Final Order 1

Order Details: Copy of Judgment
Pdf Text: MHCC010019002018 Received on : 05-02-2018
Registered on : 01-10-2019
Decided on : 18-12-2025
Duration : 7 Y, 10 M, 13 D
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY.
SUIT NO.2572 OF 2019
Exh.25/A
Inderlok Infra Agro Pvt. Ltd.
A Company, Incorporated under The
Provisions of Indian Companies Act, 1956.
having its office at : Block No.3,
Sohni Mansion, Ground Floor,
August Kranti Marg, Mumbai-400 026. … PLAINTIFFS
Versus
1. Smitesh Subhash Tankkar
2. Vinayak Subhash Tankkar
Legal heirs of deceased
Subhash Arjun Tankkar &
Occupants of open space of
admeasuring 11' x 21' Sq. Ft.
Shroff Market Main Building,
Gokhale Road, (South) Dadar
Mumbai – 400 025. … DEFENDANTS
APPEARANCES :
Ms. Neha Pandey, Advocate for plaintiffs.
None for defendants.
CORAM : AMIT ANANT LAULKAR,
JUDGE
COURT ROOM NO.02
DATED : 18th DECEMBER, 2025
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(2)
JUDGMENT
1. A suit imploring for declaration and recovery of possession
followed by suitable directions against the defendants.
Subject matter of the Lis :-
2. Open passage admeasuring 11 x 21' Sq. Ft. at Shroff
Market, Main building, Gokhale Road (South), Dadar (West), Mumbai –
400025. (For brevity referred as ‘the suit passage’).
3. The plaintiff moved this court with instant suit claiming
declaration that the Defendants are trespassers in respect of the suit
property with direction to the defendants to handover to the Plaintiff
vacant and peaceful possession of suit passage and to pay mesne profit
to the Plaintiff for illegal occupation of said passage OR in alternative,
initiation of inquiry for quantifying the amount of mesne profit to be
paid to the Plaintiff by the Defendants under Order XX Rule XII of Code
of Civil Procedure 1908.
Bonsai Facts are as follows :
4. The Plaintiff is a Company incorporated under the
provisions of Companies Act and carrying on business of Builders and
Developers of the immovable properties in the Mumbai City. Initially
they were running their business in the name and style of Inderlok
Hotels Pvt. Ltd. And now, said name changed to the current name with
effect from 25th January 2010. The Plaintiff company is the owner of
the larger property being F.P.No.578/579. The suit passage is a part of
the larger property. The Plaintiff is carrying on development work of
the larger property in phase wise manner. The Defendants are the rank
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Judgment (3) Suit No.2572/2019
trespassers who have committed encroachment in the property
belonging to the Plaintiffs and they are in illegal, possession thereof.
5.
Per plaintiff, one Tikamdas Mohandas Chabbria and Hari P.
Kandhari of Vijaylaxmi Builders acquired the ownership rights to the
property known as Shroff Market bearing F. P. No.578 and 579 situated
at Gokhale Road (South), Dadar (West), Mumbai-400025 through a
Deed of Conveyance dated 29th April 1982, duly registered with the
Sub-Registrar of Assurances at No.117 of 1982. After the said Deed of
Conveyance and in pursuance to IOD bearing No.AB 3675/A dated 17th
April, 1982 a commencement certificate dated 30th April 1982 was
granted in for the development of entire property. Said Tikamdas
Chabbria and Hari Kandhari approached the Plaintiff with intention to
sale their entire right, title and interest in respect of said entire property
in favour of Plaintiff. Accordingly, as per the said understanding, terms
and conditions were finalized by and between them and the Agreement
for sale dated 16th August 1984 was executed by Trikandas Chabrria
and Hari Kandari as the partners of Vijaylaxmi Builders, referred to as
the Vendors in favour of the Plaintiff referred to as the
Purchasers/developers on the terms and conditions and for the
consideration as more particularly mentioned in the Agreement for sale
dated 16th August 1984 which is duly registered in the office of Sub-
Registrar of Assurances, bearing Serial No.2038 of 1984 at Bombay on
28th October 1985 in respect of the said entire property.
