Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM 1010-20 in Suit 429-20
MHCC010028102020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1010 OF 2020
IN
S. C. SUIT NO.429 OF 2020
Sunil Omprakash Agrawal ]
of Mumbai, Indian Inhabitant, ]
R/a. Flat No.6-A, Prem Kutir, ]
177, Marine Drive, ]
Mumbai-400 020. ]... Plaintiff
Versus
1. Rohit S. Thakkar, ]
The Secretary of Mulund ]
Sejal Co-op. Hsg. Society Ltd]
AND
Smt. Kokila M. Joshi, ]
The Chairman of Mulund ]
Sejal Co-op.Hsg. Society Ltd.]
2. Mulund Sejal Co-op. Hsg. ]
Society Ltd., a society ]
registered under provisions ]
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of Maharashtra Co-operative]
Societies Act under ]
Registration No.BOM/GEN- ]
855 of 1975 and having its ]
registered office at Plot ]
No,1084, Devi Dayal Road, ]
Mulund (West), Mumbai-80.]... Defendants.
Appearance :-
Ld. Adv. Ramesh Jain for plaintiff.
Ld. Adv. Ankush Jain for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 27/02/2024 & 01/03/2024
ORDER
The present notice of motion is taken out by the plaintiff
for claiming the relief inter alia;
(a) The defendant No 2 and 3 and all persons claiming through them
be restrained by an order of the injunction from disturbing, interfering
with the exclusive use and occupation possession an enjoyment of the
suit land viz. Piece and Parcel of land bearing Plot No.1084, Survey No.
1000 (part), CTS No.1054/1 admeasuring 77.38 Square Yards i.e.64.70.
square meters or thereabouts as per Property Card, lying and being on
Devidayai Road, Mulund West, Mumbai-400 080. (hereinafter referred
as suit property).
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(b) That pending the disposal of the operation Notice of motion
operation and effect of the Unilateral Conveyance.
(c) That pending disposal of the notice of motion the defendant
Nos.1 and 2 be restrained by an order of injunction from claiming in
any manner and or using or taking any benefit and under or on the
basis of the Unilateral Conveyance.
(d) That pending of the notice of the motion, the defendant No.1 and
2 be directed to deposit a sum of the Rs.6,00,000/- and further sum of
Rs. 1,50,000/- per month form the date of the suit till the defendant
No.1 and 2 give up their right in the suit land and permit the defendant
No.1 an2 gives up their rights in the suit land and permit the plaintiff to
withdraw the same on the such terms as may be fix by the Court.
(e) Costs of the notice of motion.
2. The plaintiff has contended in affidavit in support that in
the suit, he has challenged the legality and validity of the unilateral
conveyance dated 12.07.2018 executed by the defendant No.1 and 2 in
respect of the suit property. It is further contended that the plaintiff has
not entered into an agreement to sale with the defendants in respect of
the suit property. According to the plaintiff, the defendant No.1 and 2
without the consent or knowledge of the plaintiff, moved an application
under section 11(2) read with Order 5-A of the MOFA Act for obtaining
the certificate of the deemed conveyance for the suit property
admeasuring are 64.70 sq.mtrs. It is further contention of the plaintiff
that on 23.02.2016, District Deputy Registrar has passed an order for
issuance of the certificate in respect of the execution and registration of
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the deemed conveyance in respect of the suit property. Accordingly, the
defendant No.1 and 2 have executed and registered the deemed
unilateral conveyance on 12.07.2018 and thereafter applied to
Tahsildar, Kurla to transfer the suit land in the name of the defendant
No.2. It is further contended that the plaintiff has taken objection in the
said proceeding, but Tahsildar Kurla has rejected the objection taken by
the plaintiff and confirmed the mutation entry No.5377 in respect of the
suit property.
3. It is also contended that that plaintiff has transferred only
land admeasuring area 1063.30 and not the suit property and due to
which the defendants are not entitled to the suit property on the ground
that, it was part of the larger plot of the land admeasuring 1668 sq. mt.
of which only admeasuring 1603.30 sq. mt was conveyed to the
defendants. Hence, this motion.
4. The defendant No.2 has opposed the motion by filing
affidavit in reply on the ground that this court has no jurisdiction to try
the present suit. It is submitted that the suit is barred by limitation as
order of unilateral conveyance was passed on 23.02.2016 by the
competent authority and suit has not filed within 3 years. It is further
submitted that the unilateral deemed conveyance was executed and
registered as per the order of the competent authority and on that basis,
Tahsildar Kurla has taken mutation entry in the revenue record. It is
also submitted that Tahsildar Kurla has rejected the objection taken by
the plaintiff and confirmed the mutation entry No.5377. According to
the defendants, the competent authority by completing all the
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formalities and by complying the legal requirements, has rightly passed
an order dated 23.02.2016 for deemed conveyance. It is the case of the
defendants that the plaintiff has duly conveyed the suit land
admeasuring area of 1668 sq. mt. but due to the over sight the area of
the suit property remained to be included in the Original Conveyance
dated 22.01.1976. Due to the clear understanding between the parties,
the possession of the suit property was handed over to the defendant
No.2 society under the said conveyance of the year 1976.
