Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
MHCC010011302020
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.448 OF 2020
IN
SUIT NO.3019 of 2019
1. Sunderji Mulji Shah and Ors ... Plaintiffs
V/s
1. Municipal Corporation of Greater
Mumbai and Anr. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 8th DAY OF SEPTEMBER, 2023
-: Appearances: -
The learned Adv. Surej Kudalkar for plaintiffs.
The learned Adv. Khandalakar for defendant No.2,
ORAL ORDER
The plaintiff has taken out present notice of motion for
claiming the relief of temporary injunction, thereby the defendant be
restrained from entering, trespassing, damaging and erecting any
structure on the suit plot.
Herein, it is to be noted that, the plaintiff has not press
prayer clause (b). The plaintiff has deleted defendant no.1. Therefore, I
am only dealt with the prayer clause (a).
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2 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
2. In short, it is contention of the plaintiff that, plaintiff no.1
is the owner of in respect of all that piece and parcel of land
admeasuring about 2365 sq. mtrs., from which an area of
approximately 1043 sq. mtrs., is acquired by MCGM for construction of
Goregaon Mulund Link Road and the balance net plot area is 1322 sq.
mtrs., bearing Survey No. 52, CTS No. 636, situated at Village Nahur,
Mulund (W), Goregaon Link road, opposite Wockhard hospital, Mulund,
Mumbai (herein after referred to as ‘suit plot’).
3. The plaintiff no.2 is a builder and developer and in
possession of suit plot including the structure standing thereon. The
plaintiff no.1 and plaintiff no.2 jointly developing the suit plot. The
defendant no.2 is encroacher and trespasser who has demolished and
tried to construct illegal structure on the suit plot.
4. One Ratanshi Karsandas and other were the original owner
of suit plot. They sold Khoti right as well as their right, title and interest
of the larger property in favour of plaintiff no.1
vide sale deed dated
28/12/1971. After purchase of said property, plaintiffs came to know
that Mr. Sadashiv Manik Kambekar and Ganpat Manik Kambekar were
shown as protected tenants of the landed property. It is contended that,
thereafter protected tenants namely Mr. Sadashiv Manik Kambekar and
Ganpat Manik Kambekar assigned and surrendered their tenancy rights
in favour of plaintiff no.1
vide deed of assignment dated 30/06/2012.
Therefore, the plaintiff no.1 made an application to make necessary
corrections in revenue record. Accordingly, the name of the plaintiff
no.1 came to be mutated in the record of rights.
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3 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
5. Thereafter, plaintiff no.1 appointed plaintiff no.2 as
developer for development of suit property. There were various
litigation pending in respect of suit properties at Bombay City Civil
Court and Hon’ble High Court. In the said litigation, consent term was
came to be executed on 06/01/2012 in favour of the plaintiffs by
Ansarsha Associates. They have also executed registered conveyance
deed on 12/04/2012 in favour of plaintiff no.2, who has appointed as
developer by the plaintiff no.1. The plaintiff has paid assessment taxes,
bills and other charges of suit property. Thus, plaintiffs are in exclusive
use, occupation and possession of the suit property. Plaintiffs protected
suit property by constructing boundary/protection wall and/or
compounding wall with iron at entrance in suit property.
6. It is contended that various illegal structures erected by the
encroachers on foot path abutting and touching to the compound wall
of suit property. The plaintiff has made various complaint with MCGM
for removal of encroachment. However, the MCGM did not pay any
heeds to the plaintiff’s request. On 16/11/2019, the defendant no.2
started to break open the compound wall and causes damages to
compound wall after making big hole with an intention to enter into the
suit property. Therefore, the plaintiff raised agitation and also written
complaint to the police station. He also sent complaint to MCGM. The
defendant no.2 carrying on tea vending stall out-side the suit property.
However, he tried to encroach inside the suit property by demolishing
the compound wall on 16/11/2019 and 18/11/2019. The plaintiff by
his efforts succeeded to restrain defendant no.2. The plaintiff has also
lodged complaint in the local police station. Now, the plaintiff having
apprehension that the defendant no.2 may encroach upon suit property.
