Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010011962019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 481 OF 2019
IN
SHORT CAUSE SUIT NO.1486 OF 2018.
Mr. Santosh Suryakant Kadam. ...Plaintiff.
Versus
Mr. Anand Suryakant Kadam & Ors. ...Defendants.
Appearance:
Adv. Ms.Shruti Dandu h/f SRA Counsel for defendant no.2 to 4.
Adv. Suresh Rajeshwar for plaintiff.
CORAM : HIS HONOUR JUDGE
Anand P. Kanade
COURT NO.2
DATED : 4th April, 2024.
ORAL ORDER
The plaintiff has taken out this notice of motion for temporary
injunction restraining the defendants from part with possession of suit
property for not creating third party interest in the suit property till the
final decision of the suit.
2. In substance plaintiff’s case is as under :-
The flat no.203, Om Shiv Kripa CHS on 2nd floor having carpet
area admeasuring 269.00 sq. ft. is the subject matter of the present suit.
According to plaintiff his father Suryakant Bhagwantrao Kadam was the
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ORDER ..2..
tenant in room no. 1/11 situated on plot of land bearing CTS NO. 706,
Survey no.62, Hissa No.9(part) of Village Mulund East. Suryakant died
on 02.07.1981 leaving behind him, his wife Smt. Sunanda and three
sons i.e., (1) Sharad (since deceased), (2) Anand and (3) Santosh. The
defendant no.2 to 4 are the legal heirs of deceased Sharad. According to
plaintiff Suryakant alongwith his wife and three sons were jointly
residing in Room No. 1/11. In the year 2004 the occupants of the
property decided to develop the said property and on 11.01.2004
appointed M/s. Amruteshwari Construction as a developer of said
property. According to plaintiff in June 2011 the said developer handed
over the possession of the suit property to Smt. Sunanda Suryakant
Kadam and since then Sunanda alongwith 3 sons were jointly residing
in the suit property. The marriage of Sharad and defendant no.2 was
solmanized in the year 1996 and after marriage they both were started
residing separately at Mithagar Road, Mulund East, Mumbai. Sharad
died on 21.03.2013 and Sunanda died on 18.08.2017. Plaintiff and
defendants are the legal heirs of Sunanda. According to plaintiff after
the demise of mother, the defendant no.1 used to reside alone in the
suit property. On 10.09.2017 the defendant no.1 started repairs work
and maintenance work in the suit property therefore he vacated the suit
property. According to plaintiff on the same day defendant no.2 to 4
entered in the suit property by breaking the lock and started residing
therein. The plaintiff apprehends that the defendant no.2 to 4 are trying
to create third party interest in the suit property and intending to part
the possession of suit property. According to plaintiff he has 1/3
undivided share in the suit property. If the defendant nos.2 to 4 will
create 3rd party interest in the suit property then there will be
irreparable loss to the plaintiff. Hence plaintiff is constrained to file the
present suit and also filed the present notice of motion.
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ORDER ..3..
3. Defendant no.2 to 4 filed their reply and resisted of the notice of
motion. They have denied all the material allegations in the plaint
against them. They have admitted that Suryakant was the tenant in the
room no.1/11. That property was given to developer and after
development suit property came to be allotted to the Sunanda. They
have admitted that Sunanda and her three sons are the legal heirs of
deceased Suryakant. They have admitted that Sunanda and his 3 sons
were residing jointly in the suit property. They have denied that the
plaintiff has undivided equal share in the suit property. According to
them plaintiff is not entitled to get the declaration of his 1/3 share in
the suit property. According to defendant since beginning Sharad and
defendant no.2 to 4 were residing in the suit property. The defendant
denied that they are trying to create the third party interest in the suit
property. Hence they prayed to reject the notice of motion.
4. Heard both sides. Perused papers on record following point arise
for my determination and I have recorded my findings against them for
the reasons given therein as under. Thus plaintiff prove prima facie case
in the affirmative.
SR.
NO.
POINTS FINDINGS
1. Whether plaintiff has made out prima
facie case ? In the affirmative.
2. Whether the balance of convenience
lies in favour of plaintiff ? In the affirmative.
3. Whether the irreparable loss would be
caused to the plaintiff if the temporary
injunction is refused ? In the affirmative.
4. What Order ? As per final order.
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ORDER ..4..
REASONS :-
POINT NO.1 TO 3:-
5. In order to avoid the repetition all the facts on record, I would
like to decide all the points together. In order to get the order of
temporary injunction plaintiff must prima facie prove that he has right
in the suit property. In the present case it is not much disputed that
Suryakant alongwith his wife and three sons were residing in the room
no.1/11 and he was the tenant in that property. It is also not much
disputed that property was given for development to M/s.
Amruteshwari Construction. It has also disputed that after development
of the property M/s. Amruteshwari Construction handed over the
possession of suit property to Sunanada Suryakant Kadam and since
June 2011 Sunanda alongwith her 3 sons were residing in the suit
property. It is also not much disputed that plaintiff and defendant no.1
and Sharad are the legal heirs of deceased Sunanda. It is not the case of
defendant that the suit property was exclusively acquired by Sharad and
defendant no.2 to 4 are the exclusively owner of the suit property. After
going through the papers and pleading on record it reveals that
defendant no.2 to 4 are residing in the suit property. It also reveals that
plaintiff and defendant no.2 to 4 are the joint owners of the suit
property. Plaintiff has prima facie prove that he has undivided share in
the suit property. In my view if the defendant no.2 to 4 create third
party interest in the suit property in that event plaintiff would suffer
irreparable loss which cannot be compensated in terms of money. The
balance of convenience also lies in favour of the plaintiff. After
considering the aforesaid facts, I am of the view that plaintiff is entitled
to get the relief of temporary injunction as sought. Resultantly, I record
my affirmative findings to point no.1 to 3 and I am inclined to decide
point no.4 by the following order.
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ORDER ..5..
ORDER
Notice of Motion No. 481 of 2019 is allowed in terms of prayer
clause A.
Parties to bear their own costs.
(Anand P. Kanade)
Judge
City Civil Court, Gr.Mumbai
Date : 04.04.2024
Typed on : 04.04.2024
HHJ signed on : 04.04.2024
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ORDER ..6..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 04.04.2024, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
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
04.04.2024
JUDGMENT/ORDER signed by P.O.
on
04.04.2024
JUDGMENT/ORDER uploaded on 04.04.2024
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