. SUIT NO.2366 OF 2018
Smt. Vijyalaxmi Narayan Mamidala ...Plaintiff
Versus.
Mr. Kumarswamy
@ Ravi Ramaswamy Chiluka & Ors. ...Defendants.
Appearance:
Advocate Shri Bhimrao A. Powar for the plaintiff.
Advocate Ms.Neelam More for defendant No. 1 and 2.
Advocate Mr. Salian for defendant No. 3 and 4.
Advocate Mr. Sanjeev Kumar Rapolu for defendant No. 5.
CORAM : HIS HONOUR JUDGE
Anand P. Kanade
COURT NO.2
DATED : 30th November 2023
ORAL ORDER
1. The plaintiff has taken out the present notice of motion for
temporary injunction restraining the defendant No.1, 2 and 5 from
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alienating the suit property or creating third party interest in the suit
property till the decision of the present suit. Following properties are
the suit properties.
Nos. Sub.Nos. IMMOVABLE PROPERTIES
A I Room No.6, 521-Champshi Dharsi Chawl, Khed Galli,
Prabhadevi, Mumbai- 400 025 in lieu of said room
premises developer allotted new premises under SRA
scheme being Room No. 102, Gandharva Towar, “B”
Wing, First Floor, Khed Gallli, Prabhadevi, Mumbai-400
025.
II Room No. 436, “C” Wing, Prabhadevi CHS Ltd., Plot
No.1087 & 1088., Bldg. No.2, Prabhadevi, Mumbai -
400 025.
III Room No. 407, 4th Floor, Sneha Sadan CHS Ltd., Laxmi
Nagar, Opp.BEST Bus Depot, Ghatkoper (East), Mumbai
400 070.
IV Room No.406, Rani Seth Bldg. No.1 Khed Galli,
Prabhadevi, Mumbai 400 025.
B (MOVABLE PROPERTIES(GOLDEN ARTICLES)
i Two golden bangles of 4 (Four) tolas.
ii One(1) golden chain of 4 (Four) tolas
iii One (1) necklace of 2.5(Two & half ) tolas.
iv One hair clip of one and half (½) tolas
v Two ear rings (Karna Phule) ½ (half) tola.
C JOINT FAMILY FUND
Joint family fund about Rs. 12,00,000/- with Mr. Umesh
Chiluka Ramaswamy (Defendant No.2)
2. Plaintiff has filed the suit for partition and separate possession of
of her 1/5 undivided share in the suit properties. It is the case of the
plaintiff that defendant Nos. 1 and 2 are her real brothers and
defendant Nos 3 and 4 are her real sisters. During the life time of their
parents, plaintiff and defendants Nos 1 to 4 were residing jointly. The
family of plaintiff and defendant Nos 1 to 4 is joint family. According to
the plaintiff during the life time of their parents all the family members
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were conducting business of providing tiffin to mill workers and from
the said business the joint family earned huge income. According to the
plaintiff the suit properties are ancestral properties acquired from the
joint family income during the life time of their parents. Late
Ramaswamy Kumrayya Chiluka i.e father of the plaintiff died on
16.06.1987 and mother Venkatama Ramaswamy Chiluka died in the
year 2014. According to the plaintiff after their demises plaintiff and
defendant Nos 1 to 4 jointly hold meetings on various occasions for
partition of the suit properties. But defendant Nos 1 and 2 prolonging
the partition of suit properties. According to the plaintiff she has 1/5
undivided share in the suit properties. As the defendant Nos 1 and 2
denied to effect the partition of the suit properties, plaintiff is
constrained to file present suit for partition and separate possession of
her undivided share. According to plaintiff ample time will be required
for final adjudication of the suit. She has prima facie case. The
defendant Nos 1 and 2 are trying to alienate the suit property hence, to
avoid the further multiplicity of proceedings she has filed the present
notice of motion for temporary injunction.
3. Defendant Nos 1 and 2 filed their reply. Defendant Nos 1 and 2
denied that the suit properties are joint family/ancestral properties of
the plaintiff and defendant Nos 1 to 4. The defendant denied that
plaintiff has share in the suit properties . The suit is time barred. As per
Will Deed dated 06.05.1981 after the demises of their mother Late
Venkatama Ramaswamy Chiluka immovable property A(I) is
transferred in the name of defendant Nos 1 and 2. It is the case of
defendant Nos 1 and 2 that on 25.09.1990, 20.02.1992 and 05.05.1993
they purchased the suit properties A-II to A-IV. It is the specific case of
the defendant Nos 1 and 2 that the suit properties are their self
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acquired properties and plaintiff has no right, title and interest in the
suit properties. Defendant Nos 1 and 2 denied that during the life time
of their parents their family was joint family and having business of
providing tiffins to the mill workers. They denied that from the said
joint family business they earned huge amount and from the income of
that business suit properties were purchased during the life time of the
parent. According to the defendant Nos 1 and 2 their father was mill
worker.
