Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 1219 of 2019, in Suit no.400 of 2019
MHCC010031392019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.1219 OF 2019
IN
S.C. SUIT NO.400 OF 2019
Shri. Sanket Sadanand Borkar. Plaintiff.
V/s
Shri. Pramod Anant Chavan & Anr. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 17TH DAY OF DECEMBER, 2022
: Appearances:
The learned Adv. Mr. D.K. Raje for plaintiff.
None appeared for defendants.
ORAL ORDER
The plaintiff has taken out present Notice of Motion for
claiming reliefs inter alia, defendants be restrained from entering into
suit premises.
2. In short, it is contention of the plaintiff that, he is the
absolute owner and in possession of Room No.602, AWing, Star Mall
Building, Ganesh Peth Lane, N.C. Kelkar Road, Near Shivaji Mandir,
Dadar, Mumbai 400 028 (hereinafter refered to as ‘Suit property’). He
is residing along with his family in the suit property. Jayshree Eknath
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Chavan is his aunt. Defendants are the relatives of said Jayshree
Chavan. Defendant No.1 is the step nephew (Husband's step brother's
son). The defendant No.2 is wife of defendant No.1.
3. It is further contention of the plaintiff that, he was
brought to Bombay by her aunt Jayshree Chavan in September 2008
to stay with her and to take care of her. Defendant No.1 with
intention to grab the suit premises and thereby to remove the plaintiff
out of the suit premises filed S.C. Suit No.1833 of 2011 before the
City Civil Court, Bombay. However said suit came to be dismissed on
merit on 30.08.2011. The defendant no.1 has not challenged said
judgment dated 30.08.2011 till date. The plaintiff was looking after
and taking day today care of his aunt. Being satisfied with the
services of the plaintiff and towards love and affection of the plaintiff,
Jayshree Chavan had gifted the suit property to him vide registered
Gift Deed on 26.04.2013 bearing registration No.BBE32007 of 2013.
Thus in view of registered Gift Deed, the plaintiff became absolute
owner of the suit property. Thereafter defendants started to raise
quarrel with the plaintiff. Therefore the plaintiff has filed a complaint
against defendants with Shivaji Park police station on 16.11.2018.
The plaintiff contended that inspite of resolving the complaint filed
before office of Maharashtra State Commission for Women
defendants have not stopped from coming to the suit premises.
Therefore the plaintiff has lodged N.C. complaint on 26.12.2018
against defendants with Shivaji Park police station, but of no use.
Police informed the plaintiff to approach Civil Court to exhaust his
remedies against defendants. Hence the plaintiff has constrained to
file present suit and Notice of Motion.
4. Defendants strongly opposed Notice of Motion by filing
reply on affidavit. It is contended that Notice of Motion taken out by
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the plaintiff is frivolous, misconceived and bad in law. The plaintiff is
not entitled for reliefs claimed as he approached the court by
suppressing material facts. It is contended that, the plaintiff has no
right, title and interest in the suit property. Therefore Notice of
Motion is liable to be dismissed.
5. The plaintiff has filed rejoinder and denied all adverse
allegations. It is contended that in view of registered Gift Deed
executed by aunt Jayshree Chavan, he became owner of the suit
property. Defendants having no right, title and interest in the suit
property trying to disturb the possession of the plaintiff over the suit
property, hence Notice of Motion may kindly be allowed.
6. Heard learned advocate for the plaintiff. None appeared
for defendants when called repeatedly. Perused the record.
7. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether the plaintiff has made out a
prima facie case in his favour? Yes
2 Whether the balance of convenience
lies in favour of the plaintiff?
Yes
3 If temporary injunction refuses then
who will suffer irreparable loss?
Plaintiff.
4 What order? As per final order.
REASONS
AS TO POINT Nos.1 TO 3:
8. It is case of the plaintiff that, suit property was of
ownership of his aunt Jayshree Chavan. In the year 2008, his aunt
Jayshree Chavan brought the plaintiff to the suit property to look
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after her. Thereafter the plaintiff has taken care of her aunt Jayshree
Chavan and she out of love and affection executed Gift Deed in his
favour on 26.04.2013. Thus by virtue of registered Gift Deed dated
26.04.2013, he became the owner of the suit premises. To
substantiate this fact the plaintiff has filed a photo copy of Gift Deed.
9. It is to be seen that, defendant No.1 has instituted S.C.
Suit No.1833/2011 against the plaintiff to remove him from the suit
premises. Defendant No.1 also sought relief of declaration to declare
that the plaintiff is in unauthorized occupation being trespasser of the
suit premises. The said suit came to be dismissed on merit on
30.08.2011. The plaintiff has filed copy of judgment dated
30.08.2011 passed by the City Civil Court, Bombay in S.C. Suit
No.1833/2011 wherein the City Civil Court, Greater Bombay
recorded answer to Issue No.1 and 2 in negative, which reads as
follows:
1. Does plaintiff (defendant No.1 in present suit) prove that
defendant No.1 (plaintiff in present suit) is an unauthorized
occupant/trespasser of the suit premises?
2. Does plaintiff (defendant No.1 in the present suit) prove that
he is entitled to the egress and ingress to the suit premises?
10. The City Civil Court also held Jayshree Chavan as sole
owner of the suit premises. It is submitted that said judgment is not
challenged by the defendant. Thus, in view of the findings recorded
by the City Civil Court, Greater Bombay in S.C. Suit No.1833/2011 it
reveals that Jayshree Chavan was sole owner of the suit premises. It
further reveals that she has gifted suit premises to the plaintiff. Thus
prima facie the plaintiff has proved that he being the owner of the
suit premises is in possession of it. Therefore defendant No.1 has no
right, title and interest to interfere with the possession of the plaintiff
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over the suit premises. The needle of balance of convenience tilt in
favour of the plaintiff. If temporary injunction refused then naturally
it is the plaintiff who will suffer irreparable loss. Therefore my answer
to Point Nos.1 to 3 is in affirmative.
AS TO POINT NO.4:
11. In view of my above discussion, I pass following order.
ORDER
1. Notice of Motion no.1219/2019 stands allowed and
made absolute in terms of prayer clause (a).
2. Notice of Motion stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 17.12.2022 (C.R. No.1)
Dictated on : 17.12.2022
Transcribed on : 19.12.2022
checked and Signed on : 22.12.2022
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6 Ord. in NM no 1219 of 2019, in Suit no.400 of 2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 22.12.2022 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 3.30 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 17.12.2022
JUDGMENT/ORDER signed by P.O. on 22.12.2022
JUDGEMENT/ORDER uploaded on 22.12.2022
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