Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1266-20 in S.C. Suit Stamp no.3802 of 2020
1 Date :16.12.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1266 OF 2020
IN
S.C. SUIT (STAMP) NO. 3802 OF 2020
(CNR MHCC01-003606-2020)
Mr. Pandurang Sambhaji Parab .. Plaintiff
Versus
Mrs. Priya Pandurang Parab & Ors. .. Defendants
Appearances :-
Ld. Adv. Mr. Redekar for plaintiff.
Ld. Adv. Mr. Jaiprakash Sawant for defendant no.1 and 2.
Ld. Adv. Mr. S.K. Paranjape for defendant no. 3 to 8.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 16.12.2020
ORDER
1. The plaintiff has filed instant Notice of Motion seeking
following reliefs :
a) Pending the hearing and till the final disposal of the suit,
the defendant no.1 to 8, their respective family members,
servant and agents be restrained by temporary order of
injunction from disturbing the quiet, peaceful possession
of the plaintiff in respect of the suit premises i.e. Shed
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bearing No. N-6628 (2BC)/154DE at Adhoniwala
Compound, Nityanand Nagar, Near MTNL, Near
Municipal Garage, L.B.S. Marg, Ghatkopar (West),
Mumbai – 400 086 and / or forcibly entering or illegally
attempting, taking or seeking possession fo the suit
premises.
b) Ad-interim and interim reliefs in terms of prayer (a)
above.
c) For costs of the Notice of Motion.
d) For such further and other reliefs as the nature and
circumstance3s of the case may require.
2. It is contended by the plaintiff that, he has filed suit
simplicitor for injunction against the defendants with prayer of not
to disturb the peaceful possession over the suit property, i.e. Shed
bearing No. N-6628 (2BC)/154DE at Adhoniwala Compound,
Nityanand Nagar, Near MTNL, Near Municipal Garage, L.B.S.
Marg, Ghatkopar (West), Mumbai – 400 086
(hereinafter shall be
referred to as “Suit property”).
3. It is contended by the plaintiff that, the suit property was
originally allotted to his mother namely Laxmi Sambhaji Parab
who was the Patch Card Holder. The Municipal Corporation
Assessment was in the name of his mother. He is running his
engineering business from the aforesaid suit premises. He is
having License under Shop and Establishment Act. He is also
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registered vendor for Controlarate of Procurement, Defence
Ministry, Mazgaon Dock and Western Railway. He is filing Income
Tax Return since 2016 to 2019. Thus, it is contended by the
plaintiff that, the aforesaid material clearly establishes his
ownership and possession over the suit property. However, the
defendant no. 1 and 2 on 19.03.2020, quarrel with him and
threatened to put locks on the suit premises. Therefore, the
plaintiff constrained to file instant suit alongwith the instant
Notice of Motion.
4. Defendant no. 1 and 2 opposed Notice of Motion by filing
reply. It is contended by the defendant no. 1 and 2 that, the father
of plaintiff executed his last Will on 12.01.2006, whereby
bequeathed the suit property in the name of defendant no. 2. The
plaintiff in pursuant to the same, handed over the possession of
the suit premises to the defendant no. 1 and 2. The defendants let
on hire the aforesaid suit premises and are earning their
livelihood.
5. It is contended by the defendant no. 1 and 2 that, the
plaintiff has married to another lady during the lifetime of
defendant no. 1 and staying with her and harassing the
defendants. Therefore, on 20.06.2020, the defendant no. 1 has
lodged the complaint against the plaintiff at Parksite Police Station.
Thus, it is submitted by the defendants that, they were having
possession of the suit premises. The plaintiff took forceful
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possession during pandemic situation. The plaintiff is not entitle
for the interim relief. Hence, the defendants prayed for dismissal
of the Notice of Motion.
6. Ld. Adv. Mr. S.K.Paranjape for defendant no. 3 to 8 in
support of the plaintiff, argued to continue the status-quo in the
suit property.
7. Heard both the sides. Perused Notice of Motion, reply,
rejoinder and pleadings of the plaint. The plaintiff filed suit
simplicitor for injunction. The plaintiff in order to show his
possession relied on the patch card of the suit property which is in
the name of his mother, copy of BMC Tax, License under Shop and
Establishment Act, Vendor Registration Certificate issued by the
various Government undertaking, Sales Tax Registration
Certificate, GST Registration Certificate, Electricity Bill, Income
Tax Return from the Assessment year 2016-17 to 2018-19 and
photographs showing his possession in the suit property.
8. Per contra the defendant no. 1 and 2 in order to show their
possession pointed out the Affidavit of the plaintiff dated
03.10.2018 which was submitted with Corporation for change in
the billing name. The Ld. Advocate Mr. Redekar for plaintiff
vehemently argued that, the aforesaid Affidavit does not confer
any titled on the defendants. The defendant no. 2 claiming the
ownership on the basis of un-probated Will, unless and until the
defendant no. 2 obtained the probate of the Will, the said Affidavit
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have no binding effect in the law. He has further argued that, the
aforesaid Affidavit if, would have been filed before the Competent
Court, having testamentary jurisdiction then, that would confirm
the title and possession to the defendant no. 2. Hence, he has
argued that, the said Affidavit do not establishes the title and
possession of the defendants.
