Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1302-2020 1 S.C. Suit No. 81-2021
MHCC010038952020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1302 OF 2020
IN
S.C. SUIT NO. 81 OF 2021
Vijaya Vijay Kudtarkar & Others ] ...Plaintiffs.
Versus
Smt. Ranjana Rajan Kudtarkar & Others ]…Defendants.
Appearance:
Advocate Raj Naik h/f. Sanjay Dhadam for Plaintiff.
Advocate N.D. Jaywant for Defendant Nos. 1 to 3.
CORAM : V.G. RAGHUWANSHI
JUDGE, (C.R.NO.08)
DATE : 02/04/2024
ORDER
1) Plaintiffs filed this suit for declaration and injunction in
respect of suit property, a room No.23, first floor, Miranda chawl, Shivaji
Park, 177, N.C. Kelkar Chowk, J.L. Vaidya Road, Mumbai-28 having new
address – 602, 6th floor, Avadhoot CHS, Shivsena Bhavan, Dadar West,
Mumbai (suit property).
2) Plaintiffs contended that one Shankar Kudtarkar left for his
heavenly abode in 1988 leaving behind his widow Parvatibai and
children. They had three sons (Vijay, Ajit and Rajan) and three
daughters (Pushpa, Nandini and Meena). Rent receipts of suit property
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were in the name of Shankar. After death of Shankar, rent receipt was
transferred in name of Parvatibai some time in 1989. Plaintiffs were
residing with Parvatibai till 2003 in suit property. But due to insufficient
space in the suit property and increased necessity of the family,
Parvatibai was forced to search for alternate accommodation at
Sakinaka. Parvatibai breathed her last in a house at Sakinaka. Her sons
(Vijay, Ajit and Rajan) and daughters (Nandini and Meena) are not
alive. Plaintiffs are legal heirs of Vijay and Ajit. Defendants No.1 to 3
are legal heirs of deceased Rajan. Defendant No.4 is Trust, defendant
No.5 to 12 are trustees thereof. Defendant No.13 is MHADA. Plaintiffs
were also residing at Sakinaka with Parvatibai.
3) After demise of Parvatibai, plaintiffs started residing in suit
property from February 2004 to 2006. Thereafter, due to lack of
sufficient space and quarrels between plaintiffs and defendants,
plaintiffs were forced to shift to another place on leave and license
basis. Plaintiffs were residing in Hindu Undivided Family till December
2002.
4) Plaintiffs learnt that defendants are trying to transfer suit
property by manipulating and fabricating false documents. Suit
property has to be partitioned amongst all legal heirs of Parvatibai.
Defendants has no right to deal with interest/share of plaintiffs in suit
property. Plaintiffs forbidded defendants to do so.
5) Plaintiffs and defendants colluded and prepared fake rent
receipts and agreement dated 4/6/2011 to grab the suit property. That
agreement is void-ab-initio is not binding on plaintiffs. Plaintiffs filed a
suit RAD suit No.284/2007. Those dismissed on 17/12/2019 on ground
that there is no relationship of tenant and landlord or licensor and
licensee in view of the permanent alternate accommodation agreement
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dated 4/6/2011 bearing registration No.4416/3 before Sub-Registrar,
Mumbai between defendant No.1 and defendant No.4 as Trust. In the
same case defendant No.1 filed her evidence along with documents. At
that time plaintiffs came to know of permanent alternate
accommodation agreement dated 4/6/2011.
6) Plaintiff was surprised by said agreement. Defendant No.1
was shown as occupier of suit property. Actually defendant alone was
not the only occupier of the suit property, plaintiffs and other family
members of Parvatibai were also occupier of the suit property.
Defendant No.1 was allowed to stay in suit property as a consequence
of family arrangement. After judgment of small cause court plaintiff
issued notice to defendants and asked for their share in suit property.
Defendant did not reply to that notice. Therefore, plaintiffs approached
this court challenging permanent alternate accommodation agreement.
They prayed for declaration that permanent alternate accommodation
agreement is null and void and it is not binding upon plaintiffs
alongwith consequential reliefs of injunction.
