Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-601-18 Suit 431-18
CNR NO.MHCC010023162018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 601 OF 2018
IN
S.C. SUIT NO. 431 of 2018
Ashfiya Khatoon Israr Ahmed Malik ] .. Plaintiff.
Versus
1. Mushtaque Maqbool Malik ]
2. Ishtiyaque Maqbool Malik. ] .. Defendants.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 4).
DATE: 1st March, 2018.
Adv. for the plaintiff present.
Adv. for the defendants present.
ORDER
The plaintiff has taken out this notice of motion for
restraining the defendants from obstructing and interfering with her
possession of the suit premises.
2. The plaintiff has submitted that she is in peaceful use,
occupation, possession and owner of Gala No.2, admeasuring about
more than 3000 square feet. The said premises originally belonged to
her fatherinlaw. The defendant Nos. 1 and 2 are her brotherinlaws.
Her fatherinlaw purchased the said property in the year 2005 for
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Rs.4,00,00/. The plaintiff and her husband were taking care of father
inlaw. On 09/02/2010, through a Sale Deed, the said premises were
sold to her for consideration of Rs.6,00,000/. Since then the plaintiff
is in exclusive possession of the suit premises. Her fatherinlaw
expired on 24/08/2016. The plaintiff is carrying on the business of old
wooden scrap from the suit premises and is having Shops Act,
registration certificate and also electricity bill. The defendant No. 1 and
2 on 07/01/2018 forcibly tried to close her business. They with few
other persons have been squatting outside the suit premises and are
preventing her ingress and egress and thereby obstructing and
interfering with her possession. Hence, the instant suit is filed for
permanent injunction.
3. The defendants filed reply to the notice of motion denying
therein the contention of the plaintiff. It is stated that the suit is not
maintainable without seeking any substantive relief. It is stated that
the plaintiff and defendants are the coowners of the suit premises,
being legal heirs of Maqbool Malik. The plaintiff has filed this suit on
the basis of forged and fabricated documents. It is specifically stated
that the father of the defendants used to sign in Hindi and Urdu. But,
the alleged documents produced by the plaintiff shows that he put his
thumb impression. The fact depicts that documents are forged
documents. It is stated that since the lifetime of their father the
plaintiff's husband and defendants are doing the business of wooden
scrap from the suit premises and they are in joint possession. It is
further stated that it is very improbable that property worth Rs.one
crore would be sold for Rs.6,00,000/ and about that payment is made
in cash. The documents about the possession of suit premises are
prepared very recently. It is denied by the defendants that they are
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trying to disturb the possession of the plaintiff. On these grounds, the
defendants prayed for dismissal of the notice of motion.
4. Heard the Advocate for the plaintiff and defendants.
Perused the authority cited by the plaintiff.
5. In view of rival pleadings of the parties following points
arise for my determination and I have recorded my findings thereon for
the reasons to follow:
POINTS FINDINGS
(1) Whether plaintiff has made out prima
facie case ? : No.
(2) Whether balance of convenience lies in
her favour ? : No.
(3) Whether irreparable loss will be caused
to plaintiff, if no relief is granted ? : No.
(4) What order ? : As per final order.
REASONS
Point Nos.1 to 3 :
6. The plaintiff has come with a case that the suit premises
admeasuring about 3000 square feet belonged to her fatherinlaw and
father of the defendants. She is stating that since 2010 she is in
continuous possession of the suit premises, after purchasing the same
from her fatherinlaw for valuable consideration of Rs.6,00,000/. The
plaintiff alongwith her husband is carrying out the business of wooden
scrap. The plaintiff has relied upon the Sale Deed, Power of Attorney
and Shop and Establishment License and electricity bills to support her
contention.
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7. The defendants have disputed the execution of the Sale
Deed in favour of the plaintiff. It is categorically stated that their
father used to sign, but the Sale Deed reflects that there is thumb
impression of their father. Therefore, they have stated that all the
documents are forged documents.
8. The defendants have denied the execution of Sale Deed in
favour of the plaintiff, thereby they are disputing the title of the
plaintiff. The plaintiff has filed the Sale Deed, which is not registered.
Consideration of Rs.6,00,000/ was paid in cash and the said fact
primafacie creates doubt in the case as put forth by the plaintiff. There
is specific contention of the defendants that on the Sale Deed there is
thumb impression, whereas their father used to sign the documents.
The defendants have produced documents showing that the same was
signed by their father. The plaintiff did not file any rejoinder denying
thereby the contention of the defendants that her father in law was not
signing and only affixing thumb impression. In these circumstances,
there is doubt created in the documents filed by the plaintiff and her
ownership.
9. The defendants have categorically stated that they were
doing the business of scrap alongwith their father and they have
continued the said business and are doing the same alongwith the
husband of the plaintiff. There is no denial by the plaintiff to the said
fact by filing rejoinder. There is nothing on record to show that what
nature of the business the defendants were carrying out. The another
fact needs to be noted is that the Sale Deed is executed by the fatherin
law of plaintiff in the year 2010. However, she has taken steps to get
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the electricity meter and Shops and Establishment License in her name
in the year 2017. No reasons are given for delay. If those documents
are perused, then it shows that the Shop and Establishment License is
issued on 05/10/2017 and electricity bill is dated 06/11/2017 and the
present suit is filed on 05/01/2018 i.e. within two or three months on
getting the documents in her name. Therefore, this factual aspect also
creates a doubt in the case putforth by the plaintiff. The defendants
have stated that they are coowners of the suit premises. The
ownership of the plaintiff on the basis of the unregistered documents is
disputed then the plaintiff needs to seek substantial relief and therefore
taking into consideration the entire material on record I find that the
plaintiff has absolutely failed to make out a primafacie case in her
favour.
10. The Advocate for the plaintiff relied upon the decision in
case of Dalpat Kumar and Anr. Versus Pralhad Singh and Anr. [AIR
1993 SC 276 b]. However, the said decision will not help the case of
the plaintiff as it is stated in the authority that the burden is on the
plaintiff by evidence aliunde by affidavit or otherwise that there is
primafacie case, which needs adjudication at the trial and that the
existence of the primafacie right and infraction of the enjoyment of his
property or the right is a condition for grant of temporary injunction.
However, in the present case, as discussed earlier by me, the plaintiff
has not been able to make out any primafacie case in her favour and
she has been unable to show that she alone is in exclusive possession of
the suit premises since 2010, as stated by her.
11. As the plaintiff has not been able to make out a primafacie
case, the question of irreparable loss and balance of convenience does
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not arise. Therefore, I answer Point Nos.1 to 3 in negative and proceed
to pass the following order.
ORDER
The Notice of Motion No.601 of 2018 is dismissed.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 01/03/2018
Dictated on: 01/03/2018
Transcribed on: 03/03/2018
Signed on: 03/03/2018
dbm/cr4
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
03/03/2018 at 3.55 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.4)
Date of Pronouncement of
Judgment/Order
01/03/2018
Judgment/Order signed by P.O.on 03/03/2018
Judgment/Order uploaded on 03/03/2018
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