9. I have perused the Affidavit which the plaintiff do not deny.
The plaintiff executed the aforesaid Affidavit in favour of his son
i.e. defendant no. 2 in which he has specifically express his no
objection for transfer of ownership and possession of the suit
property in favour of defendant no. 2. Accordingly, the application
was made to the Corporation and name on the Tax Assessment is
changed.
10. It is not in dispute that, unless and until Will is not probated,
it has no value. However, at this interim stage, this Court has to
see the possession of the suit property. The aforesaid Affidavit
clearly shows that, the plaintiff himself handed over the possession
of the suit premises to the defendant no. 2. Hence, the contention
of the plaintiff that, he is in possession can not be accepted.
11. It has been argued by the Ld. Advocate Mr. Redekar for the
plaintiff that, the defendants in their reply contended that, on
19.03.2020, the plaintiff took forceful possession from them. The
aforesaid pleadings shows that, the plaintiff is in possession and
therefore, he could not be dispossessed without following due
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procedure of law. In support of his submission, he has relied on
the following judgments which is with respect to the trespassers in
settled position could not be dispossessed without following due
procedure of law.
1) Hon’ble Delhi High Court in case of Hindustan
Petolium Corporation Ltd. V/s. Shri. Madan mohan Arora
and Ors. reported in 1996 AIHC 1203.
2) Hon’ble Bombay High Court in case of Govindbhai s/o
Ramjibhai Chauhan V/s. Gokulchand s/o Juthalal Agrawal
& Anr. reported in 1996 AIHC 1202.
3) Hon’ble Karnataka High Court in case of National
Insurance Co. Ltd. V/s. T. Sharanoppa & Anr. reported in
1997 AIHC 2094.
4) Hon’ble Madras High Court in case of K.Chennaiyan
V/s. Muniammal & Ors. reported in 1997 AIHC 2693.
12. Per contra Ld. Advocate Mr. Jayprakash Sawant for
defendant no. 1 and 2 relied on the judgments of the
Hon’ble Apex
Court reported in (2004) SCC 769 in case of Rame Gawda (D) By
Lrs. V/s. M. Varadappa Naidu (d) By Lrs. & Anr. and contended
that, the plaintiff can not be termed as a trespasser in the settled
possession of suit property.
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13. I have perused relevant paras, wherein the Hon’ble Apex
Court have culled down certain test determining the attributes of
settled possession. They are as follows :
i) That the trespassers must be in actual physical possession
of the property over a sufficiently long period.
ii) That the possession must be to the knowledge (either
express or implied) of the owner or without any attempt
at concealment by the trespasser and which contains an
element of animus possidendi. The nature of possession
of the trespasser would, however, be a matter to be
decided on the facts and circumstances of each case.
iii) The process of dispossession of the true owner by the
trespasser must be complete and final and must be
acquiesced to by the true owner and,
iv) that one of the usual tests to determine the quality of
settled possession, in the case of culturable land, would
be whether or not the trespasser, after having taken
possession, had grown any crop. If the crop had been
grown by the trespasser, then even the true owner has no
right to destroy the crop grown by the trespasser and take
forcible possession.
14. After considering the aforesaid test laid down by the Hon’ble
Apex Court and case in hand, in my view, the plaintiff after
handing over possession in October 2018, was not in possession of
suit premises and he has obtained possession on 19.03.2020,
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which is very short duration. Prima-facie, the plaintiff is not in
settled possession.
15. It is argued by the Ld. Advocate for defendants that, the
plaintiff has not approached this Court with clean hands and
therefore, he is not entitle for any relief. In support of his
submission, he has relied on the following authorities :
1) Sangita Ambadas Khandagale V/s. The State of
Maharashtra & Ors., Writ petition No. 1092 of 2018 dated
31st January, 2018, (High Court, Auragabad Bench).
2) S.P.Chengalvaraya Naidu (D) by Lrs. V/s. Jagannath
(D) by Lrs. & Ors., reported in (1994) 1 SCC.
3) Nagorao & Ors. V/s. The Nagpur Improvement Trust
reported in IR 2001 Bombay 402.
16. On overall consideration of the case of plaintiff, prima-facie,
it appears that, in the year 2018, he himself handed over the
possession of the suit property to the defendants. However, on
19.03.2020, he came in the possession of the suit property and
filed instant suit upon the dispute arose between him and the
defendant no. 1. The aforesaid conduct shows that, the plaintiff
has not approached the Court with clean hands. Hence, in my
view, the plaintiff failed to made out prima-facie case. Hence, the
Notice of Motion needs to be dismissed with cost. Thus, I proceed
to pass the following order :
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ORDER
1. Notice of Motion No. 1266 of 2020 is hereby dismissed with
cost of Rs. 5,000/- to be payable by the plaintiff to the
defendant no. 1 and 2 within a period of one month from the
date of order.
2. Notice of Motion No. 1266 of 2020 is disposed of
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 16.12.2020 Greater Bombay.
Dictated on : 16.12.2020
Typed on : 18.12.2020
Draft Submitted on : 18.12.2020
Checked on : 18.12.2020
Signed on : 18.12.2020
Uploaded on : 18.12.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
18/12/2020 at 3.15 p.m. (Ms. V. V. Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
16/12/2020
JUDGMENT/ORDER signed by P.O.
on
18/12/2020
JUDGMENT/ORDER uploaded on 18/12/2020
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