Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment Suit No.250-2018
MHCC010015542018 Presented on : 19.11.2018
Registered on : 22-01-2018
Decided on : 27-02-2024
Duration : 5Yrs, 3Mts, 8 Days
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
EXHIBIT NO.38
S. C. SUIT NO.250 OF 2018
1. Shri Nilesh Yashwant Ambekar ]
Hindu Indian Inhabitant of Mumbai, ]
Aged about 26 years, Occ: Service, ]
R/a. Pancharatna Complex, Building ]
No.1, Flat No.C/210, Gala Nagar, ]
Achole Road, Nalasopara (E), ]
District-Thane-401 209. ]
2. Shri Yogesh Yashwant Ambekar, ]
Aged : 29 years, Occ: Service, ]
R/a. Pancharatna Complex,Building ]
No.1, Flat No.C/210, Gala Nagar, ]
Achole Road, Nalasopara (E), ]
District-Thane-401 209. ]
3. Shri Rajesh Yashwant Ambekar, ]
Aged : 24 years, Occ: Service, ]
R/a. Pancharatna Complex,Building ]
No.1, Flat No.C/210, Gala Nagar, ]
Achole Road, Nalasopara (E), ]
District-Thane-401 209. ]
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4. Savita Yashwant Ambekar, ]
Adult, Indian Inhabitant, ]
R/a. Pancharatna Complex,Building ]
No.1, Flat No.C/210, Gala Nagar, ]
Achole Road, Nalasopara (E), ]
District-Thane-401 209. ] … Plaintiffs.
Versus
1. Mr. Ashok Gangaram Ambekar, ]
Hindu, Indian Inhabitant of Mumbai, ]
Aged: about 47 years, Occ: Service, ]
R/a. 302, Civics Centre, Opposite ]
Sunshine Plaza, Mumbai Marathi Granth ]
Sangrahalaya Marg, Dadar (East), ]
Mumbai-400 014. ]
2. Mrs. Sumati Eknath Gardi, ]
Aged about 52 years, Occ: Housewife, ]
R/a. Waddai, Pody Velneshwar, Taluka ]
Guhagar, District-Ratnagiri-415 729. ]
3. Mrs. Sheetal Chandrakant Bachim, ]
Aged about 45 years, Occ: Housewife, ]
R/a. B-502, Shanti Deep Co-op. Hsg. Soc]
Ltd., Near Padma Nagar, Behind Khyati ]
Deep Building, Chiku Wadi, Borivali (W),]
Mumbai-400 092. ]
4. Mr. Pradeep Bhikaji Pashte, ]
of Mumbai, aged about 35 years, ]
Occ: Service, ]
R/a. Room No.98, Galli No.10, Anna ]
Chawl No.2, Nehru Nagar, Opposite ]
Mithibai College, V.M. Road, Vile Parle ]
(West), Mumbai-400 057. ]
5. Sandeep Bhikaji Pashte, ]
of Thane, Aged about 33 years, ]
Occ: Service, ]
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R/a. C/110, First Floor, Shivmati Co-op. ]
Hsg. Soc. Ltd., Mother Terresa Marg, ]
Bhayander (West), District-Thane-401101]
6. Mr. Mohan Bhikaji Pashte, ]
of Thane, Aged about 31 years, ]
Occ: Service, ]
R/a. C/110, First Floor, Shivmati Co-op. ]
Hsg. Soc. Ltd., Mother Terresa Marg, ]
Bhayander (West), District-Thane-401101]
7. Mr. Arun Gopal Ambekar, ] .. (Since deceased) deleted
Aged : 61 years, Occ: retired, ]
R/a. Pancharatna Complex,Building ]
No.1, Flat No.C/210, Gala Nagar, ]
Achole Road, Nalasopara (E), ]
District-Thane-401 209. ]
7a. Yojna Arun Ambekar, ]
Aged : 56 years, Occ: Housewife, ]
Indian Inhabitant,
R/a. Pancharatna Complex, Building ]
No.1, Flat No.C/210, Gala Nagar, ]
Achole Road, Nalasopara (E), ]
District-Thane-401 209. ]
7b. Shailesh Arun Ambekar, ]
Aged : 29 years, Occ: Service ]
Indian Inhabitant, ]
R/a. Pancharatna Complex, Building ]
No.1, Flat No.C/210, Gala Nagar, ]
Achole Road, Nalasopara (E), ]
District-Thane-401 209. ]
7c. Priyanka Arun Ambekar, ]
Aged : 21 years, Occ: Service ]
Indian Inhabitant, ]
R/a. Pancharatna Complex, Building ]
No.1, Flat No.C/210, Gala Nagar, ]
Achole Road, Nalasopara (E), ]
District-Thane-401 209. ]
