Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment (Exh.13) ..1.. S.C. Suit No.554 of 2019
MHCC010020902019
Exh.13
Lodged on : 22.02.2019
Registered on : 01.03.2019
Decided on : 02.05.2022
Duration : 03Y 02M 09D
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
S.C. SUIT NO. 554 OF 2019
(CNR No.MHCC0100 209020 19)
Usha Bharat Gaikwad
Age : 43 years,
R/o. Room No. 22, Stany Chawl,
Opposite Building No. 16,
Bail bazar, Wadiya Estate,
Kurla (W), Mumbai 400 070. ...Plaintiff.
Versus
Dipak Sitaram Chavan
Age: 49 years,
R/o. Room No. 22, Stany Chawl,
Opposite Building No. 16,
Bail bazar, Wadiya Estate,
Kurla (W), Mumbai 400 070. …Defendant.
Appearance
Adv. N. K. Dubey for the plaintiff.
Defendant proceeded Exparte.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 02nd May, 2022.
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Judgment (Exh.13) ..2.. S.C. Suit No.554 of 2019
J U D G M E N T
Present suit has been filed for declaration, possession, injunction
and mesne profits in respect of the suit premises i.e., Room No. 22,
Stany Chawl, Opposite Building No. 16, Bail bazar, Wadiya Estate,
Kurla (W), Mumbai 400 070.
2. Plaintiff's case, in short, is that plaintiff was and is the
owner and possessor of the suit premises. Room of the defendant
admeasuring approximately 30 ft. was behind the suit premises. In the
year 2013, Municipal Corporation of Greater Mumbai, (MCGM) had
issued notice for demolition of the suit premises as well as room of the
defendant. Hence, plaintiff filed L.C. Suit No. 2577 of 2013 against the
MCGM and the Court restrained MCGM from demolishing the suit
premises. However, premises of the defendant was demolished. Articles
of the defendant were lying on the road. Hence, defendant requested
the plaintiff to allow him to occupy the suit premises so that he may be
able to search new premises. Accordingly, plaintiff allowed the
defendant to occupy the suit premises on humanitarian ground for
temporary period but since five years defendant is not vacating the suit
premises. Hence, plaintiff filed the present suit for declaration that the
defendant is a trespasser, possession of the suit premises, injunction
restraining the defendant from creating third party interest in the suit
premises and mesne profits for wrongful use and occupation of the suit
premises.
3. Writ of summons is duly served on the defendant
through bailiff on 24.07.2019 but he remained absent. Hence, on
03.10.2019, suit is proceeded exparte against the defendant.
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Judgment (Exh.13) ..3.. S.C. Suit No.554 of 2019
4. Heard advocate for the plaintiff. Perused the record. Considering
averments in the plaint and documents filed on record, following
points arise for determination. My findings thereon for the reasons are
as under :
Sr. No. POINTS FINDINGS
1 Whether plaintiff proves that she was in
possession of the suit premises before the
year 2013 ?
Yes.
2 Whether plaintiff is entitled for the reliefs
claimed ?
Yes.
3 What decree and Order ? Suit is decreed as per
final order.
R E A S O N S
5. Plaintiff, Usha Bharat Gaikwad examined herself at Exh.3 by
filing affidavit of examination in chief in which she reiterated the
averments in the plaint. She also filed on record, list of documents at
Exh.4. Following documents are marked as exhibits in her evidence
i) Letter dated 3.03.1990 issued by Tahasildar to the plaintiff for
payment of non agricultural taxes from 01.08.1989 (Exh.5),
ii) Two ration cards of the plaintiff (Exh.6 colly),
iii) Electricity bill (Exh.7),
iv) Assessment bills issued by MCGM (Exh.8 colly),
v) Aadhar Card of the plaintiff (Exh.9),
vi) Election Identity Card of the plaintiff (Exh.10),
vii) Birth Certificate of Omkar Bharat Gaikwad, son of the plaintiff
(Exh.11) and
viii) Notice dated 23.09.2013 issued by Assistant Engineer, B & F, L
ward of MCGM (Exh. 12).
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Judgment (Exh.13) ..4.. S.C. Suit No.554 of 2019
6. Defendant remained absent in spite of service of writ of
summons and the suit is proceeded exparte. Thus, evidence of the
plaintiff remained unchallenged. Hence, adverse presumption can be
drawn against the defendant under Section 114 of the Evidence Act.
