Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NOTICE OF MOTION NO.1266 OF 2019
MHCC010032752019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1266 OF 2019
IN
SUIT NO.685 OF 2019.
Rajesh Prabhakar Wakkar. ...Plaintiff.
Versus
Avani Manoj Pusalkar and others. ...Defendants.
Appearance:
Adv. Mr. S.S. Redekar for plaintiff.
Adv. Mr. Harish R. Pawar for defendants.
CORAM : HIS HONOUR JUDGE
Anand P. Kanade
COURT NO.2
DATED : 15th March, 2024
ORAL ORDER
Plaintiff has taken out this notice of motion for the relief of
temporary injunction restraining the defendants from causing
interference to his possession over suit property till the final decision of
the suit.
2. In brief plaintiff’s case is as under :
Room no.103, first floor, in building no.10 namely Pancharatna,
Parel Shivsmruti S.R.A. Co-op. Housing Society Limited, Gandhi Nagar,
Dr. E. Moses Road, Worli, Mumbai 400 018, is the subject matter of
present suit (hereinafter referred as ‘suit property’)
-- 1 of 7 --
2 NOTICE OF MOTION NO.1266 OF 2019
3. According to plaintiff, defendant no.1 is his sister and defendant
no.3 and 4 are his real brothers. Defendant no.2 is widow of plaintiff’s
brother Mayur. According to plaintiff his father Prabhakar S. Wakkar
was occupant the premises i.e., Hut No.GSM 26-1/1, Gandhi Nagar, Dr.
E. Moses Road, Worli, Mumbai 18. Plaintiff’s father and plaintiff were
residing in that property and running printing press business from said
property. According to plaintiff that property was gone for
redevelopment in a SRA scheme. According to plaintiff, his father
Prabhakar Sitaram Wakkar was shown as eligible for Residential Cum
Commercial premises. Accordingly the developer has entered into
agreement for permanent alternate accommodation with the plaintiff’s
father and mother. It is the specific case of plaintiff that on 05.03.2005
after completion of new building the society has allotted the suit
property to plaintiff’s father and mother.
4. According to plaintiff his father and plaintiff were running
printing press business from the suit property. Plaintiff’s father and
mother were holding various properties at Baroda and Mumbai.
According to plaintiff, during the life time of plaintiff’s father and
mother there was family arrangement between the parties and
properties were distributed between the family members. Accordingly
one property situated at Baroda was given to defendant no.3 and
another property at Baroda was given to defendant no.4. The father of
plaintiff purchased one premises at Dombivali in the name of Mayur. It
is the specific case of plaintiff that in the family arrangement it was
agreed by the parties that the suit property will come to the share of
plaintiff. Plaintiff father Prabhakar died on 23.09.2009 and plaintiff
mother Pratibha died on 30.01.2010. According to plaintiff, he is
exclusively occupying the suit premises alongwith his family members.
Plaintiff is running printing press from the suit property. Plaintiff is
paying all out going and necessary charges to the concerned authorities
in respect of suit property. According to plaintiff as per family
-- 2 of 7 --
3 NOTICE OF MOTION NO.1266 OF 2019
arrangement between the parties the suit property came to share of
plaintiff and plaintiff is exclusively using and occupying the suit
property. The defendants are threatening and torturing the plaintiff to
hand over the possession of suit property to them. Hence plaintiff to
constrained to file present suit for perpetual injunction. By the present
notice of motion plaintiff is seeking temporary relief of injunction.
According to plaintiff he has prima facie case and balance of
convenience lies in his favour and if the temporary injunction is refused
he will suffer irreparable loss. Hence this notice of motion.
5. Defendants have filed their written statement cum reply and
denied in toto all the material contentions in the plaint. Defendants
denied that the plaintiff is in exclusive possession of the suit property.
Plaintiff has only filed the suit for perpetual injunction and not filed the
suit of declaration. Defendants have admitted relations interse.
Defendants have also admitted that Prabhakar was in possession of hut
no.GSM 26-1/1 and that property was gone for redevelopment and
after completion of new building suit property was given to the
plaintiff’s father Prabhakar. Defendants have specifically denied that
during life time of Prabhakar and Pratibha there was family
arrangement between the family members and suit property was
allotted to the share of plaintiff. According to plaintiff the defendants
are also equally entitled to the share in the suit property and defendants
are co-owners alongwith the plaintiff in respect of the suit property and
therefore the plaintiff cannot oust and restrict the entry of these
defendants in the suit property. According to defendants old premises
was found inconvenient to occupy all the family members, for the sake
of convenience and as per mutual understanding arrived among all the
family members, the plaintiff was allowed to continue to occupy in the
said old premises. According to defendants though the plaintiff is doing
the business in the suit premises, he does not have absolute right over
the suit property and being the co-owners of the suit property, these
-- 3 of 7 --
4 NOTICE OF MOTION NO.1266 OF 2019
defendants are also regularly visiting the suit property. In substance
according to defendants there was no family arrangement as alleged by
the plaintiff and plaintiff is not in exclusively possession of the suit
property. On the contrary, the defendants are co-owners of the suit
property and they have also right in the suit property. On the above
grounds defendants create to reject the notice of motion.
