Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.1087/2018 ..1.. In S.C. Suit No.2077/2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 1087 OF 2018
IN
S.C. SUIT NO. 2077 OF 2018
CNR NO :- MHCC01-003509-2018
Bhagwan Hari Posnak,
Residing At : Room No. 1,
Baradevi Zopadpatti, Sangh,
Adjacent to Baradevi Municipal School,
Acharya Donde Marg, Sewri,
Mumbai - 400 015. ...Plaintiff
Versus
Mrs. Kalyani Balkrishna Kalmundkar,
Residing At : Adjacent to Baradevi
Municipal School, Acharya Donde Marg,
Sewri, Mumbai - 400 015. ...Defendant
Appearance :-
Ms. Khobragade, Advocate for the Plaintiff.
Mr. Ravikumar Mishra, Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 26TH FEBRUARY, 2021.
ORAL ORDER
By this notice of motion, the plaintiff has sought temporary
injunction to restrain the defendant from disposing room No. 1,
measuring 1.7 meters x 2.5 meters, Baradevi Zopadpatti, Sangh, Near
Baradevi Municipal School, Acharya Donde Marg, Sewri, Mumbai - 400
015 (hereinafter referred as, “The Suit Premises”) and also to restrain
the defendant and anybody through her from dispossessing the plaintiff
from the suit premises and from encroaching the suit premises.
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Notice of Motion No.1087/2018 ..2.. In S.C. Suit No.2077/2018
2. In brief, the Plaintiff’s case is that, he is the owner of the
suit premises. The defendant is residing in Room No. 2 which is
adjacent to the suit premises. In fact, the plaintiff has divided
residential room No. 1, has created room No. 2 and allowed defendant
to occupy the same, since the defendant is sister of plaintiff’s wife. The
Municipal Corporation of Greater Mumbai (hereinafter referred as,
“MCGM”) had issued a notice under Section 351(1) of the MMC Act to
remove the brick wall separating these two rooms and ultimately
demolished the same. The defendant is constantly threatening to
disposes the plaintiff as well as to create third party interest.
3. The defendant has come with a case that, her husband has
purchased room No. 1 from the plaintiff in the year 1994. Room No. 1
measuring 156 sq.ft. is in her possession. The plaintiff had three rooms
at different locations and therefore had sold room No. 1 to defendant’s
husband. By creating false and bogus documents the plaintiff had
constructed unauthorized partition wall. The defendant’s husband is no
more. The defendant and her daughters are staying in room No. 1. The
defendant has various documents revealing the proof of her residence
and ownership on room No. 1. Since, she is the owner and possessor of
room No. 1, notice of motion be dismissed.
4. Following points arise for determination against which
findings are recorded for the reasons to follow.
Sr. No. POINTS FINDINGS
1. Whether plaintiff is made out a prima-
facie case in his favour? In the Affirmative
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Notice of Motion No.1087/2018 ..3.. In S.C. Suit No.2077/2018
2. Whether the balance on convenience
lies in plaintiff’s favour? In the Affirmative
3. Whether plaintiff is suffered
irreparable loss in case of refusal of
injunction?
In the Affirmative
4. What order? As per final Order.
REASONS
AS TO POINTS NO. 1 TO 4 :-
5. Perused. Heard.
6. It is defendant’s contention that room No. 1 is purchased by
her husband from the plaintiff. This itself indicates that the plaintiff
was owner of the suit premises. In order to prove passing of title of
room No. 1 from the plaintiff to defendant’s husband, defendant has
relied on a writing at Exh.A to the reply to notice of motion. Said
document is not registered deed which can legitimately transfer
ownership of immovable property from one person to another. Thus,
the deed at Exh.A can not prove passing of title of room No. 1 from the
plaintiff to husband of defendant.
7. Considering above circumstances, the ownership of plaintiff
on room No. 1
prima-facie stands established.
8. The defendant has produced various documents on record.
At Exh.O to the reply, she has produced copy of FIR in Crime No.
230/2017. In her own statement, which is considered as FIR, she has
mentioned that, the plaintiff has created a room by erecting a wall in
room No. 1 and at present the plaintiff, his wife and son are staying in
said room. This is a clear admission on the part of defendant that, the
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Notice of Motion No.1087/2018 ..4.. In S.C. Suit No.2077/2018
plaintiff is staying in the suit premises i.e. the plaintiff is in possession
thereof. The statement of defendant is recorded in the year 2017 which
is prior to filing of present suit. Thus, as on the date of the suit the
plaintiff is in possession of the suit premises as admitted by defendant
herself.
9. The plaintiff has also produced on record a notice issued by
MCGM to the plaintiff. Said notice is served on the address of suit
premises and is acknowledged by plaintiff’s wife. Similarly, the copy of
speaking order dated 05.02.2018 issued on the address of suit premises
is received by the daughter of the plaintiff. At Exh.S to the reply to
notice of motion, the defendant has produced note of demand by
MCGM. It is jointly in the name of the plaintiff and the defendant. At
Exh.Q is the receipt revealing that, the plaintiff has paid the demolition
charges as required by the MCGM. The documents from Exh.P to Exh.S
thus reveal that, the plaintiff and his family is staying in the suit
premises.
10. Considering the above said position it is clear that, the
plaintiff has made out triable issues as to his ownership and possession
on the suit premises. In other words, he has made out a prima-facie
case.
11. As admitted by the defendant, the plaintiff is in possession
of the suit premises. Consequently, balance of convenience lies in the
plaintiff’s favour. In such circumstances, if the injunction is not granted,
the plaintiff’s legal rights in respect of the suit premises will be illegally
disturbed. Thus, the plaintiff has also made out a case of suffering
irreparable loss in absence of an injunction. Consequently, I answer
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Notice of Motion No.1087/2018 ..5.. In S.C. Suit No.2077/2018
points No. 1 to 3 in the affirmative and in response of point No. 4, pass
following order.
ORDER
1. Notice of Motion No. 1087/2018 is made
absolute in terms of prayer Clause (a) and (b).
2. The defendant or anybody through her is
restrained temporarily till disposal of suit from
alienating or disposing the suit premises in any
manner.
3. The defendant or anybody through her is
temporarily restrained till disposal of the suit
from interfering into the plaintiff’s possession on
the suit premises and from dispossessing the
plaintiff from the suit premises or encroaching
thereupon.
4. The Notice of Motion is disposed of in above
terms.
5. Costs in cause.
(AJIT N. MARE)
Judge,
Date : 26.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 26.02.2021
Transcribed on : 01.03.2021
HHJ Signed on : 02.03.2021
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Notice of Motion No.1087/2018 ..6.. In S.C. Suit No.2077/2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
02.03.2021 6.02 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 26.02.2021
Order signed by P. O. on 02.03.2021
Order uploaded on 02.03.2021
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