Final Order 1

Order Details: Notice of Motion
Pdf Text: Date
28.11.2023
19
Coram: H.H.J. Shri. V. G. Raghuwanshi, City Civil Court, Mumbai.
(C.R.08)
SU 376/2019
NM
1336/2019
Adv. Deepak Khillari present for plaintiff.
Adv. Prajakta Rane present for defendant No.1.
Adv.Ramesh Singh present for defendant No.2 and 4 to 8.
Adv. Sunil Kanot present for defendant No.3.
Order on Notice of Motion No.1336 of 2019 in Suit No.376 of 2019
Perused notice of motion and replies filed by defendants. Heard
their counsels.
This is a dispute between children of Yeshwant Sawant
regarding suit property i.e. room No.412, Bhagirath Sadar, Senapati
Bapat Marg, Lower Parel, Mumbai. It is contended by plaintiff that
Yeshwant Sawant was tenant in Room No.412. He passed away on
29.09.1996. Plaintiff and defendant Nos.1 to 8 were residing in the
said room with deceased Yeshwant Sawant. After death of Yeshwant
Sawant, defendant No.1 got suit property transferred to his name.
Exh. D (page No.33 of plaint) is agreement between deceased and
Yeshwant and MHADA. It shows that defendant No.2 was residing
with deceased Yeshwant. Learned counsel of plaintiff drew my
attention towards signature of Yeshwant on agreement dated
25.05.1988 between him and MHADA and signatures of deceased
Yeshwant on alleged application dated 07.10.1995 and affidavit
dated 26.09.1995 by which deceased Yeshwant allegedly sought to
transferred suit property to defendant No.1. He pointed out that
these three signatures are patently different. He submitted that the
affidavit is bogus. I have perused these documents. The signatures
on three documents are apparently different.
Learned counsel of plaintiff drew my attention to letter written
by MHADA to defendant No.1 on 30.01.1996 (Exh.I page 44 of
plaint). By this letter defendant No.1 was called upon to submit
NOC of other legal representatives of deceased Yeshwant but
Prakash did not submit NOC of other legal representatives of
deceased Yeshwant. Learned counsel for plaintiff drew my attention
to Exh.J (page No.46 of plaint). He submitted that defendant No.1
mentioned in this indemnity bond that he was legal heir of deceased
Yeshwant and was entitled to rent receipt in his name. He submitted
that other legal representatives of Yeshwant were also entitled to
have their names as tenant of said room. He drew my attention
towards para No.3 on page No.4 of this indemnity bond in which
defendant No.1 undertook to surrender said premises if any other
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legal heir of deceased Yeshwant calimed interest in the premises. He
pointed out that defendant No.1 did not annex no objection of other
legal heirs of Yeshwant with his application dated 12.04.1996. He
pointed out that the application (page No.52 of plaint) was filed
during life time of Yeshwant and in this application different ages of
Yeshwant were mentioned. Learned counsel of plaintiff drew my
attention towards letter from Estate Manager dated 16.08.1996 by
which defendant No.1 was directed to produce NOC of other legal
representatives of deceased Yeshwant. The defendant No.1 by letter
dated 31.08.1996 (Exh.M) informed Estate Manager that as
Yeshwant was alive. There was no question of NOC of other legal
representative of Yeshwant. He also pointed that thereafter
defendant No.1 was asked to come with original tenant (Yeshwant)
and appear before the authority because there is difference in
signatures of original tenant.
In the course of argument I asked learned counsel of defendant
No.1 whether after this letter Yeshwant was produced before the
authorities. She conceded that Yeshwant was not produced before
authorities. Thus one thing is clear that there is appearant difference
between signatures of Yeshwant in agreement with MHADA and the
documents by which Yeshwant allegedly sought to transferred suit
property to defendant No.1 to the exclusion of other legal heirs of
Yeshwant.
Learned counsel of defendant No.1 submitted that the suit is
barred by limitation as the plaintiff knew about mutation of name of
defendant No.1 in the record of MHADA as the parties had cordial
relations during that period. She also drew my attention towards
pleadings in written statement of defendant No.1 that defendant
No.1 supported entire family of Yeshwant including widows and
children of two pre-deceased sons of Yeshwant. As defendant No.1
shouldered the entire responsibility, Yeshwant transferred this room
to defendant No.1. This is all a matter of evidence. It cannot be
decided without detailed appreciation of evidence of both parties.
At this stage plaintiff primafacie proved that deceased Yeshwant
was tenant of suit property. After his demise, all children of
Yeshwant had interest in suit property. If in such circumstances
defendant No.1 creates third party interest in the suit property, it
will caused irreparable loss to plaintiff. Balance of convinience lies
in favour of plaintiff. In such circumstances discretion needs to
exercised in favour plaintiff. He is entitled to relief of injunction as
prayed by him. Hence I pass following order;
ORDER
1. Notice of Motion No.1336 of 2019 is allowed.
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2. Defendant No.1 is restrained from selling, transferring, disposing
of or creating third party interest in the suit property either by
himself, or through his agent, servant,relatives ect. during pendancy
of this suit.
3. Notice of Motion No.1336 of 2019 stands disposed off.
Matter is referred to Lok Nyayalay which is on 09.12.2023.
Matter adjourned for Lok Nyayalay to 09.12.2023.
Judge
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