Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.1004-2018 Suit 393-2018
MHCC010032812018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER
BOMBAY
NOTICE OF MOTION NO.1004 OF 2018
IN
S. C. SUIT NO.393 OF 2018
Mr. Ganesh Ramchandra Patil ]
Age: 49 years, Occ: Service, ]
R/a. Room No.169, ]
Janata Colony, Navnit Chowk, ]
Near Hanuman Temple, ] .. Plaintiff.
Versus
1. Mr. Ravindra Ramchandra Patil, ]
Age: 47 years, Occ: Service, ]
2. Mrs. Hastika Ravindra Patil, ]
Age: 40 years, Occ: Service, ]
3. Mr. Dipesh Ravindra Patil, ]
Age: 19 years, Occ: Service, ]
All residing at:
Room No.261, Janata Colony, ]
Navnit Chowk, Near Sai Baba ]
Temple, Worli Village, ]
Mumbai-400 030. ] .. Defendants.
Appearances :-
Son of Plaintiff present.
None for defendants.
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CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 22/04/2024
ORDER
The plaintiff has taken out the present notice of motion for
claiming the relief inter alia;
(a) To grant temporary injunction for restraining the defendants,
their servants, agents or assignees, or any other persons claiming by,
through or under them from and in any manner encroaching upon
and/or dispossessing the plaintiff and his family, their agents or servants
or assigns or any other person claiming by, through or under them
and/or interfering with their use, occupation and possession of the
Room No. 169, Janata Colony, Navnit Chowk, near Hanuman Temple,
Worli village, Mumbai, (hereinafter referred as ‘suit property’) till final
disposal of the suit.
(b) To grant temporary injunction for restraining the defendants,
their servants, agents or assigns, or any other person claiming by,
through or under them from and in any manner obstructing the ingress
and egress of the plaintiff and his family, their agents or servants or
assigns or any other person claiming by, through or under them and/or
his visitors from the suit property.
(c) To grant temporary injunction for restraining the defendants,
their servants, agents or assigns, or any other person is claiming by,
through or under them from and in any manner threatening, abusing,
assaulting and/or defaming the plaintiff and his family, their agents or
servants or assigns or any other person is claiming by, through or under
them and/or his visitors with respect to the suit property.
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2. In affidavit in support, the plaintiff has contended that he
alongwith his family members residing in the suit property since year
1993. The defendant No.1 is his brother, the defendant No.2 is wife and
the defendant No.3 is son of the defendant No.1. They are residing in
the room No. 261 in the same society where the plaintiff is residing. It is
further contention of the plaintiff that in the year 1988, he came to
Mumbai along with the defendant No.1 from their native place and
since 1988 to 1993, they have resided at various places in Mumbai on
rent. It is further contended that in the year 1993, the plaintiff has
purchased suit property from one Mrs. Shakuntala Rajendra Dikshit for
the consideration amount of Rs. 20,000/-. It is also contended that the
father of the plaintiff has given him, Rs. 20,000 /- to purchase the suit
property.
3. According to the plaintiff, in February 1993, the possession
of the suit property was transferred to him vide general power-of-
attorney. It is further contended that in the year 1993, the relation
between the plaintiff and defendant No.1 was cordial. At that time the
defendant No.1 was absolutely dependent upon the plaintiff. Out of
love, trust and affection, the power-of-attorney in the year 1993 from
Mrs. Shakuntala Rajendra Dikshit was made in the name of defendant
No.1. It is further contended that till November 2017, the electricity
meter of the suit property was in the name of defendant No.1 and now
the defendant No.1 has transferred the said meter in the name of the
defendant No. 3. It is also contended that the plaintiff got married in
the year 1993, and he started residing in the suit property. The
defendant No.1 got married in the year 1996, and thereafter he
alongwith his wife started residing with the plaintiff, in the suit
property.
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4. According to the plaintiff, after the birth of children, it was
difficult to reside in the suit property as it is having very small area.
Therefore, in the year 2002, the plaintiff has given rupees one lakh to
the defendant No.1 to purchase room No. 261 for the defendants. By
that time, the relation of the plaintiff and defendant No.1 was cordial
and no single dispute was arisen between them. It is further contended
that as a part of oral family settlement executed between the plaintiff
and defendant No.1, it was decided that the plaintiff will reside in the
suit property and the defendant No.1 will reside in the room No. 261 in
the same society. It is the contention of the plaintiff that since last one
year relation between himself and the defendant No.1 become strained
and due to which the defendant No.1 unilaterally with ulterior motive
transferred the electricity meter of the suit property, in the name of the
defendant No.3. On 24/11/2017, the son of the plaintiff has received
one message from BEST about the change in name of electricity
consumer. Thereafter, the son of the plaintiff has obtained information
from the BEST under RTI and then, they came to know that the
electricity meter was transferred in the name of the defendant No.3.