7) Plaintiffs presented this notice of motion along with suit for
staying operation of permanent alternate accommodation agreement
dated 4/6/2011 and restraining defendants from acting upon in any
manner pursuant to purported gift deed dated 20/8/2007 in respect of
suit property.
8) Defendants No.1 to 3 filed their written statement opposed
this notice of motion. They conceded that Parvatibai was tenant of suit
property i.e. room No.23 in Miranda chawl. She passed away in 2003.
Defendants were the only family members of Parvatibai residing with
her in said old room no.23 at the time of her death. Therefore,
defendants only were entitled to tenancy rights of suit premises.
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Therefore, defendant Nos. 4 to 12 accepted defendant No.1 as tenant in
respect of old room No.23. As defendant No.1 was only occupier/tenant
of the old room No.23, defendant No.4 to 12 entered into agreement of
permanent alternate accommodation with her. Pursuant to said
agreement defendants were put in possession of permanent alternate
accommodation i.e. flat No.602, in lieu of tenancy rights in respect of
old room No.23.
9) Plaintiff's claim of tenancy was rejected by small causes
court, Bombay in RAD suit No.284/2007 filed by plaintiffs for
declaration that plaintiffs were joint tenants of old premises. Plaintiffs
also sought declaration in respect of new flat also. However, it was
rejected by small cause court. The small cause court framed issue
“whether allotment of new tenement to defendant No.1 is legal and
valid?” That issue was decided by small cause court into affirmative.
10) Defendants further submitted that this suit is liable to be
dismissed for non joinder of necessary parties as plaintiff did not join all
legal heirs of Parvatibai in this suit. It is barred by limitation because
plaintiffs clearly stated in plaint affirmed on 12/12/2006 that they were
aware of the redevelopment of Miranda chawl and about permanent
alternate accommodation being provided to defendant No.1 in lieu of
her tenancy rights in respect of old room No.23. Defendants also stated
in their written statement dated 18/4/2007 in RAD suit No.284/2007,
regarding allotment of permanent alternate accommodation to
defendant No.1 in lieu of her tenancy rights in respect of her old room
No.23. Old room No.23 is not in existence. Old premises was
demolished and new building is constructed thereon. Defendants were
in its exclusive use and occupation of old room No.23, said premises
was redeveloped and new building was constructed. These defendants
were entitled to tenancy rights as they were living with original tenant
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Partvatibai at the time of his death. So they were accepted as tenants of
old room No.23 and rent receipt was issued in name of defendant No.1.
11) Defendants submitted that plaintiffs left suit property on
their own much prior to death of Parvatibai. Defendant No.2 and other
daughters of Parvatibai left old room No.23 after their marriages.
Parvatibai was residing with defendant No.1 to 3 in old premises (room
No.23). However, plaintiff No.1 and 3 took her to their premises at
Sakinaka with ulterior motives. Defendant No.1 used to pay rent of old
premises i.e. old room No.23 in her possession. Ajit i.e. husband of
plaintiff No.3 and father of plaintiff No.5 and 6 left suit premises along
with his family i.e. plaintiffs No.3 to 6 started residing at address in the
title clause of the plaint. Vijay i.e. husband of plaintiff No.1 and father
of plaintiff No.4 also started residing at the address mentioned in title
clause of plaint. During lifetime of Parvatibai new flat No.602 has been
allotted to defendant No.1 on ownership basis in lieu of old room
No.23. Defendant No.1 is in use and occupation of said new flat
No.602. Defendants denied that they are trying to transfer suit
premises. Plaintiffs denied that plaintiff has interest or right in the suit
property. Defendant No.1 is sole owner of suit property. She has every
right to deal with the same as owner thereof. Defendants No.1 to 3
admitted family tree and relationship. There was no collusion between
defendant No.1 to 3 and Trust. Agreement between defendant No.1 and
4 is lawful. Other contentions of plaintiff are prayed for rejecting this
notice of motion.
12) I have heard Ld Counsels for defendants and perused notes
of arguments submitted by plaintiffs. Ld. Counsel of defendants drew
my attention towards prayer clause (b) of notice of motion and
submitted that plaintiff is seeking prohibitory injunctions in respect of a
gift deed dated 30.8.2007 in respect of room No.23 (old room). He
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submitted that there is no whisper about such gift deed in entire plaint.