5. According to the defendants, the order dated 23.02.2016,
for the unilateral deemed conveyance has been passed after giving due
and sufficient notices to the concerned persons and the plaintiff on their
last known address mentioned in the conveyance dated 22.01.1976, by
the said competent authority prior passing the order. It is further
submitted that the suit property has been duly and lawfully transferred
in the name of the defendant No.2 society pursuant to the order dated
23.02.2016 by the competent authority. It is also submitted that the suit
is barred by limitation and the plaint needs to be rejected under Order
VII rule 11 (d) of the CPC.
6. It is the submission of the defendant that the plaintiff has
conveyed the suit property in the year 1976 and thus the same is in the
possession of the defendant since year 1978. According to the
defendant, the plaintiff has been called upon on number of occasions to
execute the conveyance in respect of the suit property. The defendant
No.2 society is in actual possession of the suit property. Thus, according
to the defendant the plaintiff has not made out any prima facie case and
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not entitled for any relief. On all these grounds, the defendants prayed
to dismiss the motion.
7. The plaintiff and the defendants have filed the written
notes of argument of the notice of the motion. I have perused the notice
of motion, reply of the defendants, rejoinder filed by the plaintiff and
notes of the arguments.
8. From the copy of the registered conveyance deed dated
22.01.76, prima facie, it appears that the plaintiff had sold, conveyed
and transferred the area admeasuring area of 1600.30 sq. mt. out of the
Plot No.1084 to the defendant No.2 society.
9. It is the case of the defendants that the plaintiff has duly
conveyed the suit land admeasuring area of 1668 sq. mt. but due to the
over sight the area of the suit property remained to be included in the
Original Conveyance dated 22.01.1976. So far as this contention is
concerned, the defendant No.2 never issued any notice or letter to the
plaintiff to that effect and did not call upon the plaintiff to make the
necessary correction in respect of the area mentioned in the conveyance
deed dated 22.01.1976.
10. From the order dated 23.02.2016 passed by the competent
authority in respect of the issuance of certificate for unilateral
conveyance deed, it can be gathered that the plaintiff did not contest
the said proceedings. According to the plaintiff, the notice was issued on
his old address mentioned in the conveyance deed. The plaintiff is not
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residing on the said address. It is also seen that after executing the
unilateral conveyance deed, when the plaintiff has taken objection in
respect of the proceeding of the mutation entry before, Tahsildar, Kurla.
The said objection was rejected and mutation entry was confirmed.
11. It is pertinent to note that the defendants have not placed
on record anything to show that the suit property has been conveyed to
it under a registered document. On the contrary, the record indicates
that without getting conveyance deed from the plaintiff in respect of the
suit property, the defendants have obtained certificate for unilateral
conveyance deed. Thus, the order passed by the competent authority
and the execution of the deemed unilateral conveyance deed
dated12.07.2018 prima facie appear to be done without the knowledge
and consent of the plaintiff.
12. In view of the aforesaid reason, I reached to the conclusion
that the plaintiff has made out a prima facie case. The balance of
convenience also lies in the favour of the plaintiff. Under these
circumstances, if the effect and operation of the unilateral conveyance
deed is not stayed pending the hearing and the final disposal of the
present suit, the possibility of creating, the third party interest in the
suit property cannot be ruled out. It is also necessary to restrain the
defendants and all persons claiming through them from disturbing the
exclusive use, possession and enjoyment of the suit property.
13. Therefore, in order to preserve the subject matter of the
suit property and to avoid the multiplicity of the proceedings, to my
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mind, it is necessary to allow the prayer clauses (a) to (c) only.
Accordingly, I proceed to pass following order;-
ORDER
1. The Notice of Motion No.1010 of 2020 is partly allowed in
terms of prayer clause (a) to (c) only.
2. No order as to costs.
3. Notice of Motion No. 1010 of 2020 disposed off accordingly.
(Smt. Anita B. Sharma,)
Judge,
City Civil Court, Greater Bombay
Dated : 01/03/2024 C.R. No.03
Dictated on : 27/02/2024 & 01/03/2024
Typed on : 05/03/2024
Signed on : 06/03/2024
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“Certified to be true and correct copy of the original signed order”.
06/03/2024
at about p.m. :
(Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Bombay
Name of the Hon'ble Judge : Smt. Anita B. Sharma,
Judge, Bombay City Civil Court &
Addl. Sessions Judge,
Court Room No.03, Gr. Bombay
Date of pronouncement of
Order
: 27/02/2024 & 01/03/2024
Order signed by Hon'ble Judge
on
: 06/03/2024
Order uploaded on : 06/03/2024
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