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8. Smt. Laxmibai Bhagoji Gavrang, ]
Aged about 70 years, Occ: Housewife, ]
R/a. At Post Umarath, Ambekarwadi, ]
Taluka Guhagar, District-Ratnagiri-415728]
9. Smt. Sumitra Gopal Dingankar, ]
Aged about 54 years, Occ: Housewife, ]
R/a. At Post Chindrawale, Taluka ]
Guhagar, District-Ratnagiri-415 703. ]
10 Smt. Bhagirathi Sonu Ghade, ]
Aged about 59 years, Occ: Housewife, ]
R/a. At Post Umarath, Ghadewadi, ]
Taluka Guhagar, ]
District-Ratnagiri-415 728. ] ... Defendants.
Appearance :-
Ld. Adv. Tanvir Shaikh for plaintiffs.
Ld. Adv. G.M. Joshi for defendants.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 14/02/2024, 15/02/2024 and
27/02/2024.
J U D G M E N T
The plaintiffs have filed present suit for claiming relief inter
alia;
(a) To declare that the plaintiffs are entitled to 3.57% share for each
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one of them from and out of the Suit Flat No.302, Civic Centre,
Opposite Sunshine Plaza, Mumbai, Marathi Granth Sangrahalaya Marg,
Dadar (East), Mumbai-400 014;
(b) In alternative, to direct the defendant No.1 to sell out the Suit
Flat and the plaintiffs be given their respective shares.
(c) For mandatory injunction and for directing the defendant No.1
for partition the Suit Flat by metes and bound and allot 3.57% share to
each of the plaintiffs;
(d) For an order of injunction to restrain the defendant No.1 from
selling out, disposing off or creating any third party right and or parting
with the possession of the ‘Suit Flat’ except with the written consent of
the plaintiffs.
Brief facts of the case of the plaintiffs can be summarized as
under:-
2. The plaintiff Nos. 1 to 3 are brothers and the plaintiff No.4
is their mother. The defendant Nos. 1, 2 and 3 are cousins of plaintiff
Nos. 1 to 3. The defendant Nos. 4, 5 and 6 are children of paternal
aunt of plaintiff Nos. 1 to 3. The defendant No.7 is uncle of plaintiff
Nos. 1 to 3. The defendant No.8 is cousin sister of the plaintiff Nos. 1 to
3. The defendant No.9 and 10 are paternal aunt of plaintiff Nos.1 to 3.
3. It is contended that the grand-father of the plaintiff Nos. 1
to 3 namely Gopal Shiva Ambekar having two wives. Out of his first
wedlock, he begotten three children namely Gangaram, Dattaram and
Leela i.e. defendant No.8 and out of his second wedlock, he begotten
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five children namely Yashwant, Arun i.e defendant No.7, Pushpa Bharati
i.e defendant No.9 and Bhagirathi i.e. defendant No.10.
4. According to the plaintiff, grant-father of the plaintiff No.1
to 3 died in the year 1971. The defendant Nos. 1 to 3 are children of
Gangaram. Gangaram died in the year 1968. Dattaram died in the year
1979 as unmarried. The plaintiff Nos. 1 to 3 are children of Yashwant
and plaintiff No.4. The defendant Nos. 4 to 6 are the children of the
deceased daughter of Late Gopal namely Pushpa.
5. It is contended that the grand-father of plaintiff Nos. 1 to 3
Shri. Gopal was working with one M/s. Visanji Sons and Company and
he was allotted residential premises being Room No.3, Visanji Park,
Bhaithi Chawl, Naigaon Cross Road, Dadar, Mumbai-400 014 (now Flat
No.302, hereinafter referred as ‘the suit room’ and ‘Suit Flat’
respectively). It is also the further contention of the plaintiffs that Shri.
