Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM No.51018 in SC SU No.15118
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.510 OF 2018
(CNR No.MHCC010019932018)
IN
S.C.SUIT NO.151 OF 2018.
(CNR No.MHCC010128322017)
Kunda Vijay Jadhav }...PLAINTIFF.
Versus
Surekha Ashok Jadhav and Ors. }...DEFEDANTS.
Shri.Jagtap, learned advocate for the plaintiff.
Shri.Almeda, learned advocate for defendant Nos.1 to 3
Shri.Trivedi, learned advocate for defendant No.4.
CORAM : HIS HONOUR JUDGE SHRI. P.P.RAJVAIDYA (C.R.NO.12)
O R A L O R D E R
(Delivered on 19/01/2019)
1. By filing this Notice of Motion, plaintiff has prayed to direct
defendant Nos.1 to 3 to remove themselves from the suit premises.
Relief is also claimed to further restrain those defendants from
interfering and disturbing into plaintiff's use, occupation and possession
over the suit premises and/or dispossessing the plaintiff from the suit
premises, pending final disposal of the suit. Read the affidavit filed in
support of the Notice of Motion & reply filed by the defendants. Heard
learned Shri.Jagtap, advocate for the plaintiff, learned Shri.Almeda,
advocate for defendant Nos.1 to 3 and learned Shri.Tivedi, advocate for
defendant No.4. Perused the entire record.
2. Learned advocate for the plaintiff argued that plaintiff is in
long standing possession of the suit premises, defendant Nos.1 to 3 are
the married daughters of plaintiff's brotherinl aw and those defendants
were residing in their respective matrimonial houses but those
defendants have forcibly entered into the suit premises in year 2017 &
started claiming rights in the suit premises illegally. He argued that
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defendant No.2 has moved application for changing electric meter in
her name, none of the documents produced by the defendant Nos.1 to 3
are sufficient to show their possession over the suit premises before
year2017, defendant Nos.1 to 3 have filed false complaint against the
plaintiff and her daughter. He argued that defendant Nos.1 to 3 do not
have any rights in the suit premises yet those defendants are illegally
disturbing into plaintiff's possession over the suit premises by staying
therein hence, it is necessary to issue direction to the defendants to
remove themselves from the suit premises and it is also necessary to
restrain them from interfering into plaintiff's peaceful use, occupation &
possession over the suit premises by granting temporary injunctions in
favour of plaintiff as are claimed in the Notice of Motion.
3. As against this, learned advocate for defendant Nos.1 to 3
argued that photopass in respect of the suit premises has been issued in
the name of grandfather of defendants, plaintiff was residing in some
other premises but plaintiff has disposed of said premises & thereafter,
on request of the plaintiff, defendants have allowed the plaintiff to stay
in the premises but now, plaintiff has started claiming rights in the suit
premises illegally. He argued that plaintiff's claim is based on false
documents hence, plaintiff is not entitled for any of the reliefs claimed.
4. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether primafacie case lies in favour of the
plaintiff? ...No.
ii)Whether balance of convenience lies in favour
of the plaintiff? ...No.
iii)Whether irreparable loss will cause to the
plaintiff if injunctions as prayed are not granted? ...No.
iv)What order? ...As per final order.
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R E A S O N S
AS TO POINT Nos.(i) TO (iii):
5. All the points are taken together for consideration. At the
outset, it would be apposite to mention here that it is not in dispute that
fatherinlaw of the plaintiff was the grandfather of the defendants & he
was the original tenant in respect of suit premises. Various allegations
are made in the plaint by the plaintiff that defendant Nos.1 to 3 have
performed their respective marriages with the persons of other religions
however, performing marriage with the persons in some other religion
is not sufficient for extinguishing the rights inherited, if any, in the
property by anybody hence, those contentions are not required to be
given any importance while deciding this Notice of Motion.
6. Both the parties have produced certain documents on
record. Even though both the parties have disputed the rights in suit
premises of their respective adverse party, it is clear from the
contentions raised by both the parties that both parties are in possession
of the suit premises. Since the parties are in joint possession of the suit
premises, it is not possible to accept the prayer of the plaintiff to
restrain defendant Nos.1 to 3 from interfering and obstructing into her
possession over the suit premises.
7. Plaintiff has produced various documents like copies of
Ration Cards, Death Certificate of plaintiff's husband, Adhar Card,
Affidavit executed by plaintiff's husband for transfer of suit premises in
the name of plaintiff's husband from the name of father of plaintiff's
husband, Bank PassBook, etc.. All those documents are issued on the
address of suit premises which are sufficient for accepting that plaintiff
is residing in the suit premises since long. Defendants have also
produced certain documents which show that they are residing in the
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suit premises. As mentioned earlier, both parties have come admitted
that both parties are in joint possession of the suit premises. It would be
just to consider the statements made in the affidavit executed by
plaintiff's husband for transfer of suit premises in his name from the
name of father of plaintiff's husband.
8. Perusal of said copy of affidavit produced by the plaintiff
shows that husband of the plaintiff had undertaken that he takes the
complete responsibility against any adverse claims, disputes, litigations
etc. arises any in future in the matter, if the suit premises is transferred
in his name from the name of his father. Admittedly, defendant Nos.1
to 3 are the daughters of brother of plaintiff's husband. Copy of death
certificate produced by defendant Nos.1 to 3 shows that their father
died while staying in the suit premises. Apparently, father of defendant
Nos.1 to 3 had inherited the suit premises jointly with plaintiff's
husband from the fatherinlaw of the plaintiff. Since, defendant Nos.1
to 3 are the only surviving legal heirs in ClassI of their deceased father,
it appears that half share of their father in suit premises has devolved
upon defendant Nos.1 to 3 after death of their father. In view of said
factual position, I could not find any force, at least at this stage of the
proceeding, in the contention of plaintiff that defendants are liable to be
removed from the suit premises. On that count, plaintiff is not entitled
for relief claimed in that regard. Further relief being based on the said
relief, there is no question of granting said relief in favour of plaintiff.
9. For all the above mentioned reasons, I hold that neither
that primafacie case nor balance of convenience do lie in favour of the
plaintiff. In the result, there is no question of causing any irreparable
loss to the plaintiff if injunctions as prayed are not granted in her favour
hence, by answering Point Nos.(i) to (iii) accordingly in the negative, I
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pass the following order.
ORDER
Notice of Motion No.510 of 2018 stands rejected.
Costs in the main cause.
Date:19/01/2019 (P. P. RAJVAIDYA)
Dictated on : 19/01/2019. Judge, C.R.No.12,
Transcribed on : 19/01/2019. City Civil Court,
Checked on : 23/01/2019 Gr. Bombay.
Signed on : 23/01/2019.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
24/01/2019 at 3.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.12)
Date of pronouncement of Order 19/01/2019
Order signed by P.O. on 23/01/2019
Order uploaded on 24/01/2019
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