Final Order 1

Order Details: Notice of Motion
Pdf Text: 318-2019 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.164 OF 2019
CNR NO.MHCCO10004672019
IN
S.C. SUIT NO.318 OF 2019
The Our Lady of Dolours Coop,
HSG SOC.Ltd.,
Through Mr.Shakil Abdulla Fodkar,
Treasures of the society,
Age about 51 years, Indian Inhabitant
of Mumbai, Plot No.CS 97, Near Wadala
Bridge, And Domnic Savio Church, Wadala(E),
Mumbai400 037.
And having his address at,
The Our Lady of Dolours Coop,
HSG SOC.Ltd., C/5, near Wadala bridge,
Antop Hill Road, Wadala(E),
Mumbai400 037. ..Plaintiff
Versus
Charisma Shelter Privet Limited,
Charisma builder and developers
Kamal Kung, 1st floor, Central Avenue
Road, Chembur, Mumbai400 071. ..Defendant
Ld. advocate Kunal Tiwari for the plaintiff
Ld. advocate J.P.Patel for the defendant
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 20/09/2019
ORAL ORDER
1. This notice of motion is filed by the plaintiff society
2
-- 1 of 8 --
318-2019 2
interalia for directing the defendant not to demolish
the compound wall of the plaintiff's society,
restraining the defendant or its agent/servants from
disturbing peaceful possession of the plaintiff and
pending disposal of the suit, status quo of the
compound wall of the plaintiff society be maintained.
2. Heard.
3. The plaintiff society is having plot No.CS 97, near
Wadala bridge, and Domnic Savio Church, Wadala
(E), Mumbai400 037. In the building, there are
total 83 units including 81 flats and two shops
constructed in the said building. The said building
was constructed in the year 1974 and at that time,
the compound wall was constructed alongwith
building of the society. The premises of the society
includes the building constructed and all the
boundary area/compound wall with all piece and
parcel of the land admeasuring 2284 sq. yard. On the
West of the plot of the society, there is plot no.102 of
the defendant and defendant is claiming to be the
owner of the same. The defendant has issued letter
dated 05/04/2018 alleging that the plaintiff society
has encroached about 77.48 sq. meter on survey
no.102 by erecting and putting compound wall
towards the East of plot no.102 and threatened for
demolishing and shifting the boundary wall of the
3
-- 2 of 8 --
318-2019 3
plaintiff society. The defendant again sent letter by
RPAD on 19/12/2018 and threatened the plaintiff
society that the defendant will demolish the
compound wall within 10 days. The compound wall
is on the land of the plaintiff society and if the said
wall is demolished, then the gate of the society will
be closed and will cause inconvenience to the flat
owners for entry. The defendant has put some
bodyguards towards entry gate and they are creating
nuisance and harassing to the members of the
plaintiff society. The concerned persons and officers
of the defendant came several times to society to
demolish the compound wall of the society and
threatened the plaintiff to demolish the wall of suit
premises without following the due process of law.
Therefore, the plaintiff society has filed this suit with
accompanying notice of motion.
4. The defendant contended that the suit is false and
not maintainable. The suit is filed by one Shakil
Abdulla Fodkar, claiming to be the treasurer of the
plaintiff. But, there is no resolution referred to and
relied upon by the plaintiff in the name of Shakil
Fodkar to prosecute the suit. This false suit is filed
by Shakil without any authority. The suit is abuse of
process of law, false and vexatious. The plaintiff has
deliberately suppressed the material facts. They have
4
-- 3 of 8 --
318-2019 4
relied upon the false and fabricated documents. The
defendant is the sole owner of CS plot no.102 @ all
the structures and trees standing thereon. The
plaintiff society is not the owner of survey no.97.
The defendant has given details of execution of title
in favour of the defendant. The office of the Mumbai
City Land Revenue and Record Department, carried
out a survey of the plot no.102 and prepared plan
and forwarded the same to the defendant vide their
letter dated 05/12/2018. The survey was carried out
in the presence of the representative of plaintiff
society. From the said plan issued by the said office,
it reveals that the plaintiff society has actually
encroached upon the property of the defendant and
the same is shown in the copy of the plan annexed.
