Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.839/2019 ..1.. Suit No.398/2019
CNR No.MHCC010021682019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.839 OF 2019
IN
SUIT NO.398 OF 2019
Vardisingh Kishansingh Rajput @ Shankarbhai .. Plaintiff
Versus
Jivraj Laxman Solanki .. Defendant
Mr. Jayesh Rajput & Mr. Bharat Kothari, advocate for plaintiff
Mr. J.M. Puranik, advocate for defendant
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 13th August, 2019
ORAL ORDER
Notice of motion is taken out by plaintiff seeking relief of
temporary injunction restraining defendant, his servants, agents or any
one claiming through him from dispossessing him and his family
members from suit premises.
2. It is the contention of plaintiff that since last 16 years he and his
family are residing in Room No.24, 2nd Floor, Ramsagar Chs Ltd.,
Asalpha Village, Kajupada, Ghatkoper (West), Mumbai84 admeasuring
approximately 550 square feet (In short 'suit premises'). Initially, he
was put in possession of suit premises on payment of heavy deposit by
its previous owner Laxman Bijal Solanki. Subsequently, said Laxman
Solanki agreed to sale suit premises to plaintiff by Agreement for Sale
dated 21.05.2004 for total consideration of Rs.30,00,000/ (Rupees
Thirty Lakhs only). Under said agreement, Laxman Solanki
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acknowledged receipt of Rs.5,00,000/ (Rupees Five Lakhs) from
plaintiff with further understanding that plaintiff will pay balance
payment on or before 2011 to earlier owner (Laxman Solanki). It is
further contended that since 2002, he and his family members are in
exclusive use, occupation and possession of suit premises. He is having
documents such as his children's school identity card, progress reports
and admission form showing the address of suit premises. Since 2004,
he is paying electricity bills and society maintenance. Even he has
applied for gas connection at the address of suit premises.
3. It is further contended that Mr. Laxman Solanki has executed
sale deed date 26.12.2013 and confirmed receipt of entire consideration
and further agreed to register the said document before Sub Registrar.
But, said Laxman Solanki did not come to register the said document.
Therefore, plaintiff made an inquiry about the same with his son Dinesh
Solanki who in reply told plaintiff about inability of Laxman Solanki to
come for registration on account of his health. Even Dinesh Solanki also
executed consent affidavit in that regard. Laxman Solanki expired in
October, 2018.
4. It is further contended that defendant vide letter dated
31.01.2019 asked plaintiff to vacate the suit premises. Even on
31.01.2019 at about 6.30 p.m. defendant visited the suit premises and
threatened plaintiff's daughter to convey message to plaintiff for
vacating the suit premises. Therefore, plaintiff lodged complaint with
police regarding the said incident. However, defendant continues to
give threats to plaintiff. Even on 10.02.2019 defendant has made an
unsuccessful attempt to dispossess him from the suit premises.
5. It is further contended that inspite of purchasing suit premises
for consideration from previous owner; the ownership document in
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respect of suit premises could not be transferred in his name as said
owner never turned up for registration of the said document. He and
his family members are under constant threat of defendant. He is in
possession of suit premises since last 16 to 18 years. If he is
dispossessed from suit premises without following due process of law
then irreparable loss and prejudice would be caused to him at the hands
of defendant. Hence, plaintiff urged in above terms.
6. Defendant did not file affidavit in reply to present notice of
motion. But he has filed pursis to the effect that preliminary reply and
written statement filed by him shall be treated as affidavit in reply to
present notice of motion. Defendant has denied possession of plaintiff
over suit premises is legal and valid. According to him, possession of
plaintiff is that of a rank trespasser over suit premises. Alleged
agreements dated 21.05.2004 and 26.12.2013 are false and bogus
documents. He was constrained to issue the letter to plaintiff by
registered post to vacate the suit premises. It is further contended that
preliminary issue regarding maintainability of present suit is required to
be framed and decided before hearing of main suit. Plaintiff has not
approached this Court with clean hands and so, he is not entitled for
any relief as sought. Plaintiff has failed to comply the provisions of
Specific Relief Act, 1963 and Civil Procedure Core, 1908 and therefore,
suit is liable to be dismissed. Accordingly, by denying averments and
allegations of the plaintiff; defendant prayed for dismissal of notice of
motion.
7. Perused notice of motion, affidavit in support of it and pleadings
of the parties. Heard learned counsel for both sides. They advanced
their arguments in accordance with respective contention of parties.
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8. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under :
POINTS FINDINGS
1.Whether plaintiff has got prima facie case? …Yes.
2.Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
…Yes.
3.Whether balance of convenience lies in favour of
plaintiff?
…Yes.
4. What order? As per Final
Order
REASONS
As to point Nos.1 to 3:
9. Plaintiff is claiming his possession over suit premise since 2002.
Defendant in his written statement contended that possession of
plaintiff over suit is that of rank trespasser. Thus, it is clear that
defendant is not disputing possession of plaintiff over suit premises.
Plaintiff has claimed that father of defendant has executed agreement of
sale of suit premises in his favour on 21.05.2004 and subsequently it
was confirmed by him on 26.12.013 by executing sale deed. Defendant
denied execution of agreement of sale dated 21.05.2004 and also
execution of sale deed dated 26.12.2013. Both documents are
unregistered. Transfer of immovable property above value of Rs.100/ is
required to be made by registered instrument. So, for want of
registration of document dated 26.12.2013, same cannot be considered
as document conferring title of suit premises upon the plaintiff. May it
be so, possession of plaintiff over suit premises is not disputed by
defendant. Further, copy of identity card and progress reports of son of
plaintiff show address of suit premises. So also, identity cards issued by
the college to the daughter of plaintiff also show address of the suit
premises. Even copy of progress report of his daughter issued by school
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show address of suit premises. These documents fortify contention of
plaintiff that he is in possession of suit premises. He has also filed copy
of electricity bills of different period of suit premises to show that he
has paid electricity consumption charges in relation to suit premises.
No doubt, those bills do not stand in the name of plaintiff but plaintiff is
having copy of those bills suggests prima facie that he must have paid
those bills. Copy of invoice in relation to domestic gas connection issued
by the agency of HP Gas shows that it was issued in the name of
plaintiff at the address of suit premises on 20.05.2002. Copy of bills
relating to domestic gas cylinder of different months show that same
were issued at the address of suit premises in the name of plaintiff.
Thus, prima facie there are documents which show that plaintiff is in
possession of suit premises since many years. He has every right to seek
protection of his possession and he cannot be evicted without following
due process of law. Copy of NC report shows that defendant has given
threat to the plaintiff to vacate suit premises. From the discussion made
above, plaintiff has proven that he has got prima facie case. Certainly,
he will suffer irreparable loss if relief sought is not granted in his
favour. More so, considering that he is in long possession of suit
premises so balance of convenience also lies in his favour. Hence, I
answer point Nos.1 to 3 in affirmative. In light of discussion made
above, following order is passed:
ORDER
1. Notice of Motion No.839 of 2019 is allowed and made absolute
in terms of prayer clause (a).
2. Costs will be the cause in the suit.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date: 13.08.2019 Gr. Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16.08.2019, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
13.08.2019
JUDGMENT/ORDER signed by P.O.
on
14.08.2019
JUDGMENT/ORDER uploaded on 16.08.2019
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