Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM-862-2019 in SU-224-2019
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.862 OF 2019
(CNR No.MHCC01-002269-2019)
IN
SUIT NO.224 OF 2019.
(CNR No.MHCC01-000106-2019)
Saeedabi Fateh Mohammed Qureshi }...PLAINTIFF.
Versus
Yasmin Fakir Mohammed Qureshi }...DEFENDANT.
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Shri.Arvind Dwivedi, learned advocate for the plaintiff.
Shri.Bhatia, learned advocate for defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 02/05/2022)
1. This Notice of Motion is taken out by the plaintiff for
seeking the following relief;
a) Pending the hearing and final disposal of the suit the
defendant, her heirs, legal representatives, agents, servants,
family members and/or any person or persons claiming through
or under her may be restrained from creating third party interest
the suit premises or disturbing the joint possession of the plaintiff
in respect of suit premises in any manner whatsoever except by
due process of law;
2. Read the affidavits filed in support of their respective
contentions by both the parties. Heard learned Shri.Arvind Dwivedi
advocate for the plaintiff and learned Shri.Bhatia advocate for the
defendant. Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff? ...No.
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ii) Whether balance of convenience lies in her
favour? ...No.
iii) Whether irreparable loss will cause to the
plaintiff if interim reliefs as claimed is not
granted? ...No.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that deceased husband of the plaintiff
and deceased husband of the defendant were real brothers
interse,
father-in-law of the plaintiff and defendant was the owner of the suit
shop, their father-in-law expired in year 1971 after which, suit shop
came to be transferred in the name of the husband of the defendant by
consent of the husband of the plaintiff, mother-in-law of plaintiff and
the defendant as husband of defendant was the elder son. He argued
that husband of defendant expired on 18/09/2006. He argued that
before death, mother-in-law has transferred Room No.11-12 in Khalifa
Building in the name of husband of the plaintiff and entire family of the
plaintiff and defendant was residing jointly in the said room. He argued
that some dispute had arisen in year 2011 in respect of shares in the
said room and the suit premises hence husband of the plaintiff and the
defendant have entered into an oral family agreement by virtue of
which, it was agreed that husband of plaintiff and the defendant shall
have equal shares in both those premises. He argued that it was agreed
that Room No.11-12 in Khalifa Building shall be disposed off and sale
proceeds shall be shared equally between plaintiff and defendant so
also, it was agreed that suit shop shall be given on leave & license basis
and the amount of monthly compensation shall be shared equally
between the husband of the plaintiff and the defendant with further
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understanding that in case the suit shop is sold, the sale proceeds shall
also be shared equally. He argued that on request of the defendant, the
arrangement so made was recorded by way of memorandum of family
arrangement which was signed by the husband of the plaintiff and the
defendant so also by the legal heirs from both the sides except by the
daughters of the defendant as they were not available. He argued that
said memorandum was handed over to the defendant for taking
signatures of her daughters but defendant has retained the original with
her. He argued that husband of the plaintiff disposed of Room No.11-12
in Khalifa Building for Rs.36 Lakh, husband of the plaintiff had received
a token of Rs.1 Lakh from the purchaser out of which, he gave
Rs.50,000/- to the defendant by cheque. He argued that 50% share in
the sale proceeds of the said room has already been given to the
defendant by the husband for the plaintiff. He argued that elder son of
the plaintiff was running a business of STD/PCO in the half portion of
the suit shop and son of the defendant was running a business of goat
skin in the remaining half portion of the suit shop before the family
arrangement. He argued that as per the family arrangement taken place
in year 2011, suit shop was temporary partitioned in three parts out of
which, one part was with use and occupation of son of plaintiff, second
part was in use and occupation of son of defendant and third part was
given on leave and license basis to the third person. He argued that by
closing down STD/PCO business, son of plaintiff started business of
chips and biscuits in the first part in year 2016 by obtaining necessary
license from BMC. He argued that on account of the dispute raised by
the defendant, the licensee occupying the third part has been removed
and suit shop is again restored into two parts out of which one part is
used for the family business of goat skin and other part is given on leave
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and license basis to Nagori Garib Nawaz Milk Center at monthly
compensation of Rs.16,000/- with security deposit of Rs.8 Lakh and
those amounts were agreed to be shared equally between the defendant
and husband of the plaintiff. He argued that husband of the plaintiff
was expired on 08/06/2017, plaintiff came out of said trauma in June
2018 and claimed share of her husband at the defendant in the
compensation amount but defendant avoided and told the plaintiff that
she has used the entire compensation amount and the plaintiff shall
collect entire monthly compensation from July 2018 from the licensee.
