Order 2

Order Details: Copy of Judgment
Pdf Text: Judgment (Exh.16) Suit No.572/2018
MHCC010025232018 Presented on : 17.02.2018
Registered on : 23.02.2018
Decided on : 09.01.2026
Duration : 07 10 17
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY, AT
BOMBAY
SHORT CAUSE SUIT NO. 572/2018
(CNR NO. MHCC010025232018)
Mrs. Sadaf Rajib Shaikh
Age: 38 years, Occupation: Teacher
Adult Indian Inhabitant,
residing at K.G.N. Society, “A” Wing, 4th floor,
Flat No. 406, Imaamwada Road, Mumbai -
400009. … Plaintiff
Versus
1 Ms. Khushnuma Shamshad Ali Khan
Age: 36 years, Occupation: Event Manager
Adult Indian Inhabitant,
residing at Adarsh Nagar, 1st Floor, Room No.
104, Alibhai Premji Marg, Opp. Hilla Heights,
Grant Road (East), Mumbai - 400007.
2 Ms. Simin Shamshad Ali Khan
Age: 35 years, Occupation: Event Manager
Adult Indian Inhabitant,
residing at Adarsh Nagar, 1st Floor, Room No.
104, Alibhai Premji Marg, Opp. Hilla Heights,
Grant Road (East), Mumbai - 400007.
3 Mohammad Mohsin Ali Khan
Age: 28 years, Business: (Hukkah Parlour)
Adult Indian Inhabitant,
residing at Adarsh Nagar, 1st Floor, Room No.
104, Alibhai Premji Marg, Opp. Hilla Heights,
Grant Road (East), Mumbai - 400007. … Defendants
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Judgment 2 Suit No.572/2018
CORAM : HIS HONOUR JUDGE, A. C. DAGA
COURT ROOM NO. 62
DATE : 09.01.2026
Appearances: -
Adv. A. H. Khatri for Plaintiff.
Adv. Sachin Bandkar for Defendants.
JUDGMENT
(Dictated and pronounced in open Court)
Facts in brief are as follows: -
Instant Suit is filed by the Plaintiff for partition, separate
possession of the suit property by metes and bounds, directing the
Defendants to hand over the belongings of the Plaintiff as mentioned in
the plaint restraining the Defendants from creating third-party rights in
the suit property.
2. It is pleaded in the plaint that the parents of the Plaintiff
and Defendants were entitled to the suit properties:
I. Adarsh Nagar, 1st Floor, Room No.104, Alibhai Premji Marg,
Opp. Hilla Heights, Grant Road (East), Mumbai - 400007.
II. Niamat Manzil, Room No.3/A, First floor, New Petit Street,
Grant Road (East), Mumbai - 400007.
III. Shop adjacent to ALFRED THEATER, Mumbai - 400008, Shop
No.1, Alfred Cinema Building, Khetwadi, 10th Lane, Mumbai -
400008.
IV. Shop No.62, Indira market, Station Road, Bhayander (West)
Thane - 400008.
V. Jewellery and Gold ornaments i.e. 8 earnings, 6 gents rings, 3
ladies rings, 1 Mangalsutra, 2 Silver Set, 3 necklace, 1 real
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Judgment 3 Suit No.572/2018
diamond pendent, 6 pairs of payal, 6 branded watches
3. The parents of the Plaintiff and Defendants died intestate.
The Plaintiff and Defendants are the only legal heirs. The Plaintiff
demanded a share in the properties left by her parents. The Defendants
have given false assurances that they shall dispose of all the properties
and given her share from the properties. Defendants have created a
third party right by way of Leave and License Agreement and are solely
enjoying the huge compensation derived from the properties.
4. It is further pleaded in the plaint that, when the Plaintiff
visited her parents house, the Defendant asked her not to give share
and have also refused to give her belongings as mentioned in paragraph
No.6 of the plaint. Thereafter, complaints were made. Notice was
issued, but of no use. Hence, the suit.
5. Defendants No.1 to 3 have contested the Suit by filing a
Written Statement (Exh.3). Defendants have admitted their relationship
with the Plaintiff. Defendants have admitted that their parents died
intestate. Defendants further pleaded that suit properties are rented
properties, therefore, they are not capable of division or partition.
Defendants claimed that they are holding possession of the suit
properties. Defendants further pleaded that the landlord had not been
joined as a party to the proceedings, therefore, a suit is not tenable.
Defendants further pleaded that as the suit properties are rented or
tenanted properties, therefore, they cannot be sold, neither title of said
properties are directly in the names of the father and mother of Plaintiff
and Defendants. Defendants have denied custody of any movables of
the Plaintiff which Plaintiff has pleaded in Paragraph No.6 of the plaint.
Defendants have prayed for dismissal of the suit.
