Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010116372019 Received on : 13/11/2019
Registered on : 27/11/2019
Decided on : 08/09/2026
Duration : 06 Y, 09 M, 25 D
Exh.6
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO.3132 OF 2019
Waheeda w/o Rizwan Shaikh
of Mumbai, Indian Inhabitant,
presently residing at Flar No.408,
C wing, Deepti Mukti Shakti Co-op.
Hsg. Soc. Ltd., Kalyan Complex, Yari Road,
Versova, Andheri (W), Mumbai 400 061. … Plaintiff
V/s
1. Rukayya Mohammed Amin Kazi,
of Mumbai, Indian Inhabitant,
Residing at Flat No.301, 3rd floor,
‘Cornelian’, 104, August Kranti Marg,
Mumbai 400 036.
2. Mohanna Zariwala alias Mohanna Amin Kazi,
of Mumbai, Indian Inhabitant,
Residing at Marathon Building
near Pheonix Mall, Lower Parel,
Mumbai 400 013.
3. Cornerline Building Co-Operative Housing
Society Ltd. Through its Chairman / Secretary
a Co-operative Society,
Incorporated under the Maharashtra
Co-operative Societies Act, 1960, having
its registered office at August Kranti
Marg, Kemps Corner, Mumbai 400 036. … Defendants
Appearances :
Advocate Nushrat Shah for plaintiff present.
Advocate Rhea Rajesh i/b Adv. Sanjukta Dey a/w Adv. Shalini Dey for
defendant no. 1 and 2
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Judgment (2) S.C. Suit No. 3132/2019
CORAM : D. R. DESHPANDE
JUDGE,
(C.R.NO.02)
DATE : 8th September, 2026
JUDGMENT
1. This is suit for permanent injunction restraining defendants
from creating third party interest in the suit property without following
due course of law.
2. Case of plaintiff: Defendant No.1 is mother of plaintiff,
defendant No.2 is the step sister of plaintiff through second husband of
defendant No.1 and defendant No.3 is a Co-operative Housing Society.
Defendant No.1 has registered the Sale Agreement and Share Certificate
standing in her name and she is lawful owner of the suit flat. Defendant
No.2 is trying to have Gift Deed from defendant No.1 forcibly.
Defendant No.1 had also made statement that plaintiff would be given
equal share at par with defendant No.2 as the elder daughter. However,
defendant No.2 is blackmailing defendant No.1 to execute Gift Deed of
the entire property in her favour and they are also in haste to sell out
the property without permission of plaintiff. Hence, the suit.
3. Preliminary objection : On 14.08.2026, upon perusal of the
record at the hearing the parties Notice of Motion 2086/2021, the
preliminary objection came to be framed and parties have been heard
on the maintainability of the suit. Following are the preliminary
objections alongwith findings thereon for the reasons ensuing :
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Judgment (3) S.C. Suit No. 3132/2019
Sr.
No.
Points Findings
1. Whether plaint discloses cause of action
entitling plaintiff to the reliefs prayed for ?
No
2. Whether suit for simplicitor injunction
restraining alienation of the suit property in
the name of defendant is maintainable ?
No
3, What order ? Plaint is rejected
vide Order VII,
Rule 11 (a) and (d)
of the Code of Civil
Procedure, 1908
As per final order
REASONS
4. Points No. 1 and 2: At the outset, plaintiff is claiming
defendant No.1 to be the lawful owner of the suit property by virtue of
registered Deed of transfer and Share Certificate standing in her name.
Although, she is claiming that it was the father of plaintiff i.e. previous
husband of defendant No.1 who had purchased the said flat in the
name of defendant No.1, she has not been claiming the same to be
property of her deceased father left behind by him and it is even not on
record whether plaintiff’s father is alive or demised.
5. Under Muslim law no descendant can have vested right to
property of a person unless he dies either with Vasiyat or without
Vasiyat. There is no scope for birth right in the property of father or
mother in the life time of each. The property is indisputably belonging
to either defendant No.1, or at the most, father of plaintiff. Plaintiff has
not averred the demise of her father so that, even at the highest stretch
of imagination that the property is belonging to her father, plaintiff has
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Judgment (4) S.C. Suit No. 3132/2019
no right, title or interest in the suit property belonging to her father in
his life time. Similar can be said regarding property of defendant No.1.
Plaint, therefore, does not disclose cause of action i.e. existence of right
to the property in the life time of either defendant No.1 or the father of
plaintiff.
6. Furthermore, the suit for simplicitor injunction without the
prayer for
“further relief” of partition or
“equally efficacious remedy” of
partition within the meaning, respectively, of proviso to Section 34 and
Section 41-h of the Specific Relief Act, 1963, is barred as neither
simplicitor declaration without the “further relief” nor simplicitor
injunction without the
“equally efficacious remedy”, can ever be
granted.
7. Thus, plaint is liable to be rejected Accordingly, findings to
point No.1 and 2 are recorded in the negative.
8. Point No.3: In view of findings to point No.1 and 2, plaint
is liable to be rejected
vide Order VII, Rule 11(a) and (d) of the Code of
Civil Procedure, 1908.
8. In the circumstances, considering the relationship amongst
the parties, there has to be an exception to the general rule of costs
“Costs shall follow the event”. In the result, I pass the following order :
O R D E R
1. Plaint is rejected
vide Order VII, Rule 11 (a) and (d) of the Code
of Civil Procedure, 1908.
2. Parties to bear their own costs.
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Judgment (5) S.C. Suit No. 3132/2019
3. Notice of Motion No.521/2020, Notice of Motion No. 2086/2021,
Chamber Summons No. 1772/2023 stand disposed of alongwith
disposal of the suit.
(Judgment dictated and pronounced in Open Court.)
(D.R. Deshpande)
Judge,
City Civil Court,
Date: 08.09.2026 Gr. Bombay.
Dictated on : 08.09.2026
Transcribed on : 09.09.2026
Checked & Signed on : 10.09.2026
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Judgment (6) S.C. Suit No. 3132/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10.09.2026 At 5.00 P.M. J.S.CHAVAN
UPLOAD DATE AND TIME NAME OF THE STENOGRAPHER
Name of the Judge (With Court
Room Number)
HHJ D.R. DESHPANDE
JUDGE, CITY CIVIL COURT
(C.R.NO.02)
Date of pronouncement of
Judgment/ Order
08.09.2026
Judgment/Order signed by P.O.
on
10.09.2026
Judgment/Order uploaded on 10.09.2026
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