He argued that when the plaintiff had approached the licensee on
15/07/2018, he had refused to pay monthly compensation to the
plaintiff by saying that defendant has told him to give compensation to
the defendant only. He argued that defendant has taken a stand that the
family arrangement is not binding on her and she will not give any
share to the plaintiff and has threatened to dispose of the suit shop to
the third party. He argued that plaintiff and defendant are in joint
possession of the suit shop and if the defendant succeeds in
dispossessing the plaintiff from the suit shop so also in creating third
party rights in the suit shop pending final decision of the suit, it will
cause an irreparable loss to the plaintiff hence, Notice of Motion shall
be made absolute.
5. As against this, learned advocate for defendant argued that
son of plaintiff was temporarily permitted by defendant to use & occupy
part of suit shop for his STD/PCO business as a gratuitous licensee, any
family arrangement had never taken place between the husband of
plaintiff and the defendant and plaintiff has concocted a false story in
that regard. He argued that suit shop was in the name of defendant, she
was in lawful possession thereof and she has already sold it out after
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which, possession has been handed over to the purchaser. He argued
that husband of the defendant was in exclusive possession of the suit
shop, he was paying rent to BMC and after his death, suit shop was
transferred in the name of the defendant. He argued that Nagori Garib
Nawaz Milk Center was in possession of portion of the suit shop but on
18/07/2017, its owner Mohd.Aslam Abdul Jabbar Nagori had initially
entered into leave & license agreement with the defendant and
defendant has surrendered her tenancy rights in respect of the suit shop
in favour of said person and one Mohd.Imran Nagori by declaration
dtd.28/09/2018 so also, defendant has thereafter entered into
agreement for sale dtd.20/03/2019 with those persons and in view of
it, suit shop is already sold by defendant to those persons so also, its
possession is delivered to them by the defendant hence, plaintiff is not
entitled for temporary injunction. He argued that plaintiff has not
joined all the properties in the present suit including the premises sold
out by her husband in Khalifa Building so also shop No.9 situated at
Andheri. He argued that suit is not maintainable as plaintiff has not
claimed partition hence, Notice of Motion is liable to be dismissed.
6. Relationship between plaintiff and defendant is not in
dispute. Plaintiff has produced on record copy of family arrangement
allegedly entered into between the defendant and husband of plaintiff.
Plaintiff has claimed that suit shop is the joint family property of the
plaintiff and defendant. Learned advocate for the plaintiff referred to
the copy of notice reply dtd.17/07/2018 given on behalf of defendant
and argued that defendant has admitted in said reply that suit shop is
joint family property. Though it is mentioned in said notice reply that
suit shop was joint family property, the further averments of said notice
reply suggest that defendant has claimed that suit shop was given to her
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husband in the family arrangement taken place in year 1974-75 and
some another shop was given to the husband of the plaintiff. Having
considered the entire contents of said notice reply, the argument of
learned advocate for the plaintiff is not
prima facie acceptable that
defendant has specifically admitted that suit shop is joint family
property of the plaintiff and the defendant.