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4 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
Hence, it is necessary to restrain the defendant no.2 from entering into
the suit property illegally. Thus, the notice of motion.
7. The defendant no.2 strongly opposed the notice of motion
by filing reply on affidavit. It is contended that, the plaintiffs have no
right, title and interest in the suit property. The plaintiff no.1 claiming
right over the suit property on the basis of purported agreement
executed between himself and Manager of Khoti i.e., Ratanshi
Karsandas. It is submitted that Khoti lands were already abolished by a
Statue. Hence, Ratanshi Karsandas did not have any right, title and
interest to execute any agreement.
8. It is further contended that, plaintiffs are claiming to have
taken rights from the protected tenants. But tenants were not having
any right, title and interest in respect of suit property. No record filed to
show that tenants have become owner by virtue of 32 G proceedings.
9. It is further submitted that, father of defendant no.2 has
purchased the suit land from Ansar Asha, who had become owner of
land by virtue of decree passed by the Civil Court. Therefore, the father
of defendant no.2 is become lawful owner of suit property. The plaintiff
has not given proper description of suit property. The entire suit
property is admeasuring 2365 sq. mtrs., however in the plaint, it is
mentioned only 13 Gunthas. Therefore, for want of proper description
of suit property, the suit is liable to be dismissed.
10. It is further contended that, the defendant has challenged
the order of Tahsildar, Kurla whereby name of plaintiff no.1 came to be
mutated in record of rights. However, it was dismissed and the order
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5 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
was confirmed till by learned Additional Divisional Commissioner,
Konkan Division. Now, the defendant has taken steps to challenge said
order. As no prior notice was given to the defendant while entering the
name of plaintiff no.1 in the record of rights, hence, it is not binding on
him. The plaintiff has approached this Court by suppressing material
fact.
11. It is further contended that, the deceased father of the
defendant has started tea stall in the suit premises. As the suit premises
was in slum area, therefore patch holder card was given to the father of
defendant. Thereafter, it was divided into two parts. The father of
defendant also started running business of Pan bidi shop in the 2nd part.
Again, it was sub divided into three parts and the father of defendant
started running the business of laundry shop. The suit premises is in
possession of the defendant. The plaintiff no. 1 has no concerned with
the suit property. On the basis of false and fabricated documents, the
plaintiffs want to grab suit property. Hence, the notice of motion may
kindly be rejected.
12. The plaintiffs have filed rejoinder to the reply filed by the
defendant and strongly opposed all adverse contention. The plaintiff
denied that the father of defendant has purchased suit property. It is
denied that the defendant is in possession of suit property. It is
contended that the suit property is in exclusive use, occupation and
possession of the plaintiff being thereof.
13. It is contended that, the plaintiff has initially filed the suit
against the defendant no.1 i.e., MCGM, however, later on it came to be
deleted. It is contended that, the defendant no.1 MCGM has illegally
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6 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
taken possession of 204. 64 sq. mtrs., lands of suit property under the
grab of expansion of road line. At that time, MCGM had demolished
some portion of compound wall of suit property. The defendant no.2’s
shop is abutting to compound wall of plaintiffs. Due to expansion of
road line, defendants’ illegal structure has already affected. After
demolishing of wall of plaintiff’s compound, they applied to MCGM for
permission to construct the same with an intention to protect suit
property. However, the defendant no.2 has his eye over the suit
property. Hence, he tried to encroach upon it. The MCGM also issued
notice to defendant no.2 to surrender his shop, for expansion of road
lines. The defendant no.1 MCGM offered alternate commercial
premises to defendant no.2. Said letter has been challenged by the
plaintiff by filing suit on Stamp no. 1622/2022. It is contended that, if
the defendant succeeded to encroach over suit property, then the
plaintiffs would suffer irreparable loss. Hence, notice of motion may
kindly be allowed.
14. Heard the learned advocate for the plaintiffs and the learned
advocate for the defendant no.2 at length. Perused the record.