POINT NO. 1 :
7. Contention of the plaintiff is that she was owner and possessor
of the suit premises. However, plaintiff did not file on record any
document of ownership. However, from letter dated 3.03.1990 issued
by Tahsildar to the plaintiff for payment of non agricultural taxes from
01.08.1989 (Exh.5) and notice dated 23.09.2013 issued by Assistant
Engineer, B & F, L ward of MCGM (Exh. 12), it is evident that the
plaintiff was in possession of the suit premises. Possession of the
plaintiff in the suit premises is also evident from Ration Cards of the
plaintiff (Exh.6 colly), Electricity bill (Exh.7), Assessment bills issued by
MCGM (Exh.8 colly), Aadhar Card of the plaintiff (Exh.9), Election
Identity Card of the plaintiff (Exh.10) and Birth Certificate of Omkar
Bharat Gaikwad, son of the plaintiff (Exh.11).
8. Further, plaintiff stated that she filed L.C. Suit No. 2577 of 2013
against the MCGM for injunction to restrain the MCGM from
demolishing the suit premises. This Court verified the status of L.C. Suit
No. 2577 of 2013. Said suit is pending before the Court Room No.11,
interim order is passed thereby restraining the MCGM from demolishing
the suit premises and said interim order is continued till date. Thus,
from the documents filed on record and status of L.C. Suit No. 2577 of
2013, it is evident that the plaintiff was in possession of the suit
premises till the year 2013. Hence, point no.1 is held as proved and
answered in the affirmative.
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Judgment (Exh.13) ..5.. S.C. Suit No.554 of 2019
POINT NO.2 & 3:
9. Contention of the plaintiff is that in the year 2013, Municipal
Corporation of Greater Mumbai, (MCGM) had issued notice for
demolition of the suit premises as well as premises of the defendant.
Hence, plaintiff filed L.C. Suit No. 2577 of 2013 against the MCGM and
the Court restrained MCGM from demolishing the suit premises.
However, premises of the defendant was demolished. Articles of the
defendant were lying on the road. Hence, defendant requested the
plaintiff to allow him to occupy the suit premises so that he may be able
to search new premises. Accordingly, plaintiff allowed the defendant to
occupy the suit premises on humanitarian ground for temporary period
but since five years defendant is not vacating the suit premises on one
or other pretext.
10. It is evident that as Assistant Engineer, B & F, L ward of MCGM
(Exh. 12) issued notice dated 23.09.2013 to the plaintiff for demolition
of the suit premises, she filed L.C. Suit No. 2577 of 2013 against the
MCGM and due to interim order passed by the Court, suit premises is
not demolished. However, premises of the defendant, which was behind
the suit premises of the plaintiff, is demolished by the MCGM in the
year 2013. Plaintiff allowed the defendant to occupy the suit premises
for temporary period so that he can arrange the new premises. Plaintiff
deposed that since five years, defendant is not vacating the suit
premises on one or other pretext. Hence, defendant is a trespasser.
11. As per Section 5 of the Specific Relief Act, 1963, a person
entitled to the possession of specific immovable property may recover it
in the manner provided by the Code of Civil Procedure, 1908. Premises
of the defendant is demolished by the MCGM in the year 2013. Plaintiff
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Judgment (Exh.13) ..6.. S.C. Suit No.554 of 2019
allowed the defendant to occupy the suit premises for temporary period
so that he can arrange the new premises. Since five years, defendant is
not vacating the suit premises on one or other pretext.
12. Under the facts, circumstances and evidence on the record,
plaintiff is entitled for possession of the suit premises. As the suit
premises is in possession of the defendant and he refused to vacate the
suit premises, apprehension of the plaintiff that defendant may create
third party interest in the suit premises is reasonable. As the defendant
is unlawfully occupying the suit premises of the plaintiff, he is liable to
pay mesne profits to the plaintiff. Accordingly, point no.2 is answered in
the affirmative and as to point no. 3, this Court proceeds to pass
following order:
ORDER
1. Suit is decreed with costs.
2. Defendant shall handover possession of the suit premises to the
plaintiff within three months from the date of this order.
3. Defendant is hereby restrained from creating third party interest
in the suit premises.
4. Separate inquiry under Order 20, Rule 12 of the Code of Civil
Procedure, 1908 be initiated at the instance of plaintiff, if she
desires, for mesne profits.
5. Decree be drawn up accordingly.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 02.05.2022
Typed on : 02.05.2022
HHJ signed on : 02.05.2022
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Judgment (Exh.13) ..7.. S.C. Suit No.554 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 02.05.2022, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. M.M.Kadam
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
02.05.2022
JUDGMENT/ORDER signed by P.O.
on
02.05.2022
JUDGMENT/ORDER uploaded on 02.05.2022
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