7. Contention of the plaintiff that her son was running a
business of STD/PCO till year 2016 and thereafter, he was running a
business in the name of Sadiya Enterprises till April 2017 in the portion
of the suit shop is supported by the copies of telephone bills and other
documents produced with the plaint. Plaintiff has contended that on
account of the dispute raised by the defendant, said half portion has
been given on leave & license basis to Nagori Garib Nawaz Milk Center
in May 2017 on monthly compensation @ Rs.16,000/- and family
business of skin goat is being run in remaining half portion of the suit
shop. Plaintiff has contended that she is entitled for 50% share in the
compensation amount but when the first monthly compensation
amount was payable, husband of the plaintiff expired on 08/06/2017
due to which, plaintiff could not pursue for her 50% share in the
compensation amount that time and for about one year thereafter as
she was in trauma.
8. As per the own contention of the plaintiff, she was not
given the 50% share in the compensation amount till June 2018.
Plaintiff has contended that she was in a trauma due to which, she
could not pursue for claim of her share in the compensation amount for
one year. Explanation given in that regard by the plaintiff is not
prima
facie acceptable at least at this stage because, it was quite possible for
the plaintiff to raise her claim in that regard with the defendant through
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her son who was running businesses from the half portion of the suit
shop. It is the contention of the plaintiff that she is 50% shareholder in
the suit shop. If that be so, then question arises as to why the plaintiff
allowed the defendant alone to enter into leave and license agreement
in respect of the half portion of the suit shop with said Nagori? Plaintiff
has not explained said aspect in any manner.
9. Documents produced by the plaintiff though suggest that
her son was running business in the portion of the suit shop, those
documents do not contain any document which can be said to be a title
document. On the other hand, defendant has contended in her reply
that Photo-pass has been issued in the name of her husband in respect
of the suit shop in year 1976. Defendant has produced copy of said
Photo-pass with her written statement. Plaintiff has filed affidavit in
rejoinder but it appears that plaintiff has not denied the contention of
defendant that Photo-pass has been issued in the name of her husband.
10. Defendant has produced copy of leave & license agreement,
declaration about advance payment and copy of agreement for sale
dtd.20/03/2019 executed by her in favour of third party in support of
her contention that she has already sold the suit shop. As is argued by
learned advocate for plaintiff, there is no registered document executed
by defendant in respect of sale of suit shop however, those documents
are
prima facie sufficient for accepting that defendant has created third
party interests in the suit shop in favour of third party due to which, the
reliefs of temporary injunction claimed by the plaintiff have become
infructous. Even otherwise also, even if the entire case of the plaintiff is
accepted for the time being that she has 50% share in the suit shop, it is
her own contention that as the family arrangement, it is agreed that if
the suit shop is given of leave and license basis or if it is sold then she
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will be entitled for 50% share in the amounts. If that be so then the
contention of the plaintiff cannot be accepted that defendant is not
entitled to create third party interests in the suit shop. Suit is filed for
declaration that family arrangement is valid and subsisting and for
relief of injunction for restraining the defendant from creating third
party interest in the suit shop and from disturbing into joint plaintiff's
possession over the suit shop. Plaintiff has not claimed relief of partition
or share either in the compensation amount or the sale consideration.
11. Thus, contention of plaintiff is not
prima facie acceptable
that she is/was in joint possession of the suit shop with the defendant.
Again, defendant has produced documents which show that defendant
has already created third party interests in the suit shop. Furthermore,
the reliefs claimed in the suit are not in consonance with the contention
raised by the plaintiff in respect of the family arrangement allegedly
entered into between her husband and the defendant. Having regards to
those aspects, this court is of the opinion that neither
prima facie case
not balance of convenience do lie in favour of the plaintiff. In the result,
there is no question of causing any irreparable loss to her if temporary
injunction as claimed is not granted in her favour. For these reasons, by
answering Point Nos.(i) to (iii) accordingly, I pass the following order.
O R D E R
Notice of Motion No.862 of 2019 is dismissed.
Date : 02/05/2022. (P.P.RAJVAIDYA)
Dictated on : 02/05/2022. Judge, C.R.No.62,
Checked on : 04/05/2022. City Civil Court,
Signed on : 04/05/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
04.05.2022 at 12.45 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.62)
Date of pronouncement of Order 02/05/2022
Order signed by P.O. on 04/05/2022
Order uploaded on 04/05/2022
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