Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1126-18 in S.C. Suit no.1321-17
1 Date :18.12.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1126 OF 2018
IN
S.C. SUIT NO. 1321 OF 2017
(CNR NO.MHCC010036482018 )
Mr. Narendra Arjun Shivkar .. Plaintiff
Versus
Mr. Kishor Arjun Shivkar & Ors. .. Defendants
Appearances :
Ld. Adv.Harish R.Pawar of plaintiff.
Ld. Adv. S.S.Redekar for defendant no.2 to 4.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 18.12.2019
ORDER
1. The plaintiff filed instant Notice of Motion seeking following
reliefs :
(a) Pending the hearing and final disposal of the present
suit the defendants their servants, agents or person/s
claiming through them be restrained by an order of
temporary injunction from obstructing, interfering and
disturbing the peaceful possession of the plaintiff in
respect of the suit premises in Trust viz. Flat No. 3, “C”
Wing, admeasuring about 600 sq. ft. carpet area, Adi
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NM 1126-18 in S.C. Suit no.1321-17
2 Date :18.12.2019
Janata Shivkoliwada Cooperative Housing Society
Ltd., Sion (East), Mumbai – 400 022.
(b) That adinterim and interim reliefs in terms of prayer
clause (a) above.
(c) Cost be provided for.
(d) Any other further reliefs as this Hon’ble Court be deem
fit and proper be granted.
2. It is the contention of the plaintiff that the defendant no. 1 is
his real brother and defendant no. 2 and 3 are the legal heirs of
deceased brother namely Suresh Arjun Shivkar. Defendant no. 4
to 7 are the legal heirs of Arjun Bala Shivkar. It is contended by
the plaintiff that his father during his lifetime has purchased Flat
No. 3, “C” Wing, at Adi Janata Shivkoliwada Cooperative Housing
Society Ltd., Sion (East), Mumbai – 400 022. (hereinafter shall be
referred to as suit premises).
3. Plaintiff’s father during His lifetime, made nomination
application dated 19.04.2011 whereby he had nominated the
plaintiff, defendant no. 1 and 2 with respect to the entitlement of
share in the suit flat after demise of his father. It is further
contended by the plaintiff that his father died intestate on
26.03.2015 leaving behind him the plaintiff and defendants as
only surviving heirs and legal representatives as per Hindu
Succession Act, 1956 and thus, they are entitled to succeed the suit
flat equally.
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NM 1126-18 in S.C. Suit no.1321-17
3 Date :18.12.2019
4. It is contended by the plaintiff that after the death of his
father, the plaintiff is in possession of the suit premises and
maintaining and managing the suit premises. The plaintiff is
paying maintenance charges of the suit premises to the society.
The plaintiff is in possession of respective maintenance bills by the
society. The plaintiff since March 2015 to 31.03.2017 has paid
maintenance charges total amounting to Rs. 39,512/ and he has
paid Rs. 3,900/ towards electricity charges. Therefore, the
plaintiff is in possession of the suit premises. However, defendant
no. 1 is objecting and disturbing the aforesaid possession of the
plaintiff. It is contended by the plaintiff that he has 1/6th share in
the suit flat. Therefore, he constrained to file suit for declaration
of his 1/6th share and possession of the suit premises. Therefore,
the plaintiff also filed instant Notice of Motion seeking interim
injunction, restraining the defendant no. 1 from disturbing
peaceful possession of the suit premises.
5. Per contra the Notice of Motion as well as suit has been
opposed by the defendant no.1 by filing Written Statement Exh.2.
The defendant no. 2 to 7 have also filed their Written Statement in
support of claim of the plaintiff.
6. It is contended by the defendant no. 1 that during lifetime of
his father he has acquired Flat Nos. C3, C7 and C8. The plaintiff
is residing in Flat No. C7, whereas, defendant no. 2, 3 and 4 are
residing in Flat No. C8. The defendant no. 1 was residing in suit
flat alongwith his father. In the year 1983, in view of mutual
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NM 1126-18 in S.C. Suit no.1321-17
4 Date :18.12.2019
partition, the suit flat was decided to be given to the defendant no.
1. Therefore, he is an exclusive owner and possessor of the suit
flat. In support of his claim of possession, the defendant no. 1
annexed Govt. of Maharashtra Electoral Voter’s list of 1988, MTNL
Bill dated 15.11.2000, Gas connection papers, Ration Card,
Passport, Pass Book of P.P.F. Account in Central Bank of India,
maintenance receipt, Electricity bill dated 16.10.2017. Thus, the
defendant no. 1 prayed for rejection of the Notice of Motion.
7. Heard both the sides. Perused plaint, Notice of Motion and
Written Statement. It is the specific case of the plaintiff that the
suit property is the ancestral property of his father and after the
death of his father all the parties are having equal share and thus,
plaintiff is entitled for 1/6th share in the suit property. Whereas,
the defendant no. 1 claiming exclusive ownership over the suit
property. The plaintiff claimed his exclusive possession over the
suit flat and in support of the same, he has filed maintenance
receipt for the month of February 2017 and March 2017 and also
annexed the maintenance charges and electricity charges paid by
him.
8. It is pertinent to note that the plaintiff did not filed single
electricity bill, showing his exclusive possession. Moreover, as per
the contention of the plaintiff and address mentioned in the title
clause, it appears that the plaintiff is residing at Flat No. 7, “C”
Wing in the same society. It is the case of plaintiff that he is
residing in the said flat since the date of formation of the society.
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NM 1126-18 in S.C. Suit no.1321-17
5 Date :18.12.2019
The plaintiff did not plead how he came in the exclusive
possession of the suit premises, whereas the documents filed by
the defendant no. 1 such as Govt. of Maharashtra Electoral Voter’s
List, electricity bill, Gas Connection papers, telephone bill dated
15.11.2000, Ration Card, Passport, Pass book of P.P.F. Account in
Central Bank of India, reflect the address of the defendant no. 1 as
Flat No. C3 i.e. of suit flat. Therefore, in my view, primafacie,
the plaintiff failed to prove his exclusive possession over the suit
premises. Hence, injunction against defendant can not be granted.
Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 1126 of 2018 is hereby rejected.
2. Parties to bear their own cost.
2. Notice of Motion No. 1126 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 18.12.2019 Greater Bombay.
Dictated on : 18.12.2019
Typed on : 18.12.2019
Draft Submitted on : 18.12.2019
Checked on : 19.12.2019
Signed on : 19.12.2019
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NM 1126-18 in S.C. Suit no.1321-17
6 Date :18.12.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19/12/2019 at 11.10 a.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
18/12/2019
JUDGMENT/ORDER signed by P.O.
on
19/12/2019
JUDGMENT/ORDER uploaded on 19/12/2019
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