Gopal alongwith all other family members were residing in the said suit
room. Father of plaintiff Nos.1 to 3 died at Thane, in the year 2005. At
that time, he was residing in the flat at Nalasopara. The father of the
defendant No.1 viz: Gangaram continued to reside in the suit room and
plaintiffs are presently residing leaving the house at Dadar, only for the
sake of convenience and in view of exigency of his family. The
defendant No.1 and other family members of Ambekar family continued
to reside in the suit room.
6. According to the plaintiffs, in the year 2006, one developer
Shri. Ajgaokar from M/s, Finetone realtor’s Pvt. Ltd., came and
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represented to the occupants of the said Visanji Park, Baithi Chawl that
he is developing the existing chawl and after demolition, they will
construct a multi-storied building thereon. Thereafter, the developer
started developing the entire chawl known as Visanji Park and
constructed a new building in the place of the old chawl. It is also
contention of the plaintiffs, that at the relevant time, the defendant
No.1 was residing in the suit room. When the existing occupants of the
room were to be accommodated in the permanent alternate
accommodation in Newly constructed building, the defendant No.1
secretly approached the developer and misrepresented himself as he
alone is entitled from the Ambekar family for the permanent alternate
accommodation, in newly constructed building. The developer, by
relying on the misrepresentation of the defendant No.1 allotted ‘Suit
Flat’ in the new building Civil Centre to him.
7. It is also contended that plaintiffs and the defendants being
the descendant of Late Gopal Ambekar have equal right, title and
interest in the ‘Suit Flat’. Therefore, the plaintiffs approached to the
defendant No.1 and asked him about the allotment of the ‘Suit Flat’ to
him alone. Upon being asked, the defendant No.1 recognized the share
of the plaintiffs in the ‘Suit Flat’, in presence of the elder member of the
family who acted as mediator and promised that he would settle the
matter amicably and assured the plaintiffs that he will give them as well
as to the defendants No.2 to 10 their respective shares in the ‘Suit Flat’.
8. It is further contention of the plaintiffs that initially the
defendant No.1 was ready to give shares to the plaintiffs and the other
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defendants, but subsequently he refused to give them, their respective
shares in the ‘Suit Flat’. Therefore, the plaintiff constrained to file the
present suit.
9. In response to the suit summons, the defendant No.4 to 6,
7(a), 7(b), 7(c) and the defendant No. 8 to 10 have appeared and
admitted the claim of the plaintiffs. Whereas, despite of the service, the
defendant No.1 to 3, did not turn up, hence, suit proceeded ex-parte
against them.
10. Considering the pleadings and the documents filed on
record, following issues arise for my determination. I recorded my
findings with reasons stated below:-
Sr. No. Issues Findings
1. Whether the old suit Room No.3
(new Flat No. 302) is subjected to
partition?
No.
2. Whether the plaintiffs and the
defendant No.4 to 10 are entitled
for their share in the old suit Room
No.3 (new Flat No. 302)?
No.
3. What Order and Decree? Suit is dismissed
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11. To substantiate the claim, the plaintiffs have examined the
plaintiff No.4 (PW-1) as their witness by filing the affidavit in lieu of the
examination in chief (Ex.10) and relied on documents; viz.
Exhibit-13 : Original old Ration Card issued in the year
1980 by the Rationing Authority.
