Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: 1 Exp. Jud in Suit 698 of 2019
9
MHCC010012272019
Presented on : 30.01.2019
Registered on : 12.03.2019
Decided on : 29.11.2023
Duration : 04-Y.09-M.30-D
IN THE CITY CIVIL COURT OF MUMBAI
S.C. SUIT NO. 698 of 2019
Exh. - 14
Hemnagi Ramesh Roge
Aged about 26 years- Occu: Services
Residing at B-13, Ground floor,
Laxmi Cottage, Dr. Ambedkar Road,
Opp. K.E.M. Hospital, Parel,
Mumbai – 400012 ... Plaintiff
Versus
Hira Dayanand Mulki
Aged not known, Occupation- Not Known
Having address at Hut No. 288,
Vijay Nagar Zopadpatti Part-1,
R.C. Marg, Chembur,
Mumbai-400074 .… Defendant
CORAM: HIS HONOUR JUDGE
SHRI. VIRENDRA D. KEDAR
(C.R. NO.1)
DATE: 29th DAY OF NOVEMBER, 2023
-: Appearances: -
The learned Adv. K. H. Chaturvedi for the plaintiff.
None for the defendant.
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JUDGMENT
(Delivered on this 29th day of November, 2023)
The plaintiff has filed the present suit for claiming reliefs
inter-alia;
a) To declare that the defendant cannot stay in the suit premises;
b) To direct the defendant to remove himself from the suit premises;
c) By a decree of permanent injunction, defendant be restrained
from occupying the suit premises.
2. Briefly stated, the facts of the case are as under: -
The plaintiff is lawful owner of the Hut no. 288, Vijay
Nagar Hutments, Part-I, Ramkrishna Chemburkar Marg, Trombay,
Chembur Mumbai; admeasuring area 10 x 15 = 150 sq.fts., (herein
after referred to as ‘Suit Premises’).
3. It is further contention of the plaintiff that the suit premises
was purchased by her maternal uncle Mr. Shivram Tukaram Paradkar
from Mr. Ravi Dattaram Chavan in the year 1995. Thereafter, Mr.
Shivram Paradkar had given said premises to the plaintiff’s parents for
taking its care as it is nearby to the premises of plaintiff’s parents. As
the plaintiff’s maternal uncle and her parents were unable to take care
of the suit premises, her maternal uncle Mr. Shivram sold suit premises
to the plaintiff in the month of August, 2015 by executing a Power of
Attorney and affidavit cum sale deed.
4. It is further submitted that the defendant is unlawfully
occupying the suit premises. The defendant has no right, title and
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interest in the suit premises. The defendant had approached to the
plaintiff’s parents and requested them to provide suit premises for
staying purpose. On his oral request, the plaintiff’s parents gave suit
premises to the defendant for stay purpose only. It is submitted that,
the photo-pass is in the name of plaintiff’s father namely Ramesh
Ganpat Roge issued by the Government of Maharashtra on 18/10/2000.
5. It is further submitted that the plaintiff being owner of the
suit premises is paying taxes, electricity bills etc. The plaintiff got
knowledge that the defendant on the basis of forged and fabricated
documents obtained electricity connection and bill in his favour.
Therefore, the plaintiff being owner of the suit premises is entitled for
the reliefs claimed. Hence, the suit may kindly be decreed.
6. In spite of service, the defendant failed to appear hence,
matter proceeded ex-parte against the defendant
vide an order dated
26/04/2023.
7. In support of her claim, the plaintiff has examined herself
as (PW1) below Exh.7. She deposed as per the averments in the plaint
and hence, I do not want to reproduce the same to avoid the repetition.
The plaintiff relied on the documents such as original Power of Attorney
Exh.9, Affidavit cum sale deed Exh.10 and original photo-pass Exh. 11.
The plaintiff filed evidence closing pursis Exh.12.
8. Heard the learned advocate for the plaintiff and perused
the record. He also filed written notes of argument at Exh.13.
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9. Following points arise for my determination, to which, I
have recorded my findings with reasons as under: -
Sr.
No
Points Determination
1. Whether the plaintiff prove that she is the
owner of the suit property?
No
2. Whether the plaintiff is entitled for the
declaration as claimed?
No
3. Whether the plaintiff is entitled for the
possession of suit premises?
No
4. Whether the plaintiff is entitled for the relief
of permanent injunction as claimed?
No
5. What order and decree As per final order.
REASONS
As to Points no.1 to 4: -
10 All these points are arising out of the same set of evidence,
hence taken for discussion together. The learned advocate for the
plaintiff argued that, the plaintiff by examining herself and by adducing
documentary evidence, duly proved her ownership over the suit
premises. The defendant has illegally occupied the suit premises. The
defendant has no right, title and interest to remain in the suit premises.
Hence, the suit may kindly be decreed.
11. It is well settled that the plaintiff has to prove his/her own
case and would have to stand on his/her own legs. Merely because the
defendant remained ex-parte and not filed any written statement, the
claim of the plaintiff could not be decreed straightway.
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12. The plaintiff is claiming ownership of the suit premises. To
substantiate the same, she has filed original Power of Attorney and
affidavit cum sale deed. Upon perusal of affidavit cum sale deed
Exh.10, it seen that, it is executed on Rs.100/- stamp and it is a
notarized document. Therefore, it easily gathered that it is an
unregistered document and executed on insufficient stamps. Thus, on
the basis of such documents no title can be devolve upon the plaintiff.
The Power of Attorney by no stretch of imagination confer any title in
favour of any person. The photo-pass was issued in favour of the father
of the plaintiff wherein the area of the hut is shown as 323 sq.fts.
However, in the present suit the plaintiff is claiming to be the owner of
150 sq.fts. There is no reference of the suit premises in the photo pass.
Even otherwise the plaintiff allegedly claiming that it was purchased
from her maternal uncle. The plaintiff nowhere asserted that as to when
the defendant had allegedly occupied the suit premises. Nothing on
record to show that at any point of time the plaintiff had issued any
notice or requested to defendant to vacate the suit premises as she
being owner of the suit premises entitled for its possession. Therefore,
the plaintiff totally failed to prove her ownership over the suit premises,
hence the question of plaintiff’s entitlement for the relief claimed does
not arises. Thus, my answer to point no.1 to 4 is in the negative.
As to point no.5: -
13. In view of the above discussion and considering the oral
and documentary evidence, the plaintiff is not entitled for the reliefs
claimed. Hence, I pass the following order: -
ORDER
Suit no. 698 of 2019 stands dismissed.
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Decree be drawn up accordingly.
(Virendra D. Kedar)
Judge,
Date: 29/11/2023. City Civil Court, Greater Mumbai.
(C R No.1)
Dictated on :29/11/2023
Transcribed on :30/11/2023
Signed on :01/12/2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 01.12.2023 NAME OF STENOGRAPHER(G.I.)
Mrs. V.V.Mhatre
TIME:
Name of the Judge (With Court
room no.)
Shri Virendra D. Kedar
(Court Room No.01)
Date of Pronouncement of
JUDGEMENT/ORDER
29.11.2023
JUDGMENT/ORDER signed by
P.O. on
30.11.2023
JUDGEMENT/ORDER uploaded on 01.12.2023
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