Final Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1474 OF 2019
IN
S.C.SUIT NO.90 OF 2918
1. Shardaben Purshottam Patel,
2. Priyesh Purshottam Patel, ... Plaintiffs
Versus
1. Ashok Manibhai Patel
2. Lilabaen Manibhai Patel ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 7th JUNE, 2019
Advocate Ms. Vidya Seth for Plaintiffs.
Advocate Mr. Bhadang for Defendants.
ORDER
1. This Notice of Motion is taken out by plaintiff no.1 for
temporary mandatory directions to defendants to provide keys of the
suit premises to the plaintiffs. Further they prayed for mandatory
directions to the defendants to place back all the flower pots of the
plaintiffs which are removed from the garden area from the suit
premises and further not to disturb the plantation which is in existence
since last several years. Plaintiffs have also prayed for temporary
injunction restraining defendants and their family members from
entering the rooms of the plaintiffs and from removing the CCTV
cameras or articles belonging to plaintiffs from those rooms. Plaintiff
no.1 has filed her affidavit in support of notice of motion contending
that after filing of this suit notice of motion was taken out by plaintiffs.
It was dismissed. Therefore, plaintiffs have filed Appeal against Order
before the Hon'ble High Court. In Appeal No.482 of 2018 defendant
no.1 has made statement that he has no intention to dispossess the
plaintiffs from the suit premises without following due process of law
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and there will be no obstruction to plaintiffs to use of any common
areas of the suit premises. It is alleged that despite of their own
statement, defendants are taking advantage of the fact that plaintiff
no.2 is out for work and plaintiff no.1 is alone at home. It is contended
that plaintiff no.1 is suffering from diabetes and high blood pressure
and she is helpless and she is left at the mercy of the defendants who
leave no opportunity to make difficult the residence of the plaintiffs in
suit premises. On 15/02/2019 as directed by the Court, the plaintiffs
addressed letter dated 28/02/2019 to defendant no.1 and proposed the
name of gardener along with his police verification and other
documents. Inspite of it, defendants restrained the entry of the gardener
in suit premises and as such defendant no.1 and his wife continued with
their illegal conduct. Therefore, report dated 07/03/2019 was filed by
plaintiff and NC dated 22/03/2019 was also lodged by them. It is
alleged that defendant no.1 and his wife are obstructing use of her
room of plaintiff no.1. Therefore, plaintiff no.1 has installed CCTV
cameras in her room. It is alleged that defendant no.2 has been
entering the room of the plaintiff no.1 without consent of plaintiff no.1
and defendant no.1 is also threatening plaintiff no.1 of dispossessing
from the suit premises. It is alleged that on 19/03/2019 defendants
removed all the plant pots belonging to the plaintiffs from the garden
area from the suit premises. Again plaintiffs were required to knock the
doors of police and defendants informed that within next two days they
will place back the plant pots at the same place. Defendants have
contended that plant pots were moved for the purpose of measurement,
however it is alleged that such measurement has not been done. It is
further alleged that main door lock of the suit premises is changed by
defendants without providing duplicate keys to the plaintiffs. It is
alleged that defendants are having intention to disturb peaceful
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occupation and possession of plaintiffs over the suit premises. It is
contended that on 26/03/2019 due to locking of the door, plaintiff no.1
was required to wait outside the suit premises for half and hour. It is
alleged that defendants are obstructing the use of common areas from
the suit premises by plaintiffs.
2. I have heard the plaintiffs advocate and defendants'
advocate at length. I have carefully perused the pleadings and
documents annexed to the plaint. The copies of newspaper cuttings are
annexed to the plaint to show that plaintiff no.2 is habituated of
gardening and he has fond of gardening and therefore his photograph
was published in newspaper due to his hobby of gardening. In respect
of changing lock of main door of suit premises, it was argued that
defendants have changed the said lock with the intention to harass
plaintiff. Defendant no.1 has filed his reply and denied all the
allegations made in the notice of motion. According to defendant no.1
he is the owner of the suit premises and area of garden belongs to him.