15. Following points arise for my determination to which I have
recorded my findings with reasons as follows: -
Sr. No. Points Determination
1. Whether plaintiffs are entitled for the
reliefs of temporary injunction as
claimed in the notice of motion?
Yes
2. What order? As per final order.
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7 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
REASONS
As to Points no.1: -
16. It is well settled that, for claiming the relief of temporary
injunction, the plaintiff has to prove three well established principles in
his favour i.e., prima facie case and balance of convenience lies in his
favour and if the temporary injunction is refused, then he is going to
suffer irreparable loss which cannot be compensated in terms of money.
In support of his claim, the plaintiff has filed the deed of
assignment dated 30/06/2012, executed by protected tenants Kamlakar
Kambekar and Jyoshana Bhoir and others in favour of the plaintiff.
Upon perusal of same, it reveals that they have admitted that one
Ratanshi Karsandas and others were the owners of suit property. They
sold suit property
vide sale deed dated 28/12/1971 to plaintiff no.1.
Accordingly, plaintiff no.1 became owner of suit property. Protected
tenants assigned their tenancy rights for consideration of Rs. 42 lacs in
favour of the plaintiff. It is supported by a receipt wherein 11 protected
tenants have received their amount of consideration and accordingly
they executed deed of assignment in favour of the plaintiff. The plaintiff
has also filed copy of Index-II in respect of deed of assignment
registered with the office of registrar of assurance. The plaintiff has
also filed copy of 7/12 extract, wherein his name is mutated in record
of rights in respect of suit property on the basis of deed of conveyance.
The copy of deed of conveyance is also filed on record which is
supported by receipts. The plaintiff has filed photograph to substantiate
that defendants is trying to encroach in the suit premises.
17. Herein, it is to be noted that the defendant no.2 claiming
that his father was the owner of the suit property. To support his
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8 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
contention, defendant has also filed various documents on record, such
as the consent term executed in between the parties, copy of agreement,
application for information under the Right to Information Act and copy
of decree passed in RAD suit no. 350 of 2020 etc.
18. It is pertinent to note that, the defendant no.2 admits that
name of plaintiff no.1 has been mutated in the record of rights. The
defendant no.2 has challenge said mutation entry. However, his
objection came to be rejected and the entry in mutation record was
upheld till Additional Divisional Commissioner. The said order is not yet
set aside. The name of the plaintiff came to be inserted on the basis of
deed of conveyance executed by the owner and protected tenants.
Prima facie these documents proves possession of the plaintiff over the
suit property. The needle of balance of conveyance also tilts in favour of
the plaintiff.
19. It is further to be noted that, defendant no.2 has filed Suit
no.3019 of 2019 (Stamp no. 2059 of 2021) against the plaintiff wherein
he has taken out notice of motion no.1132 of 2022. The defendant no.2
claimed ad-interim temporary injunction against the plaintiff. However,
it came to be rejected
vide order dated 29/03/2022. At this juncture
nothing on record to show that said order was set aside. Be that as it
may, plaintiffs prima facie proves their possession over the suit premises
and as such if defendants succeeded in their attempt to encroach over
the suit property, then naturally plaintiffs are going to suffer irreparable
loss, which cannot be compensated in terms of money. Hence my
answer to point no.1 is in the affirmative.
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9 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
As to point no.2:
20. In view of my above discussion, I pass the following order:
ORDER
Notice of Motion No. 448 of 2020 stands allowed and made
absolute in terms of prayer clause (a).
Defendant no.2 is hereby restrained by in order of
temporary injunction from entering, trespassing, damaging and
erected any structure on suit property till decision of suit.
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.08.09.2023 (C.R. No.1)
Dictated on : 08.09.2023
Transcribed on : 13.09.2023
Checked & Signed on : 15.09.2023
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10 Ord. in NM no 448 of 2020, in Suit no. 3019 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 15.09.2023 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 08.09.2023
JUDGMENT/ORDER signed by P.O. on 15.09.2023
JUDGEMENT/ORDER uploaded on 15.09.2023
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