According to the plaintiff, thereafter he contacted the defendant No.1
for the explanation of his aforesaid activity, but the defendant No.1
refused to answer and threatened the plaintiff.
5. It is further contended that after the change in the name of
electricity meter, the defendant No.1 and his family started picking
quarrels with the plaintiff and his family and also with the visitors to
him. On 08/01/2018, one Shri. Rupesh Pawar friend of his son is
coming to the house of the plaintiff to meet his son and he was
inquiring about the direction to reach to the suit property. At that time,
the defendant No.1 and 3 stopped him and threatened that the suit
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property not belongs to his friend and the suit property belongs to the
defendant No.1 only and threatened him not to visit again the suit
property as his friend will not be available there. Thereafter, Shri.
Rupesh Pawar intimated about the aforesaid incident to the son of the
plaintiff. On the same day, at around 6:00 pm, when the plaintiff met
with the defendant No.1 and asked about his aforesaid behaviour, he
threatened the plaintiff that the suit property belongs to him and the
plaintiff has to vacate the suit property, failure of which, he will face the
consequences.
6. It is the further contention of the plaintiff that after the
aforesaid incident, the defendants started threatening regularly to the
plaintiff, his family members and visitors. On 13/01/2018, at around
9:30 am, when the daughter of the plaintiff was alone in the suit
property, the defendants knocked the door of the suit property. When
the daughter of the plaintiff opened the door, the defendants started
assaulting and abusing her and thereby entered in the suit property.
When she tried to stop them from the said trespass, the defendant No.2
with the help of other defendants assaulted her and also abused her in
filthy language. It is also contended that the defendants have driven out
the daughter of the plaintiff from the suit property and tried to get
possession of the suit property. It is contended that during the aforesaid
assault, the daughter of the plaintiff sustained minor injuries.
Thereafter, the daughter of the plaintiff called her brother and police.
The police officials came and removed the defendants from the suit
property. Thereafter, the daughter of the plaintiff has lodged NCR
bearing No.84 of 2018 with Dadar police station.
7. It is also contended that after the aforesaid incident, the
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plaintiff is continuously in fear that the defendants will dispossess him
and his family members from the suit property. It is also contended that
the plaintiff is residing in the suit property since last 25 years and he
has no other alternate accommodation. It is further contended that the
plaintiff has prima facie case and if the defendants are not restrained by
an order of temporary injunction, the plaintiff will suffer irreparable
loss. Hence, this motion.
8. The defendants have opposed the notice of motion by filing
their reply mainly on the grounds that the plaintiff has falsely and
incorrectly given description of the suit property. It is submitted that
the suit property is hut and it is situated on the land of Bombay Port
Trust. The defendant No.1 is bona-fide purchaser of room No. 904
which is mischievously described as room No.169, too matched with the
fabricated documents produced by the plaintiff alongwith the plaint.
They have further submitted that room No. 904 is self-acquired property
of the defendant No.1 as he purchased it from his own income. It is also
submitted that the defendant No.1 is residing in the room No. 904 since
year 1991 and he allowed the plaintiff to stay in the said room as a
family member. According to the defendants, the room number of the
suit property is 904 since 1993 till date and the description of the suit
property is not correct. It is further submitted that the defendants are
residing in the room No. 904 i.e. in the suit property, till the obstruction
created by the plaintiff. It is further submitted that the defendant No.1
came to Mumbai in the year 1988 for service. In the year 1992, the
defendant No.1 took suit property i.e. room No. 904 on leave and
license basis from the original homeowner/slum dweller Mrs.
Shakuntala Rajendra Dikshit for 11 months. Thereafter, on 22/02/1993
the defendant No.1 purchased said room by paying Rs.16,000/- towards
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consideration and since then the defendant No.1 is residing in the said
room. It is also submitted that in February 1993, the landlady of the suit
property got better accommodation somewhere else and she transferred
the said room i.e. 904 in favour of the defendant No.1. It is also
submitted that the plaintiff was always enjoying the property of the
defendant No.1. He never paid single rupee to him till date. It is the
submission of the defendant No.1 that he is the absolute owner of the
suit property and he has every right to transfer the said room his son
that is the defendant No.3.
9. According to the defendants, the plaintiff started
obstruction to use and possession of the suit property since November
2017. It is further submitted that the alleged fabricated incidents,
mentioned in the plaint were created by the plaintiff to put pressure on
the defendant No.2. When the daughter of the plaintiff has filed NCR
against the defendant No.2, at that time the defendant No.2 also filed
NCR against the daughter of the plaintiff. It is also submitted that the
plaintiff is trying to grab sympathy from him and his family to cover his
encroachment/trespassing in the suit property. All the documents in
respect of the room No. 904 are in the name of the defendants.