He also drew my attention towards para No.1 of written statement filed
by defendants in which there is averment about an agreement of
permanent alternate accommodation dated 4.6.2011 with defendant
No.1 and para No.24 of judgment in RAD suit No.284/2007 (Exh.D),
page no.94 of plaint. In said para Ld Judge of small cause court
discussed written statement filed by defendant No.4 and 6 to 12 i.e.
defendants (Trust and Trustees) in this suit. Ld. Judge of small cause
court mentioned that the Trust and trustees stated in their written
statement about agreement of permanent alternate accommodation.
They also contended that they never suppressed such agreement and
defendant No.1 was allotted new premises on ownership basis, she took
possession thereof and was residing therein. By virtue of ownership
agreement executed between the Trust and defendant No.1 Ranjana the
relationship of landlord and tenant came to an end and small cause
court sees to have jurisdiction to decide that suit. Ld. Counsel for
defendant submitted that agreement in respect of which plaintiff seeks
declaration is already acted upon. He further drew my attention
towards issues in RAD suit No.284/2007 and para No.34, 50 and 51 of
the judgment to canvass that plaintiffs failed to prove that they are
tenants of the suit premises and admittedly MHADA recognized
defendant No.1 to 3 as occupants of of the suit property (room no.23)
and accordingly prepared the list. Except Rishikesh (plaintiff No.4 in
this suit) other plaintiffs did not take objection for such recognition.
Plaintiffs did not take steps to challenge said recognition before proper
forum even after lapse of more than 12 years. He further submitted that
cooperative housing society was formed. Defendant No.1 is member
thereof. Therefore, prayer (a) is now redundant. Suit property is
governed by provisions of Maharashtra Rent Control Act and not by law
relating to HUF. There is no question of coparcenary in this matter. He
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prayed for rejecting this notice of motion.
13) On the other hand, plaintiffs submitted that they pray for
injunction restraining defendant No.1 to 3 from transferring or creating
third party interest in the suit property. They have challenged
agreement of permanent alternate accommodation. They reiterated
their pleadings and harped upon property of HUF and interest of
plaintiff in old room no.23 and as a consequence thereof, they are also
having interest in the suit property.
14) I have considered submissions of both sides. The plaintiff
was not careful while drafting his notice of motion. The plaintiffs
mentioned gift deed dated 30.8.2007 which was never pleaded in the
plaint. He should have been careful while drafting his notice of motion.
Anyway I will consider this prayer as a prayer for injunction restraining
defendants from acting upon the agreement of permanent alternate
accommodation.
15) In this case even if it is held that plaintiffs came to know of
permanent alternate accommodation after perusing the written
statement dated 18.4.2007 of defendants in RAD suit No.284/2007, the
suit appears to be time barred. Though, limitation is a mixed question
of law and facts but, if pleadings and documents on record prima facie
show that suit is barred by limitation and plaintiff will not be able to get
final relief then relief of temporary injunction cannot be granted.
Moreover, the admitted family tree shows that all legal representatives
of Parvatibai and Vijay are not joined in this suit. There is inordinate
delay in filing this suit and this can be a ground to turn down prayer of
plaintiff to grant temporary injunction. Plaintiff claims declaration and
injunction on the basis of inheritance and rights of coparcener. But, here
the matter pertains to tenancy and section 7 (15) (d) of Maharashtra
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Rent Control Act plays pivotal role in determination of such question.
Ld. Small cause court already held that plaintiffs failed to prove that
they were tenants in the suit property. In such circumstances, plaintiffs
failed to prove prima facie case and hence, they are not entitled to
exercise of discretion in their favour. Hence, I pass following order:-
ORDER
1) Notice of Motion No.1302/2020 is rejected.
2) Notice of Motion No.1302/2020 stands disposed off accordingly.
Date : 02/04/2024.
(Shri. V.G. Raghuwanshi)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & directly typed on: 02/04/2024.
Signed on :02/04/2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
08/04/2024 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI V.G. RAGHUWANSHI (Court
Room No.08)
Date of Pronouncement of
JUDGMENT/ORDER
02/04/2024
JUDGMENT/ORDER signed by P.O.
on
02/04/2024
JUDGMENT/ORDER uploaded on 08/04/2024
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