Exhibit-14 : Original new Ration Card issued in the year
2000 by the Rationing Authority,
Exhibit-15 : Original Bank Passbook of Bank of
Maharashtra of deceased Yashwant issued in
the year 1979,
Exhibit-16 : Original voters Identity Card of deceased
Yashwant,
Exhibit-17 : Original Identity Card issued by Maharashtra
State Bureau of Text Books Production and
Curriculum Research, Mumbai of deceased
Yashwant,
Exhibit-18 : Triplicate copy of Salary Slip of husband
Yashwant for March 1985 and February 1989
issued by Maharashtra State Bureau of Text
Books Production and Curriculum Research,
Mumbai,
Exhibit-19 : Original School Leaving Certificate dated
11.08.1974 issued by Lokmanya Night High
School, Dadar, Mumbai to deceased Yashwant,
Exhibit-20 : Original Income Tax Returns for the financial
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year 2002-03 and 2003-04 of deceased
Yashwant,
Exhibit-21 : Original Income Tax Returns for the financial
year 2004-05 of deceased Yashwant,
Exhibit-22 : Original Passbook of Bank of India issued in
the year 1980 to Arun Gopal Ambekar,
Exhibit-23 : Original Passbook of Bank of India issued in
the year 1986 to Arun Gopal Ambekar,
Exhibit-24 : Original Passbook of Canara Bank issued in
the year 1992 to Arun Gopal Ambekar,
Exhibit-25 : Original Passbook of Bank of India issued in
the year 1975 to Arun Gopal Ambekar,
Exhibit-26 : Original Voters Election Card issued in the year
1995 to Arun Gopal Ambekar,
Exhibit-27 : Original Identity Card issued by the Wallace
Flour Mills Company Ltd., in the year 1981 to
Arun Gopal Ambekar,
Exhibit-28 : Original letter dated 10.01.1985 issued by The
Wallace Flour Mills Company Ltd., in the year
1981 to Arun Gopal Ambekar,
Exhibit-29 : Original ESIC Identity Card issued to Arun
Gopal Ambekar,
Exhibit-30 : Original Employees State Insurance
Corporation letter dated 07.08.1984 issued to
Arun Gopal Ambekar,
Exhibit-31 : Original Death Certificate dated 13.12.1985 of
Gangaram Gopal Ambekar,
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Exhibit-32 : Original Death Certificate dated 18.11.2008 of
Gangaram Gopal Ambekar and
Exhibit-33 : Original Power of Attorney dated 31.03.2018.
12. The defendants No. 4 to 10 have admitted all the aforesaid
documents by filing their say (Exh.12). They have supported the claim
of the plaintiffs. Though the defendant No.4 to 10 have admitted the
claim of the plaintiffs, to determine the issue whether ‘the Suit
Room/Suit Flat’ can be partitioned, I have to scrutinize the pleadings,
documents and legal aspects in respect of the suit property.
R E A S O N S
As to the Issue Nos. 1 and 2 :-
13. It is the case of the plaintiff that ‘Suit Property’ is of their
grandfather and they have equal right and interest in the ‘Suit Property’.
The plaintiff No.4 (PW-1) deposed in consonance with the pleadings of
the plaintiffs. As the claim of the plaintiffs is admitted by the defendants
No.4 to 10, so, the evidence of the plaintiff No.4 (PW-1) remained
uncontroverted. Now the question arises, if the claim and pleadings of
the plaintiffs are admitted by some of the defendants, whether said
pleadings can be considered as proved. It is settled principle of law that
facts admitted need not be proved. Now the most significant aspect
which requires to consider here whether mere admission of facts is
sufficient to prove the legal rights of the parties, in the subject matter. It
is well settled that the plaintiff has to prove his case on his own and he
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cannot take advantage of the weak defence or no defence. Therefore, in
the present case, though the claim and pleading of the plaintiffs are
admitted by the defendant No.4 to 10, plaintiffs have to establish their
legal right by proving their case independently.
14. Now turning to the oral and documentary evidence filed by
the plaintiffs, it appears from the documents issued by the Income Tax
Department (Exhibit. 20 and 21) that the deceased Ganpat Ambekar
was residing in the suit room in the year 2003-2004. As per the
pleadings of the plaintiffs, at the time of death of Yashwant Ambekar
the plaintiffs and deceased Yashwant Ambekar were not residing in the
‘Suit Property’. According to the plaintiffs, Yashwant Ambekar died in
Thane on 27/11/2005 in the flat acquired by them at Nalasopara. The
pleadings of the plaintiffs nowhere indicate that after the death of
Yashwant Ambekar plaintiffs No.1 to 4 continued to stay in the suit
room alongwith the other defendants. But the evidence of P.W.1
indicates that after death of Yashwant, they were residing in the ‘Suit
property’. This version of the witness is without pleadings and the
evidence without pleadings cannot be considered.