Simultaneously, upon the execution of said Agreement for sale,
Trikamdas Chabbria and Hari P.Kandari on the basis of the authority
given to them had signed and executed an irrevocable General Power of
Attorney dated 21st August 1984 in favour of Directors of the Plaintiff
thereby authorizing them to attend to the various matters acts and
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(4)
deeds relating to the development of entire property. Upon execution of
Agreement for sale and irrevocable General Power of Attorney,
Trikandas Chabbria and Hari Kandari, put the Plaintiff in occupation
and possession of entire property and handed over the copy of
sanctioned plans, IOD and commencement certificate issued by the
BMC, for carrying out the Development of entire property. Thereafter
Plaintiff got the said plans amended from time to time and necessary
modified plans were issued by the BMC from time to time, for carrying
out the Development of the said entire property. As part of the ongoing
development of said entire property, the Plaintiff had settled the claims
of various tenants and occupants from time to time.
6. It is urged that during night hours on 10th December 1992
when the communal riots were going on in the city of Mumbai during
night hours the miscreants set fire to the Main Shroff Market building
being the building wherein the suit passage is situated. Due to outbreak
of fire, the major portion of Main Shroff Market building was gutted
down. During that time due to the said mishap anyone from the office
of Plaintiff and its security guards who were posted on the suit property
were not permitted to enter the Main Shroff Market building and were
cleared out from the surrounding area. For security reasons, the fire
Brigade did not permit the plaintiff, its representatives, security guards
to enter the Main Shroff Market building. Amid such time of chaos,
taking undue advantage of the situation, one Mr.Subash Arjun Tankkar
took forcible possession of the common passage which was being used
by tenants by surreptitiously placing some old defunct junk printing
machine, the main which is situated near various open galas within
main Shroff Market building. After claiming forcible possession and
encroachment on the suit passages, said Subhash Tankkar, filed false
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Judgment (5) Suit No.2572/2019
complaint with police and as a result of his misrepresentation, he
managed to obtain a Panchanama from the police/fire brigade.
7. It is further urged by the plaintiff that said Mr. Subhash
Arjun Tankkar had filed a false and frivolous declaratory suit relating to
suit passage illegally claiming tenancy rights in the Court of Small
Causes Court bearing RAD Suit No.2376 of 1992. After filing of said
declaratory suit, Subhash Tankkar by making false and frivolous claims
of tenancy made an application for grant of ex-party ad-interim
injunction against the Plaintiff relating to suit passage before the Small
Causes Court and thereby succeeded in getting ex-party ad-interim
injunction against Plaintiff. It was falsely contended and illegally
claimed by said Subhash Tankkar that he is in possession of a suit
passage for last seven years whereas actual size of common passage
which is illegally encroached by him and now by Defendants is
admeasuring about 172.92 Sq.Ft. It is falsely contended by the Subhash
Tankkar that his father was doing the business in the suit passage since
1960 as a tenant of suit passage. It was also falsely contended that a
rent receipt issued in favour of his father by then landlord of suit
premises. It is falsely contended that on or about 10th December, 1992
due to major communal riot broke out in the City of Bombay by taking
advantage of the burning situation in the City of Bombay the Plaintiff
with the help of hirelings allegedly set fire to the entire structure and
various shops held by different tenants in the said Main Shroff Market
property and that, the structure allegedly occupied by father of
Subhash Tankkar was destroyed by the Plaintiff not by fir,e but was set
fire to with a malafide intention of removing him from the suit passage.