According to the defendants, there is no cause of action for the plaintiff
to bring this suit. The plaintiff is guilty of suppressing material facts as
well as made deliberately false and misleading statement in the plaint
as well as in his notice of motion therefore, in absence of any
documentary evidence at this stage, the plaintiff is not entitled for any
relief as he failed to make out the prima facie case, balance of
convenience also not lies in favour of the plaintiff. On all these grounds
the notice of motion is opposed by the defendants.
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10. Perused notice of motion, reply and documents annexed
with the plaint as well as notice of motion. The notice of motion is
pending since year 2018 and nobody was present when the matter was
called out for hearing. Therefore, the pleadings of both the parties are
considered as their argument and this notice of motion is taken up for
decision on merit.
11. The plaintiff is claiming his possession on the room No.169
and the defendants are making submission in respect of the room
No.904. According to the defendants, the plaintiff has not given
description of the suit property. But the defendants have admitted that
they allowed the plaintiff to reside in the suit property. By way of this
admission, the defendants are admitting the possession of the plaintiff
upon the suit property.
12. To prove the prima facie case, the plaintiff has to prove his
right, interest and the title in the suit property. According to the
plaintiff, he is in possession and to prove the possession, he has annexed
the documents viz. consumer receipt issued by HP gas agency, Voter
identity cards, Aadhar cards, income tax return verification form, life
insurance policies, copies of bank passbooks, admission certificate of the
son of the plaintiff. On all these documents, the address of the plaintiff
is shown as Room No.169, The Voter identity card was issued in the
year 1993 and on which the address of the plaintiff is mentioned as
Room No.169. The progress reports of the son of the plaintiff indicate
that they were residing in Room No.95 in the year 2001-2009.
13. It is seen that the electricity meter was initially in the name
of the defendant No.1 and subsequently it was transferred in the name
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of the defendant No.3. It is pertinent to note that in all the other
documents, the address of the plaintiff is shown as the Room No.169.
Though the defendants have submitted that the plaintiff has not given
proper description of the room, in the plaint para No.7, it is specifically
mentioned that room No.169 itself is (then room No.904 and
afterwards 95). Therefore, it cannot be said that the plaintiff has given
wrong description of the suit property.
14. It is pertinent to note that copy of one agreement dated
24/12/1992 indicates that the defendant No.1 has given the suit
premises on rent on behalf of the original tenant Smt. Shakuntala Patil
to one Chintaman Kokate. But it appears that on 22/02/1993, the said
original tenant has handed over the possession of the suit premises to
the defendant No.1. It further appears that to the said transaction, the
plaintiff, Chintaman Kokate and others were witnessed. According to
the defendants, the relation between them and the plaintiff was good
till the year 2017 till the electric meter transferred in the name of the
defendant No.3 as per their family settlement. This admission of the
defendants goes to the root of the matter. It is the most significant
aspect which needs to consider here that since 1993, all the documents
of the plaintiff and his family members show their address as room No.
169 (904), and the defendants have not taken any objection on this
material aspect. Their relation was cordial till year 2017, it means that
the defendants were not having any objection for mentioning the
address as room No.169 (904) by the plaintiff on their material
documents. The defendants have not produced any document to show
that the room No.169 is another room and not the room No.904.
Admittedly, the electricity bill is not the proof of ownership.
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15. In the present case, both parties are claiming possession
over the suit property. It is pertinent to note that the issue of the
possession and whether the plaintiff has paid amount to the defendant
No.1 to purchase the suit property are concerned, the same can be
decided only on the merit after adducing the evidence by both the sides.
Now the relation of both the parties are strained. From the documents
produced on record, it appears that the plaintiff is residing in the room
No. 169 and to avoid the multiplicity of the proceedings, it is necessary
to protect the possession of the suit property during the pendency of
this suit. Considering the facts and circumstances of the case, I reached
to the conclusion that the plaintiff has made out the prima facie case
and balance of convenience lies in his favour. If the temporary
injunction is not granted, the plaintiff will lose his possession over the
suit property which could not be compensated in terms of money. Thus,
I am of the view that this is the fit case to grant temporary injunction in
favour of the plaintiff. In the result, I proceed to pass following order:-
O R D E R
1. The Notice of Motion No. 1004 of 2018 is hereby allowed
in terms of prayer clause (a) to (c).
2. Costs in cause.
3. Notice of Motion No. 1004 of 2018 is accordingly disposed
of.
(Smt. Anita B. Sharma,)
Judge,
City Civil Court, Greater Bombay
Dated : 22/04/2024 C.R. No.03
Dictated on : 22/04/2024
Typed on : 27/04/2024
Signed on : 27/04/2024
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“Certified to be true and correct copy of the original signed order”.
27/04/2024
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
: 22/04/2024
Order signed by Hon'ble13 pt
Judge on
: 27/04/2024
Order uploaded on : 27/04/2024
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