4. Defendant No.5 filed his reply and stated that on 16.06.2008 he
purchased suit property A(IV) from defendant Nos 1 and 2 and since
then he is in possession of that property as owner. According to
defendants the plaintiff has not come before the court with clean hands
and she has no prima facie case. Balance of convenience lies in favour
of the defendants and no irreparable loss will be caused if the
temporary injunction is refused. Hence, defendant Nos 1, 2 and 5
prayed to reject the notice of motion.
5. Defendant Nos. 3 and 4 filed their reply and states that suit
property is ancestral property and it is acquired by their parents during
their life time. They further contended that Defendant Nos 1 and 2 are
illegally using, occupying and enjoying suit properties. They also
contended that plaintiff and defendant Nos 3 and 4 shares are also
involved in the suit property. Hence prayed to allow the notice of
motion. Heard both sides. Perused the papers on record.
6. Following points arise for my determination and I have recorded
my findings against them for the reasons there under :-
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Sr.
No.
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case ? In the negative.
2. Whether balance of convenience lies in
favour of the plaintiff ? In the negative
3. Whether plaintiff will suffer irreparable
loss if the temporary injunction is
refused?
In the negative
4. What order ? As per final order
R E A S O N S
7. All the points are interlinked with each other. Hence, in order to
avoid the repetition of facts, I would like to decide all the points
together.
AS TO POINT NOS 1 TO 3
8. In the present case it is not disputed that the plaintiff and
defendant Nos 1 to 4 are real brothers and sisters. It is not disputed that
their father Ramaswamy Kumrayya Chiluka died on 16.06.1987 and
mother Late Venkatama Ramaswamy Chiluka died in the year 2014. It is
also not disputed that defendant No.5 has purchased the suit property
A(IV).
9. It is the specific case of the plaintiff that the suit properties are
joint family properties of the plaintiff and defendant Nos 1 to 4. She has
1/5 undivided shares in the suit properties. According to the plaintiff
the suit properties were purchased out of the joint family income. To get
the relief of temporary injunction as prayed, plaintiff has to prima facie
prove that fact. It is the specific case of the plaintiff that during the life
time of their parents they were having joint family consisting of plaintiff
and defendant Nos 1 to 4 and their family was conducting business of
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providing tiffin to the mill workers. Plaintiff pleaded that from the said
joint family business their family earned huge amount of money and
during the life time of their parents suit properties were purchased out
of that income. Except the bare pleading of plaintiff there is no iota of
evidence adduced by the plaintiff that during the life time of her parents,
plaintiff and defendant Nos 1 to 4 were residing jointly as a joint family
members and they were carrying on business of providing tiffin to the
mill worker and from that business they were earning huge amount of
money and out of that income the suit properties were purchased. On
the contrary the documents produced on record by the defendants
shows that as per Will Deed dated 06.05.1981 suit property A(I) was
given to Late Venkatama Ramaswamy Chiluka and after the demises
Venkatama Ramaswamy Chiluka immovable property A(I) is transferred
in the name of defendant Nos 1 and 2. It is also revealed that on
25.09.1990, 20.02.1992 and 05.05.1993 defendant Nos 1 and 2
purchased the suit properties A-II to A-IV. Father of plaintiff died on
10.06.1987 and suit properties A-II to A-IV were purchased by
defendant Nos 1 and 2 after the death of their father, Venkatama
Ramaswamy Chiluka. That fact negate the case of plaintiff that during
the life time of her parents suit properties were purchased. The plaintiff
has filed on record birth certificate extract and ration card but those
documents are not much helpful to plaintiff to prove that the suit
properties are joint family properties. After going through the papers on
record I am of view plaintiff has prima facie failed to show that suit
properties are joint family properties of plaintiff and defendant Nos 1 to
4 and she has 1/5 undivided shares in it. Considering that aspect I am
of the view balance of convenience is not laying in favour of the plaintiff
and defendant Nos 2 and 5 will suffer irreparable loss if the relief of
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temporary injunction is granted. For the aforesaid reasons I answer
point Nos 1 to 3 in negative and following order is passed.
ORDER
Notice of Motion No.144/2019 is rejected with no order as
to costs.
(Anand P. Kanade)
Judge
Date: 30.11.2023 City Civil Court, Gr.Mumbai
Dictated on : 30.11.2023
Transcribed on : 01.12.2023
Draft Submitted on : 01.12.2023
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED
UPLOAD DATE AND TIME Mrs. R.R.Hate
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. Anand P. Kanade
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
30.11.2023
JUDGMENT/ORDER signed by P.O.
on
02.12.2023
JUDGMENT/ORDER uploaded on 03.12.2023
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