The Plaintiff had filed a written statement in the said suit stating therein
that the said Subhash Tankkar and/or his father had never been in
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(6)
possession of the suit passage and denied all his contentions. The
Plaintiff have specifically stated in the said written statement that father
of Subhash Tankar was a tenant of shop No.9 building No.2, in Shroff
Market property and not in a Shroff Market Main Building.
8. On the basis of the written statement filed by the Plaintiff,
the Small Causes Court had framed issues, the evidences of the parties
were led, the documents were produced by both the parties, the
Defendant therein Mr.Subash Tankkar was cross examined and after
perusal of the said documents and evidence on record upon hearing the
Advocate for the parties, the Small Causes Court by an order/judgment
dated 1/2d April 1997 dismissed the suit filed by Subhash Tankkar.
Thereafter, Subhash Tankkar had preferred an appeal before the Small
Causes Court bearing Appeal No.330 of 1997, which came to be
dismissed by judgment dated 9th August 2004. Eventually, the plaintiff
vide his Advocate’s letter dated 3rd December 2004 called upon
Subhash Tankkar to handover possession of suit passage to Plaintiff, but
Subhash Tankkar neither handed over the possession nor did even reply
to said letter dated 3rd December 2004. Meanwhile, Subhash Tankkar
filed Writ Petition bearing No.9148 of 2004 before the Hon’ble High
Court challenging said judgment dated 9th August 2004. The Hon’ble
High Court vide order dated 28th June, 2007 was pleased to direct
plaintiff to file CRA and no stay was granted. However meanwhile said
Subhash Tankkar, breathed his last. After the death of said Subash
Tankkar; Defendants herein, the alleged legal heirs of Subhash Tankkar
and the persons inducted by them are illegally using and occupying the
vacant suit passage and causing hindrances and obstacles in the way of
Plaintiff’s Day to day operation. Due to said illegal and unlawful
trespassing and encroachment on the part of Defendants in the suit
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Judgment (7) Suit No.2572/2019
passage; plaintiff is not in a position to carry out the development of
rest of the property. BMC is not permitting the Plaintiff to utilize the FSI
in respect of any portion of said entire property being occupied by
tenants/occupants and/or trespassers/ encroachers. On account of
illegal trespassing of suit passage by the Defendants, Plaintiff is not
permitted by MCGM to use FSI of said 11' x 21' Sq.Ft. of land while
carrying out the development of sald entire property. Dhe Defendants
are Illegally storing the old defunct junk machinery in the suit passage
and thereby causing nuisance as well as inconvenience to other
tenants/occupants and also to the new flat purchasers to whom the
Plaintiff had sold flats/shops/garages in the Inder Tower Building and
Inder Tower annexe buildings. The Plaintiff states that more ever, the
said activity is hazardous to the lives of tenants/occupants/flat
purchasers. Finally, the plaintiff left with no option to knock the doors
of this court. That way the plaintiffs before this court with instant suit
for declaration and recovery of possession. At the end, the plaintiffs
crave for desired reliefs and oblige.
9. Post receipt of the writ of summons, Defendants caused
appearance before this court but filed to file written statement, hence
no WS order was passed and the suit proceeded further without WS of
the defendant.
10. To fortify his claim, the plaintiff examined Rajeev Indrajit
Sharma below Exh.02. He placed reliance upon following documents.
Sr. No. Exhibit Number Description of the documents
01 Exh.4 Notarized certificate of registration
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(8)
02 Exh.5 Plan
03 Exh.6 Registered Conveyance Deed
04 Exh.7 Agreement for sale dated 16.08.1984
05 Exh.8 Power of Attorney
06 Exh.9 Schedule of property
07 Exh.10 Schedule giving actual description of the
encroached portion
08 Exh.11 Copy of Plaint and written statement in RAD
Suit no. 2376 of 1992
09 Exh.12 Notes of evidence
10 Exh.13 Certified copy of judgment dt. 01/02.04.1997
11 Exh.14 Judgment in appeal no. 330 of 1997
12 Exh.15 Letter dated 03.12.2004
13 Exh.16 Copy of the order dated 28.06.2007
14 Exh.18 colly Photographs at Page Nos.180 to 182
15 Exh.19 Receipt at Page No.179
16 Exh.20 colly Photographs at Page Nos.184 to 186
17 Exh.21 Receipt at Page No.183
11. By moving pursis below Exh.22, the plaintiff winded up his
evidence.