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Judgment 4 Suit No.572/2018
6. Considering rival pleadings of the parties, my Ld.
Predecessor Ajit N. Mare framed Issues at (Exh.4) and I have recorded
my findings thereon with reasons as under: -
Sr.
No. Issues Findings
1 Does the plaintiff prove that her parents were
entitled to the suit properties as alleged? :: In the
negative.
2 Does she prove that she has 1/5th share in the
suit properties? :: In the
negative.
3 Does she prove that the defendants have
created third party rights in some of the suit
properties and are earning from the same? ::
In the
negative.
4 Does she prove that defendants are trying to
transfer or sell the suit properties? :: In the
negative.
5 Does she prove that defendants are in
possession of the documents and articles
mentioned in paragraph 18 of the plaint?
:: Partly in the
affirmative.
6 Is she entitled to the relief sought? :: Partly in
affirmative.
7 What Order and Decree? :: Suit is partly
decreed as per
final Order.
REASONS
As to Issue No.1: -
7. To prove her case, the Plaintiff examined herself vide
(Exh.5) and closed her side. Defendants have not cross-examined the
Plaintiff. As such, the examination in chief of the Plaintiff has gone
unchallenged. Plaintiff, during her evidence, has proved the documents
(Exhibits 7 and 8) are letters addressed by the Advocate for Plaintiff to
the MHADA, etc. and to the Defendants. Defendants did not lead any
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Judgment 5 Suit No.572/2018
evidence and their evidence was closed.
8. Heard both sides. The ld. Advocate for the Plaintiff, during
arguments, submitted that the Plaintiff has a 20% share, i.e. 1/5th share
in the suit properties. Though Defendants assured, but have not given
it. The ld. Advocate for the Plaintiff also submitted that the Defendants
have given suit properties on Leave and License and got huge
compensation. He has also submitted that the oral evidence of the
Plaintiff has gone unchallenged. Hence prayed for decreeing the suit.
He has also filed Written Arguments in support to his pleadings and
raised the same points as have been pleaded in the plaint.
9. During arguments, the ld. Advocate for Plaintiff has relied
upon the Judgment in the matter of ‘Arun Bhaskar Adarkar Vs. Mrs.
Mina Srinivasan Krishnan and Another, from Suit No.1173/2011 with
Notice of Motion No.1548/2011’ and ‘Mrs. Shahida Sharriff and Others
Vs. Amanullah and Another, from Appeal from Order No.1369/2010
with Civil Application No.1690/2010 and 355/2012’. I have carefully
gone through the said Judgments. The Hon’ble Bombay High Court, in
the matter of Arun cited supra, has specifically held that, “it is settled
that all the legal heirs of the deceased, unless accepted and/or treated
by the landlord, cannot claim tenancy over the flat. Therefore, as there
is a dispute between the heirs of the tenant with regard to the
possession or occupation rights in full or in part …..” In that matter,
there was a dispute between the heirs of the tenant regarding
possession or occupation rights. Therefore, the Hon’ble High Court has
held that the Civil Court has jurisdiction.
10. The ld. Advocate for Defendants submitted that as the
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Judgment 6 Suit No.572/2018
properties are tenanted properties, therefore, same cannot be
partitioned, sold and has prayed for dismissal of the suit.
11. I have carefully gone through the entire record. No doubt,
that the evidence of P.W.-1 has gone unchallenged during cross-
examination. It is the settled position of law that the Plaintiff has to
stand or fall on her own legs. The burden of proving the issues had been
casted on the Plaintiff. Now, it has to be seen whether there is ample
evidence on record which goes to show that the Plaintiff has discharged
her burden.
12. It is pleaded in the plaint that the parents of the parties
were entitled to the suit properties. Nowhere in the plaint it is pleaded
that the parents of the parties were tenants of the suit properties. It
appears that just to hide the true fact that the suit properties are rented
properties of the parents of parties. Such pleadings were avoided.
13. It is the claim of the Plaintiff that she is having 1/5th share
in the suit property and she has prayed for partition and separate
possession and if that is not possible, then to sell the suit property and
to give her share from the sale consideration received. When such a
plea has been raised by the Plaintiff, then there is a presumption that it
is the case of the Plaintiff that the suit is property owned by her parents.
It was for the Plaintiff to establish on record that the suit property was
owned by her parents. Except oral words of the Plaintiff not a single
document on record which goes to justify oral words of the Plaintiff
about the status of the suit property.
14. It was expected from the Plaintiff to lead best evidence.
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Judgment 7 Suit No.572/2018
Considering the facts of the matter, it was expected from the Plaintiff to
file on record documents showing ownership of the parents of the
Plaintiff regarding the suit property. Not a single document is filed on
record. Therefore, the Plaintiff miserably failed to prove that her
parents were entitled for the suit property. Accordingly, I answer Issue
No.1 in the negative.