6. Heard both sides. Perused papers on record following point arise
for my determination and I have recorded my findings against them for
the reasons given therein as under.
SR.
NO.
POINTS FINDINGS
1. Does the plaintiff prove that he has
prima facie case ?
In the negative.
2. Whether the balance of convenience
lies in favour of plaintiff ? In the negative.
3. Whether irreparable loss would be
caused to the plaintiff if temporary
injunction is refused ? In the negative.
4. What Order ? As per final order.
REASONS :-
POINT NO. 1 TO 3:-
7. In the present suit it is not disputed that defendant no.1 is the
sister and defendant no.3 and 4 are the real brothers of plaintiff and
defendant no.2 is widow of plaintiff’s brother Mayur. It is also not
disputed that plaintiff’s father died on 23.09.2009 and mother Pratibha
died on 30.01.2010. It is also not disputed that the old premises i.e.,
Hut No.GSM 26-1/1, Gandhi Nagar, Dr. E. Moses Road, Worli, Mumbai
18 was the property of plaintiff’s father Prabhakar and that property
was gone for redevelopment. It is also not much disputed that after re-
development and completion of new building suit property was allotted
-- 4 of 7 --
5 NOTICE OF MOTION NO.1266 OF 2019
to plaintiff’s father and on 05.03.2025 possession of suit property was
given to the father and mother of the plaintiff.
8. To get the relief of temporary injunction plaintiff has to prove
prima facie case lies in his favour and the balance of convenience is also
in his favour. He has also to prove that he would suffer irreparable loss
if the temporary injunction is refused. It is the specific case of the
plaintiff that he is the owner of suit property and he is in exclusive
possession of the suit property. According to plaintiff during the life
time of his parents there was family arrangement. In that family
arrangement suit property was allotted to the share of the plaintiff and
since then he is in possession of the suit property as owner. Defendants
have categorically denied that there was family arrangement as pleaded
by the plaintiff. It is the evident to note that in the present case plaintiff
has not filed anything on record to show that during the life time of the
plaintiff’s parents there was family arrangement and in that family
arrangement the suit property was allotted to the share of the plaintiff.
Considering that aspect, I am of the view that the plaintiff has not prima
facie proved that there was family arrangement and in the family
arrangement the suit property was allotted to his share. No doubt from
the pleading and documents on record it reveals that the plaintiff is
running the printing press in the suit property. But the defendants are
the co-owners of the suit property, hence possession of the plaintiff is
co-extensive with the defendants.
9. After going through the papers on record it reveals that the
electricity bills of the suit property still stands in the name of father of
plaintiff and defendant no. 1,3 and 4. Suit property still stands in the
name of father of plaintiff and defendant no.1,3 and 4 in the record of
society. After going through the papers on record it prima facie appears
that plaintiff and defendant no.1,3 and 4 are co-owners of suit property.
It is well settled law that every co-owner has right of enjoyment and
-- 5 of 7 --
6 NOTICE OF MOTION NO.1266 OF 2019
possession equal to that of other co-owners and he has interest even in
every infinitesimal portion of the property. In other words, the title and
possession of other co-owner is co-extensive with the interest of other
co-owners.
10. It is the specific case of the defendants that they have equal right
in the suit property. The plaintiff has filed this suit simplicitor for
perpetual injunction and not filed the suit for declaration of his title
over the suit property. In my view if the temporary injunction as prayed
is granted, it would become a case of outer of defendants from suit
property and compulsory partition of the suit property.
11. In my view prima facie defendants being the co-owners of suit
property, plaintiff is not entitled for the relief for temporary injunction
as prayed. For the aforesaid reasons I am of the view that plaintiff has
not proved that he has prima facie case and the balance of convenience
lies in his favour. If the temporary injunction is granted as prayed by the
plaintiff defendants as the co-owners of suit property would cause
irreparable loss. In the result, I record my negative findings to point
no.1 to 3 and I am inclined to pass the following order.
ORDER
Notice of Motion No. 1266 of 2019 stands rejected with no order
as to costs.
(Anand P. Kanade)
Judge
City Civil Court, Gr.Mumbai
Date : 15.03.2024
Typed on : 15.03.2024
HHJ signed on : 03.04.2024
-- 6 of 7 --
7 NOTICE OF MOTION NO.1266 OF 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 15.03.2024, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. Anand P. Kanade
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
15.03.2024
JUDGMENT/ORDER signed by P.O.
on
03.04.2024
JUDGMENT/ORDER uploaded on 03.04.2024
-- 7 of 7 --