12. Defendants were conferred with numerous opportunities;
however, they did not opt to led any evidence.
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Judgment (9) Suit No.2572/2019
13. In view of rival submission following issues arose for
consideration, my findings thereon are as follows:
Sr. No. ISSUES FINDINGS
1. Whether the Plaintiff is entitled for reliefs
claimed?
Yes
2. What Order and Decree ? Suit is Decreed.
REASONS
As To All Points :-
14. All above points are inter linked and inter connected with
each other, hence they are taken up together for deliberation.
15. As per settled legal preposition, one who asserts anything
has duty/ burden to prove it before the Court. Likewise in instant suit
the plaintiff is precisely under legal obligation to prove his version on
the touchstone of probabilities.
16. The A/R of the plaintiff testified in the line of his pleadings.
His evidence affidavit is noting but replica of the plaint. According to
the plaintiff, initially they were running their business in the name and
style of Inderlok Hotels Pvt. Ltd. And now, said name changed to the
current name with effect from 25th January 2010. The Plaintiff company
is the owner of the larger property being F.P.No.578/579. The suit
passage is a part of the larger property. The Plaintiff is carrying on
development work of the larger property in phase wise manner. The
Defendants are the rank trespassers who have committed encroachment
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(10)
in the property belonging to the Plaintiffs and they are in illegal,
possession thereof. The plaintiff relied upon documents placed on
record.
17. As such, the plaintiff seems to be the owner of the larger
property and the suit passage is part of the said property which is
admittedly in the possession of the defendants. Record reveals that Post
demise of Subhash Tankkar the defendants being legal heirs are in
possession of the said passage. During the life time of Subhash he had
filed a suit relating to suit passage claiming tenancy rights in the Court
of Small Causes Court bearing RAD Suit No.2376 of 1992. It is
contended by the Subhash Tankkar that his father was doing the
business in the suit passage since 1960 as a tenant of suit passage. On
the basis of the written statement filed by the Plaintiff, after perusal of
the said documents on record upon hearing the Advocate for the
parties, the Small Causes Court by an order/judgment dated 1/2d April
1997 dismissed the suit filed by Subhash Tankkar. Thereafter, Subhash
Tankkar had preferred an appeal before the Small Causes Court bearing
Appeal No.330 of 1997, which came to be dismissed by judgment dated
9th August 2004. Eventually, the plaintiff vide his Advocate’s letter dated
3rd December 2004 called upon Subhash Tankkar to handover
possession of suit passage to Plaintiff, but Subhash Tankkar neither
handed over the possession nor did even reply to said letter dated 3rd
December 2004. Meanwhile, it seems Subhash Tankkar filed Writ
Petition bearing No.9148 of 2004 before the Hon’ble High Court
challenging said judgment dated 9th August 2004. The Hon’ble High
Court vide order dated 28th June, 2007 was pleased to direct plaintiff to
file CRA and no stay was granted. However meanwhile said Subhash
Tankkar, breathed his last. After the death of said Subash Tankkar;
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Judgment (11) Suit No.2572/2019
Defendants herein, the alleged legal heirs of Subhash Tankkar inducted
by them are using and occupying the vacant suit passage.
18. Apparently, material placed on record nowhere reveals that
the defendants are occupying the suit passage referring to any right,
title and interest. De facto, the plaintiff seems to be the owner of the
said property and defendants have no right or title in continuing the use
and occupation of the suit passage. Plaintiffs evidence remains
uncontroverted. There is no positive evidence on record thereby
showing legal rights of the defendants to continue in the suit passage.