15. It is not disputed that the defendant No.1 was residing in
the suit room till the year 2006. In the present matter, it is required to
see how and in which capacity Late Shri. Gopal Ambekar received the
suit room in his possession. According to the plaintiffs, Late Shri. Gopal
Ambekar was working with M/s. Visanji & Sons Company and he was
allotted a residential premises i.e. suit room. Except this, nothing is
pleading about the right of deceased Gopal in the ‘Suit Property’. It is
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pertinent to note that deceased Late Shri. Gopal Ambekar was residing
in the suit room, not as a tenant or owner, but he was residing in the
residential premises, which was allotted by his employer. Nothing is on
record to show that Late Gopal had ever paid any licensee fees or rent
in respect of the ‘Suit Property’ to the original owner M/s Visanji and
Sons Company. It means that the deceased Gopal Ambekar was residing
in the ‘Suit property’ as a gratuitous licensee.
16. The ‘licence’ can be a unilateral grant and unsupported by
any consideration. In the case of State of Punjab Vs. Brig. Sukhijt Singh
(1993)3 SCC 459, the Hon’ble Supreme Court observed that payment of
licence fees is not an essential attribute for the subsistence of the
licence.
17. In the case of Ramdas Dwarkadas Mehara Vs. Indravati
Dwarkadas Mehra, 2001(3) ALL MR 668 the Hon’ble Bombay High
Court has observed that
“The concept of ‘licence’ is contra-distinguishable from the
concepts of easement and interest in the property. Licence is purely a
personal right created and terminable at will, which may or may not be
supported by material consideration. That is the reason why Section 56
of the Indian Easements Act, 1882 provides that a licence is not
transferable.”
18. Being gratuitous licensee, Late Gopal Ambekar was entitled
to reside in the suit room till he worked with M/s. Visanji and Sons
Company or till the revocation of the licence. It is nowhere brought on
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record that during the lifetime of Shri. Gopal Ambekar, M/s. Visanji and
Sons Company has given any legal right in respect of the ‘Suit Property’
to deceased Gopal Ambekar. The licence is the purely personal right and
the same is not transferable. It is cardinal principle of law that a person
holding premises gratuitously would not acquire any right or interest in
the said property and even long possession in that capacity would be of
no legal consequences. Therefore, till the death of Gopal Ambekar being
gratuitous licensee enjoyed the possession of ‘Suit Property’ but he had
not acquired any right or interest therein. When deceased Gopal
Ambekar had not acquired any right and interest in the ‘Suit Property’,
question about rights of the legal heirs of deceased Gopal would not
arise at all.
19. As discussed supra, the plaintiff failed to prove that
deceased Gopal Ambekar acquired the legal right and interest in the
‘Suit Property’ and thus the ‘Suit Property’ is subjected to partition. The
plaintiffs have also failed to establish that after the demise of Gopal
Ambekar, his legal heirs are entitled for claiming their respective shares
in the ‘Suit Property’. Hence, in my view, the plaintiffs have no right
and interest in the ‘Suit Property’ and the same cannot be partitioned.
Therefore, I record my findings to the Issue Nos. 1 and 2 in the
negative.
As to the Issue No.3 :-
20. In view of the negative findings recorded to the issue Nos.
1 and 2, the suit needs to be dismissed. Hence, I record my findings to
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the Issue No.3 accordingly and proceed to pass following order:-
O R D E R
1. Suit No.250 of 2018 is dismissed.
2. No order as to costs.
3. Decree be drawn up accordingly.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Dated : 27/02/2024 C.R. No.03
Dictated on : 14/02/2024, 15/02/2024 & 27/02/2024.
Typed on : 28/02/2024
Signed on : 29/02/2024
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“Certified to be true and correct copy of the original signed order”.
02/03/2024
at about 4.50 p.m. : (Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Bombay
Name of the Hon'ble Judge : Smt. Anita B. Sharma
Judge, City Civil Court &
Addl. Sessions Judge Gr. Bombay
Court Room No.03.
Date of pronouncement of
Order
: 27/02/2024
Order signed by Hon'ble Judge
on
: 29/02/2024
Order uploaded on : 02/03/2024
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