Photographs of some plants are filed along with notice of motion and
photographs of some plants are on record. According to plaintiffs, those
plants were planted by plaintiff no.2 and therefore, defendants have no
right to remove the plant pots from the place at which they were.
Photographs are also filed on record to show that plant pots from some
places were removed. Photographs of one latch lock is also filed on
record. From the photographs of plants it cannot be ascertained that
plaintiffs have planted those plants. Merely because photograph of
plaintiff no.2 was published in newspaper, it cannot be said that
disputed plants were planted by plaintiff. This is the unique case in
which human being even has started claiming ownership over plants.
On the contrary it is the picture of today that no plants are existing in
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nature and human being is the only enemy of the plants. Admittedly,
suit premises is standing in the name of defendant no.1. Therefore,
except the personal household articles like clothes, ornaments few
utensils etc. all the articles from suit premises are necessary to be
presumed at this stage as the articles belonging to defendants.
Admittedly, plaintiffs are having permissive occupation over the suit
premises. As pleaded in the plaint, defendant no.2 had called plaintiff
no.1 for residing in suit premises and accordingly plaintiffs shifted to
suit premises long back in the year, 1971. It seems that since 1971 till
filing this suit there were cordial relations between plaintiffs and
defendants. Actually plaintiff no.1 and defendant no.2 are real sisters
and plaintiff no.2 and defendant no.1 are cousins. It seems that after
dispute started between parties to the suit they have reached to the
extent of claiming ownership over every articles from the suit premises
and plaintiffs are making allegations that defendant no.1 and his wife
are not allowing plaintiffs to use common area from the suit premises.
Admittedly, as per the sketch map annexed to the plaint, the suit
premises is jointly occupied by plaintiffs and if at all plaintiffs will
succeed in proving their right or interest in the suit premises it will be
difficult to divide the common area, garden area, doors etc. Any how
plaintiffs who have not filed any documentary evidence about their
right in suit premises only on the basis of statements made by defendant
no.1 before Hon'ble High Court, plaintiffs are intending that plaintiffs
should be permitted to create their rights in suit premises. While
deciding in notice of Motion No.3459 of 2018 I have already discussed
as to how plaintiffs are not entitled to claim their right in suit premises
for want of documentary evidence in respect of payment of
consideration of Rs.2,00,000/ for purchasing the suit premises. It is
pertinent to note here that plaintiffs have contended that they had
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appointed one gardener for taking care of disputed plants. However,
defendant no.1 and his wife have not allowed said gardener to enter
into the suit premises. At this juncture, it becomes necessary to point
out that it was possible for plaintiff to file at least affidavit of such
gardener before the Court in support of their case. Plaintiffs have not
filed any such affidavit which could have been the best evidence to
support plaintiffs case. Mere filing of NC cases or reports with police, in
my opinion is not sufficient to believe that all the allegations made by
plaintiffs are true mainly because initially the notice of motion taken
out by plaintiff was dismissed by the Court. Plaintiffs have claimed that
latch lock of main door of suit premises is changed by defendants,
however on which date it is changed is not explained. Further plaintiffs
have not pleaded that whether said lock was changed in their presence
and whether they had prevented defendant no.1 from changing such a
lock. It seems that merely on the basis of one statement made by the
defendant no.1 before Hon'ble High Court, now plaintiffs are taking out
one after another notice of motion to create their right in suit premises.
However, unless plaintiffs prove their right in suit premises they cannot
restrain the true owner i.e. defendant no.1 from enjoying his own
property. In such circumstances, I find that reliefs sought in this notice
of motion also cannot be granted to plaintiffs. Therefore, I proceed to
pass the following order.
O R D E R
Notice of Motion No.1474 of 2019 stands disposed off/dismissed.
Sd/
(K.P.NANDEDKAR)
07/06/2019 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 07/06/2019
Transcribed on : 11/06/2019
Signed by HHJ on : 14/06/2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14/06/2019 3.00PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgement/Order. 07/06/2019
Judgement/order signed by P.O on 13/06/2019
Judgement/order uploaded on 14/06/2019
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