The evidence placed by the plaintiff is clinching and does inspire
confidence in square manner. Ultimately, on oath statement of the
plaintiff with its documents remained unchallenged.
19. For want of any right, title and interest of the defendants it
can conclusively inferred that the defendants are using and occupying
the suit passage unlawfully and illegally. As such they are the
encroachers cum trespassers over the said property.
20.
Per plaintiffs, the defendants are causing hindrances and
obstacles in the way of Plaintiff’s Day to day operation. Due to said
illegal and unlawful trespassing and encroachment on the part of
Defendants in the suit passage; plaintiff is not in a position to carry out
the development of rest of the property. BMC is not permitting the
Plaintiff to utilize the FSI in respect of any portion of said entire
property being occupied by tenants/occupants and/or trespassers/
encroachers. It is urged by the plaintiff that on account of illegal
trespassing of suit passage by the Defendants, Plaintiff is not permitted
by MCGM to use FSI of said 11' x 21' Sq.Ft. of land while carrying out
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(12)
the development of sald entire property. Dhe Defendants are Illegally
storing the old defunct junk machinery in the suit passage and thereby
causing nuisance as well as inconvenience to other tenants/occupants
and also to the new flat purchasers to whom the Plaintiff had sold
flats/shops/garages in the Inder Tower Building and Inder Tower
annexe buildings. The Plaintiff states that more over, the said activity is
hazardous to the lives of tenants/occupants/flat purchasers.
I believe there is worth of credit in the version posed by the plaintiffs.
By way of detail evidence plaintiffs have shown substance in their
version. Apparently, all documents are corroborating their version and
as such, they remained unchallenged throughout the hearing.
21. Summing up, culmination of factual scenario manifested
hereinbefore speaks into volume that the defendants have unlawfully
and illegally encroached over the suit passage and thus, the suit passage
deserves to be restored with the plaintiffs. The defendants are
trespassers in the suit passage and thus the plaintiffs are entitled for
recovery of said passage from the defendants. Precisely, the plaintiffs
are entitled for such declaration and other desired reliefs as craved. At
the end, I answer both points in favour of the plaintiffs.
22.
Ergo the final order.
ORDER
1. Suit No.2572 of 2019 is decreed with cost.
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Judgment (13) Suit No.2572/2019
2. It is herby declared that the defendants are trespassers in respect
of the Open passage admeasuring 11 x 21' Sq. Ft. at Shroff
Market, Main building, bearing F.P.No.578 and 579, Gokhale Road
(South), Dadar (West), Mumbai – 400025, which is more
particularly described in Schedule Exhibit C annexed with the
plaint.
3. Defendants are hereby directed to forthwith handover to the
plaintiff vacant and peaceful possession of encroached Open
passage admeasuring 11 x 21' Sq. Ft. at Shroff Market, Main
building, bearing F.P.No.578 and 579, Gokhale Road (South),
Dadar (West), Mumbai – 400025,, which is more particularly
described in Schedule Exhibit C annexed with the plaint.
4. An inquiry be held for quantifying the amount of the mesne
profit, to be paid to the plaintiff by the defendant, from the date
of institution of present suit until delivery of possession of the suit
passage described in Schedule Exhibit C annexed with the plaint,
vide Order XX Rule 12 of the Code Of Civil Procedure, 1908.
5. Schedule Exhibit C annexed with the plaint shall form as part and
parcel of the Decree.
(Amit Anant Laulkar)
Judge,
Date : 18/12/2025 City Civil Court, Gr. Bombay.
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(14)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
22.12.2025 3.55 p.m. Shilpa P. Pawar
Stenographer - Grade IUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. Amit A. Laulkar
Court Room No.2.
Date of Pronouncement of ORDER 18.12.2025
ORDER signed by P. O. on 22.12.2025
ORDER uploaded on 22.12.2025
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