As to Issue No.2: -
15. I have answered Issue No.1 in the negative and while
deciding Issue, No.1 has also concluded that the Plaintiff failed to prove
that the suit properties were owned by her parents. The defence is
raised that the suit properties are rented properties not capable of being
partitioned. Though such a defence is raised, no evidence was led by
Defendants to establish it. It is important to note that at the time of
valuation of the suit, the Plaintiff had valued it, using multiplier of the
rent of the property. This itself goes to indicate that the suit properties
are rented properties, otherwise the valuation would have been on the
basis of the market value of the properties and not on the basis of the
monthly rent of the property.
16. The document (Exh.7), which is the notice issued by the ld.
Advocate for Plaintiff, addressed to various authorities. On page 3 of the
said notice, it is mentioned that “if about these properties any-body
approached for any kind of transfer of Rent, Bill.” This itself goes to
reflect that the suit properties are rented properties and therefore, only
the Plaintiff by way of the notice (Exh.7) has requested the authorities
that if someone approaches for transfer of rent, bill then the Plaintiff is
objecting for it. This indicates that the suit properties are rented
properties, therefore same are not capable of being partitioned. I have
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Judgment 8 Suit No.572/2018
already said that the suit is not for possession or occupation rights in
full or part. Therefore, the Plaintiff failed to prove that he has 1/5th
share in the suit properties. Accordingly, I answer Issue No.2 in the
negative.
As to Issues No.3 and 4: -
17. It is the claim of the Plaintiff that the Defendants have
created third-party rights in some of the suit properties and are earning
from the same. Except bare statement, during the evidence, the Plaintiff
did not lead any evidence justifying such a statement. It was for the
Plaintiff to lead the best evidence showing with whom Defendants have
entered into Leave and License, what is the rent Defendants are getting.
No such evidence was led by the Plaintiff. As such, for want of best
evidence, I answer Issues No.3 and 4 in the negative.
As to Issue No.5: -
18. It is the claim of the Plaintiff that the Defendants are in
possession of the documents and articles as given in paragraph No.6 of
the plaint. In the Evidence Affidavit, the Plaintiff has stated so and has
added certain jewellery to the list. Though whole evidence of the
Plaintiff has gone unchallenged, again, it was for the Plaintiff to lead
best available evidence to show that she owned all the Gold ornaments
as given in the plaint. It was for the Plaintiff to show that her parents
were having Gold ornaments as claimed by her. It was for her to show
that she was having Utensils, 3 Branded watches, a Refrigerator and
Washing machine as had been claimed by her. Not a single document
has been filed by the Plaintiff on record to justify her ownership / or
that of her parents. Therefore, she is not entitled to get the jewellery,
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Judgment 9 Suit No.572/2018
Utensils, Watches, Refrigerator and Washing machine as claimed by her.
19. So far as the educational certificates are concerned, the
Defendants can be directed to hand over it to the Plaintiff, if same are in
custody, else file an Affidavit intimating that such documents are not in
their custody. Accordingly, I answer Issue No.5 partly in the affirmative.
As to Issue No.6: -
20. Having answered all the Issues in sum and substance, the
Plaintiff is not entitled for relief of partition, separate possession,
injunction, return of the utensils, branded watches, refrigerator and
washing machine, etc. The Plaintiff is only entitled to the return of the
educational documents, if they are in the custody of the Defendants,
else Defendants are required to file Affidavit stating that same are not in
their custody. As such, I answer Issue No.6 partly in affirmative.
Accordingly, I pass the following Order: -
ORDER
1. Suit is partly decreed.
2. The Defendants are directed to hand over the Plaintiff's
educational documents to the Plaintiff within 15 days from the
date of this Judgment and if such documents are not in the
custody of the Defendants, then they have to file an Affidavit
stating on oath that the documents are not in the custody of the
Defendants. Such Affidavit is required to be filed within 15 days
from the date of this Judgment.
3. Considering the facts, the parties have to bear their own costs.
4. Decree be drawn accordingly.
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Judgment 10 Suit No.572/2018
5. Accordingly, Short Cause Suit No.572/2018 stands disposed off.
DATE: - 09.01.2026 (A. C. DAGA)
JUDGE, CITY CIVIL COURT,
GR. MUMBAI.
Dictated on : 09.01.2026
Transcribed on : 09.01.2026
Checked on : 09.01.2026
Signed on : 09.01.2026
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
09/01/2026. 5.43 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri A.C.Daga.
(Court Room No.62).
Date of Pronouncement of Judgment/Order 09/01/2026.
Judgment/Order signed by P.O. on 09/01/2026.
Judgment/Order uploaded on 09/01/2026.
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