Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.641 of 2018
MHCC010024472018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.641 OF 2018
IN
S.C. SUIT NO. 29 OF 2018
Shivaji Dhondu Shetye … Plaintiff.
Versus
Panduranga Dhondu Shetye
and Others … Defendants
CORAM : HER HONOUR JUDGE
SMT. H. C. SHENDE
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 16th MARCH, 2026
Appearance :-
Ld. Adv Dahibawkar for plaintiff.
Ld. Adv. Vikramjit Kori for Defendants Nos.1 to 3.
O R D E R
The present Notice of Motion is taken out by the plaintiff
seeking interim reliefs viz., to restrain defendant Nos.1 to 3 from
creating any third party right interest in the suit property ; to restrain
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them from obstructing the plaintiff from entering and accessing the suit
premises; to direct defendant Nos.1 to 3 to pay compensation of
Rs.6,250/- per month to the plaintiff and to restrain defendant No.4 the
Rajhans Co-Operative Society from making any changes in the property
records or entraining any application of the defendant No.1 for dealing
with the suit property during pendency of the suit.
2. The case of plaintiff is that, Late Shri. Dhondu Bala Shetye
father of plaintiff and defendant Nos.1 to 3 had purchase Flat No.A/8
admeasuring 450 sq. feet in Rajhans Co-operatuve Housing Society,
Vishwakaram Nagar, Mulund (West) from his own earnings.
It is further contended that, Shri. Dhonu Shetye died
intested on 02.05.1990 and his wife Smt. Savitribai died on 04.01.2011
leaving behind the plaintiff and defendant Nos.1 to 3 as their only legal
heirs. According to the plaintiff, after the marriage of defendant No.1,
he was permitted to reside in the suit premises. Considering the
expansion of his family.
It is further submitted that, plaintiff and other family
members were earlier residing in Sultan Suleman Chawl, which was
later re-developed and defendant No.2 has since occupy a new premises
in Suyash Building. The plaintiffs claims that, the suit property is self
acquired property of their father devolved equally upon all the legal
heirs. However, the defendant No.1 avoided giving the plaintiff his
shares and has obstructed to access to the suit premises, thereby,
necessitated filing of the present suit and the present Notice of Motion.
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3. The defendant No.1 filed reply and opposed the present
Notice of Motion.
It is contended by the defendant that, the suit property
exclusively belong to the defendant No.1 and during his life time, the
father had transferred the said flat in favour of the defendant No.1.
Further according to the defendant No.1, the suit flat was purchased
from his own income and father has executed the transfer form in his
favour, a copy of which is produced by him along with written
statement.
It is further contended by the defendant that, the plaintiff
had given Room No.3 in Shiv Krupa Chawl at Bhandup as a gift. The
entire consideration was paid by defendant No.1. The plaintiff allegedly
sold the said room of Bhandup in 1991 and thereafter, purchased the
flat No.8/2 in Jai Santoshi Apartment, Kalyan East, Dist-Thane. On this
ground, the defendant No.1 contended that, the plaintiff has no right in
the suit property and the Notice of Motion deserves to be dismissed.
4. The plaintiff by way of rejoinder denied the said allegations
and contended that, the flat at Kalyan was purchased by him by availing
loan from the Mazgaon Dock Ltd., and room at Bhandup was purchased
from his own income. The plaintiff has denied that, the suit property
was purchased by defendant No.1 or that, it was validly transfer to him.
5. Heard both sides. Perused record.
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6. The principal question that arises for consideration at this
stage is whether the plaintiff has made out a prima facie case for grant
of interim reliefs?
7. The material placed on record shows that, the suit property
originally stood in the name of Shri. Dhondu Bala Shetye. The plaintiff
claims succession rights as one of the legal heirs after the demise of
parents. Defendant No.1 on the other hand claims exclusive ownership
on the basis that, the property was purchased from his own income and
transfer in his name during the life time of the father. The validity and
effect of the alleged transfer form relied upon by the defendant No.1 is
the matter of dispute which requires a details evidence and cannot be
conclusively determined at the stage of interlocutory proceedings.
8. Prima-facie therefore, the question whether the suit
property forms part of estate of deceased father or whether it
exclusively belongs to defendant No.1 is a disputed issue which will
have to be decided after trial. In such circumstances, if defendant Nos.1
to 3 are permitted to create third party rights in suit property then it
will result into multiplicity of the proceedings and may prejudice
seriously the rights claimed by the plaintiff in the suit.
9. However, as regards, the relief seeking access to the suit
property and payment of compensation of Rs.6,250/- per month to the
plaintiff is concerned, the court of is view that, the plaintiff has not
produced sufficient material to establish that, he is presently in joint
possession of the property or that, he has been wrongfully dis-possess
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from the suit premises, that, the alleged possession of defendant is
invalid or against the rules of any law, so as to justify granting of
mandatory or monetary relief at this interlocutory stage, in favour of
the plaintiff.
10. The balance of convenience therefore lies in preserving the
suit property in the present condition until the rights of the parties as
alleged by them in the suit property are finally adjudicated. Granting a
limited injunction restraining further alienation would protect the
subject matter of the suit without causing undue prejudice to any of the
parties. Hence, in the circumstances and for the reason, this Court
proceed to pass following order :-
O R D E R
1. Notice Motion No.641 of 2018 in suit No.29 of 2018 is
partly allowed.
2. The defendant Nos.1 to 3 or any persong acting for and on
their behalf are restrained from creating any third party
rights, alienating, transferring or parting with posession of
suit Flat No.A/8, admeasuring 450 sq.ft., situated at
Rajhans Co-Op Housing Society, Vishwakarma Nagar,
Mulund (West), Mumbai till final disposal of the suit.
3. The defendant No.4 directed not to effect any transfer or
change in its record in respect of suit premises (detailed
mentioned above) on the basis of any request / application
made by the Defendant Nos.1 to 3 during pendency of the
suit.
4. The rest prayers i.e. to allow plaintiff to enter in suit
premises, to pay monthly compensation are rejected.
5. Parties to bear their own cost.
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6. Proceeding of Notice of Motion No.641 of 2018 in S.C. Suit
No.29 of 2018 is closed.
Date : 16.03.2026 (H. C. Shende )
Judge,
City Civil Court, Gr. Bombay.
Direct typed on : 16.03.2026
Corrected on : 17.03.2026
Signed on : 17.03.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.03.2026 at 05.05 pm (Ashok Sudhakar Patil)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. H. C. Shende (C.R.No.65)
Date of Pronouncement of
JUDGMENT/ORDER
16.03.2026
JUDGMENT/ORDER signed by
P.O.on
17.03.2026
JUDGMENT/ORDER uploaded on 17.03.2026
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