Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 624-18 in L.C.SUIT no.423-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 624 OF 2018
(CNR no. MHCC010023912018)
IN
LONG CAUSE SUIT NO. 423 OF 2018
(CNR no. MHCC010022052018)
1. Mr. Pratap Arjunsing Rajput ]
2. Mr. Uday Arjunsing Rajput ]
Both residing at G120, Dattanagar, ]
Sion Trombay Road, ]
Trombay, Mumbai400088. ]....Plaintiffs
V/s
1. Mr. Chandu Jagan Tudawe ]
residing at Datta Nagar, Trombay, ]
Mumbai 400 088. ]
2. The Municipal Corporation of ]
Gr. Mumbai, having their Head office at ]
Mahapalika Bhavan,Mahapalika ]
Marg, Fort, Mumbai400 001 ]....Defendants
Appearances:
Ld. Advocate Mr. Harish Pawar for the Plaintiff.
Ld. Advocate Mr. Vaity for the defendant no. 1.
Ld. Advocate Mrs. Bhoir for defendant nos. 2 and 3/BMC.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 12th June, 2019
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
-- 1 of 8 --
2 NM no. 624-18 in L.C.SUIT no.423-18
2. The plaintiff's contentions in brief are as under:
Plaintiffs no. 1 and 2 are real brothers inter se and residing at
G210, Dattanagar, Trombay, Mumbai 400088. The defendant no. 1 is
their neighbour and residing at adjoining premises. Defendants no. 2
and 3 are local authority and it's chief ward officer respectively.
Plaintiffs are lawful occupants of their premises numbered as
G210, admeasuring about 1000 sq. ft. including front open portion
(hereinafter referred to as "suit premises" for brevity). Prior to 34 years
defendant no. 1 illegally constructed additional room of about
7 X 10 sq. ft. and bathroom with staircase and encroached upon the
open space. In the month of September, 2017, defendant no. 1 started
the work of unauthorized construction on the open space which had
obstructed ingress and egress to the suit premises. In last week of
January, 2018, defendant no. 1 again started encroaching the open
space in front of the suit premises by constructing brick masonry wall
and pakka staircase and illegally constructed 2 floors and open terrace
without any permission of defendant no. 2 / MCGM. The notices issued
by the plaintiffs did not stop the illegal acts of the defendant no. 1. The
plaintiffs and their family members are using the open space right from
inception to approach the adjacent road. Due to illegal acts of defendant
-- 2 of 8 --
3 NM no. 624-18 in L.C.SUIT no.423-18
no. 1, the plaintiffs are unable to use open space for ingress and egress
to approach their suit premises. The defendants no. 2 and 3 have failed
to take action against defendant no. 1. Therefore, the plaintiffs have
prayed for temporary injunction restraining defendant no. 1 from
obstructing and blocking the open space and mandatory injunction
directing him to remove the unauthorized construction. They have also
prayed for mandatory injunction against defendants no. 2 and 3 to take
action against defendant no. 1 for his alleged unauthorized construction
in the open space. They have also prayed for temporary injunction
restraining defendant no. 1 from carrying out any further illegal /
unauthorized construction in the open space till final disposal of the
suit.
3. The defendant no. 1 has filed affidavit in reply contending inter
alia as under:
The area, where the suit premises and defendant no. 1's house are
situated, is declared as "slum". Therefore, this Court has no jurisdiction
to grant the prayers made in the notice of motion. The defendant no. 1
has not carried out any unauthorized construction in the open space as
alleged by the plaintiffs. There is no cause of action to the suit because
the defendant no. 1 underwent cataract surgery on 19.01.2018 of one
eye and on 02.02.2018 of another eye in Vimala Dermatological Centre.
-- 3 of 8 --
4 NM no. 624-18 in L.C.SUIT no.423-18
Due to this, it was impossible for him to start any construction. The
plaintiffs have, with alternative motive, filed the instant suit to grab
their suit premises. Therefore, notice of motion be dismissed with costs.
4. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
Sr.
No. POINTS FINDINGS
1. Whether plaintiffs prove their right of
way over the open space in front of
their suit premises?
In the negative.
2. If yes, Whether plaintiffs prove that
defendant no. 1 obstructed their right
of way by making unauthorized
construction in the open space?
In the negative.
3. Whether plaintiffs have made out 3
ingredients required for grant of
temporary injunction?
In the negative.
4. What order ? Notice of motion is
dismissed.
R E A S O N S
AS TO POINTS NO. 1, 2 and 3:
5. In this suit based on tortious liability, the plaintiffs contend that
they have right of way over an open space in front of suit premises and
the illegal acts of defendant no. 1 are causing interference with the said
enjoyment of the open space and therefore, the plaintiffs are
-- 4 of 8 --
5 NM no. 624-18 in L.C.SUIT no.423-18
constrained to file the instant suit for removal of encroachment made by
the defendant no. 1. It is their case that they are occupants of a plot of
land known as no. G210 admeasuring about 1000 sq. ft. and the same
includes an open portion. However, the plaintiffs have not tendered any
document in support of their contention that they are owners of the
open space also along with residential premises (suit premises). Mere
averment in that regard is insufficient to establish their ownership over
the open portion. There is nothing on record produced by either parties
to point out whether the said open space belongs to an individual or
defendant no. 2 MCGM or Government of Maharashtra. In this
backdrop, there is no material on record suggesting ownership right of
the plaintiffs over the said open space in front of their suit premises.
6. In paragraph no. 9 of the plaint, it is mentioned that the
defendant no. 1 had earlier made encroachment in the open space
before 34 years and thereby constructed bathroom with staircase and
additional room. It means the alleged encroachment had started before
34 years but the plaintiffs did not come before the Court at the earliest.
This delay in coming before the Court also disentitles them of
discretionary relief of injunction.
-- 5 of 8 --
6 NM no. 624-18 in L.C.SUIT no.423-18
7. From the plaint allegation it can be seen that on one side the
plaintiffs are claiming that the defendant no. 1 is making encroachment
upon the open space belongs to them and on the other side, there are
saying that they have right of ingress and egress to approach their suit
premises through the said open space. It means the plaintiffs themselves
are not clear about their stand as to whether they are owners or they
have easement right over the open space. For all above reasons the
plaintiffs have failed to prove that they have right over the open space
in front of their suit premises.
8. The plaintiffs have alleged that in last week of January 2018
defendant no. 1 started encroachment upon the open space in front of
their suit premises by constructing brick masonry wall and pakka
staircase. The defendant no. 1 has assailed this allegation on the ground
that in last week of January 2018 defendant no. 1 was visiting hospital
for cataract operation and he has filed documentary evidence
supporting this fact. In such circumstances, it is difficult to believe story
of the plaintiffs that the defendant no. 1 made encroachment in open
space in last week of January 2018. For all the aforesaid reasons, points
no. 1 to 3 are answered in the negative and the following order is
passed:
-- 6 of 8 --
7 NM no. 624-18 in L.C.SUIT no.423-18
ORDER
1. Notice of Motion no.624 of 2018 is dismissed.
sd/
(C. V. Marathe)
Judge,
Date : 12.06.2019 City Civil Court, Gr. Mumbai.
Dictated on : 12.06.2019
Transcribed on : 12.06.2019
Signed by HHJ on : 13.06.2019
-- 7 of 8 --
8 NM no. 624-18 in L.C.SUIT no.423-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 14.06.2019 at 10.23 a.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
12/06/2019
JUDGMENT/ORDER signed by
P.O. on
13/06/2019
JUDGMENT/ORDER uploaded
on
14/06/2019
-- 8 of 8 --