The plaintiff society is encroacher and therefore not
entitled for any relief. Defendant prayed for dismissal
of the notice of motion.
5. On the rival submissions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated hereinafter:
POINTS
(i) Whether the plaintiff has made out a prima
facie case in its favour?
(ii) Whether the needle of balance of convenience
tilt in favour of plaintiff society ?
5
-- 4 of 8 --
318-2019 5
(iii) To whom the irreparable loss would be
caused?
(iv) What order?
FINDINGS
(i) In the affirmative
(ii) In the affirmative
(iii) To the plaintiff society
(iv) As per final order
REASONS
Point Nos. 1 to 3
6. From the pleadings, it is emerging that the land of
plaintiff society is covered by boundary wall. It is the
contention of the plaintiff society that the said
boundary wall is in existence since 1974. The
contention of the defendant that the plaintiff is
encroacher of 78.44 sq. meter land of the defendant.
On perusal of the survey map it reveals that it was
pertaining to the fixation of the boundary. It reveals
that at the time of fixing of the boundary wall
measurement of plot no.102 was carried out and at
this stage it is difficult to ascertain whether there is
an encroachment of the plaintiff society over the land
of the defendant when the plot of the plaintiff society
was not measured. Be that as it may, the map which
is filed is the photocopy in which the defendant by
red line has shown the area of plot no.102 and in
6
-- 5 of 8 --
318-2019 6
blue shed had shown the encroachment. At this
stage, the said map cannot be taken as gospel truth
unless it is put to strict proof.
7. From the pleadings of both the parties it is emerging
that there is compound wall of the plaintiff's society.
The defendant issued letter dated 02/02/2018 and
05/04/2018 intimating that plaintiff's society has
encroached upon the land of 78.44 sq. meter over the
plot no.102 of the defendant. Thereafter a letter was
issued to the plaintiff on 19/12/2018 for demolishing
the wall. The plaintiff reported the matter to the
concerned police station. It is further contention of
the plaintiff that concerned persons and officers of
the defendant came several time to the plaintiff
society to demolish the compound wall and
threatened the plaintiff to demolish the wall without
following due process of law. At this juncture, it
appears that the apprehension of the plaintiff of
demolishing the said boundary wall is well founded.
The defendant some what in the year 2017
purchased the suit property. It is not the contention
of the defendant that after the purchase the plaintiff
had erected the boundary wall over the portion of
CTS No.102. It prima facie appears that the said wall
is prior to the purchase of CTS No.102 by the
defendant and defendant cannot take law in its hand.
7
-- 6 of 8 --
318-2019 7
The argument that the plaintiff is encroacher and not
entitled for injunction is not acceptable on the count
that the survey map cannot be accepted as complete
truth unless it is proved. Prima facie there is material
to show that the boundary wall was constructed
much prior. Hence, the needle of balance of
convenience tilt in favour of the plaintiff society. In
case, injunction is not granted in favour of plaintiff
society, the defendant would demolish the wall
which was in existence since long and then the gate
of the society will be closed and the entry of the flat
owner will be banned and easementary rights of the
members of the society will be affected which cause
irreparable loss to the plaintiff. Hence, the plaintiff
has made out case in its favour and therefore I am
inclined to answer point nos.1 to 3 in the
affirmative.
Point No.4
8. In view of the forgoing discussion and findings to
point nos.1 to 3, notice of motion needs
consideration. Hence, it is expedient to pass
following order:
ORDER
1. Notice of Motion No. 164/19 is made absolute in
terms of prayer clause (a), (c) and (d).
2. It is made clear that the injunction in terms of
prayer clause (a) is only pending the disposal of the
suit.
8
-- 7 of 8 --
318-2019 8
3. Cost in the cause.
4. Notice of Motion is disposed of accordingly.
20/09/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 20/09/2019
Transcribed on : 26/09/2019
Signed on : 23/10/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
23/09/19 at 11.00 am.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
20/09/2019
Judgment and order signed by P.O. 23/10/2019
Judgment/order uploaded on 23/10/2019
-- 8 of 8 --