Order 1

Order Details: Notice of Motion
Pdf Text: IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1269 OF 2018
IN
L.C. SUIT NO. 9166 OF 1999
Badrinarayan Ramkishore Tiwari .. Plaintiff
Versus
M/s Vishwabar Trust & Ors. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 6th December, 2018
Mr. Sasidharan, Ld. adv. for the plaintiff.
Mr. Pandey, Ld. adv. for defendant no.2.
Mr. Datta Pawar, ld. adv. for defendant no.11.
Mr. Kamble, adv. for defendant no.10/BMC.
O R D E R
1. This Nm is taken out by defendant no. 11 Jal Private Ltd for
dismissal of the suit and for rejection of plaint by allowing notice of
motion. Mr. Pankaj R. Pandya the authorised signatory of defendant
no. 11 has filed his affidavit in support of Nm. In said affidavit it is
contended that defendant no. 11 became aware about pendecny of this
suit in the first week of October 2016. Thereafter defendant no. 11
preferred Ch/s for impleading him as defendant as necessary party in
the suit. Said Ch/s was allowed plaintiff has carried out necessary
amendment and served copy of amended plaint upon defendant no. 11
on 25.04.2017. Thereafter defendant no. 11 has filed written statement
in the matter.
2. It is further mentioned in affidavit that this N/m is filed for
dismissal of suit under sec. 151 of CPC . It is contended that plaintiff
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has claimed title through adverse possession and in the plaint itself
plaintiff has admitted that he has derived title through Chandarakant
Desai and Mahatam Singh but has not produced any documents to that
effect. Plaintiff has stated that plaintiff has been put in possession by
some alleged legal heir of Chandrakant Desai but no documentary
evidence is filed to that effect. Plaintiff pleaded that he used to carry on
some business on suit property but plaintiff failed to produce any
licence or documents like receipt or licence etc in respect of said
business. Plaintiff has admitted that Mr. Khemchand Gorumal was legal
owner of suit property and Mr. Gorumal during his life time constituted
family trust defendant no. 1. It is further mentioned in affidavit that
suit property is part of CTS No. 463 which was originally owned by
Khemchand Gorumal who has created family trust/ private trust vide
deed of trust dated 07.01.1962. Said trust was named as Vishwambar
Trust. Gorumal conveyed, transferred and vested in said trust besides
his other properties, a portion of CTS No. 463. Mr. Vishwamabar
Mehrotra, Mrs. Lovina Mehrotra and Dr. Tara Tekchandani were
trustees of said trust.
3. It is further mentioned in affidavit that due to old age and
practical difficulties Trustees were unable to protect their interest in
respect of properties mentioned in trust deed. Therefore defendant no.
11 had talks with those trustees and offered good consideration for
properties of Trust. Thereupon the trustees decided to sell the trust
properties to defendant no. 11 and by conveyance deed dated
12.12.2005 said trust conveyed its property to defendant no. 11.
Symbolic possession of trust properties was given to defendant no. 11.
While executing above mentioned conveyance it was noticed that there
were some absolutely inadvertent unintentional mistakes therefore to
prevent any person having vested interest to middle in the matter and
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to remove the doubt in respect of transactions with trust defendant no.
11 registered deed of rectification dated 13.12.2010. As such defendant
no. 11 had acquired title of suit property and defendant no. 11 is having
legal title over suit property.
4. It is mentioned in affidavit that plaintiff has filed this suit
for title of the property only on the basis of adverse possession and
documents filed by plaintiff with plaint are not helpful to plaintiff in any
way. It is contention of defendant no. 11 that as per various judgments
of Hon'ble Apex Court even if plaintiff is found to be in adverse
possession, plaintiff cannot seek a declaration to the effect that adverse
possession has matured into ownership. Only if proceedings are filed
against him arraying him as defendant in such suits such defendant can
raise the plea of adverse possession. Hence according to defendant no.
11 plaintiff's claim is not maintainable. It is contended that adverse
possession allows a trespasser a person guilty of a tort or even crime in
the eye of low to gain legal title to land which he has illegally possessed
for 12 years. Doctrine of adverse possession has troubled a great many
legal minds and Hon'ble Apex Court opined that if protectors of law
become the grabbers of the property, people will be left with no
protection and there would be total anarchy in the entire country.
5. It is mentioned in affidavit that matter is fixed for recording
evidence and defendant No. 11 is recently added in the matter and he is
main contesting party as defendant no. 11 has purchased property from
defendant no. 1. It is admitted that delay is caused in taking out this
N/m, however no malafide intention can be attributed to defendant no.
11. If proceedings in suit will continue then defendant no. 11 and
other defendants will suffer from great hardship. Hence applicant has
prayed to allow the N/m.
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6. Plaintiff has resisted N/m by filing affidavit of reply of
Santkumar Badrinarayan Tiwari. In his affidavit Santkumar has
mentioned that contentions raised by defendant no. 11 in N/m are false
and those contentions are raised in collusion with defendant no. 2 to
usurp the rights of plaintiff in suit property. Collusion between
defendant no. 2 and 11 is apparent from the fact that defendant no. 2
has also simultaneously taken out another N/m. Present N/m is
nothing but abuse of process of law and therefore it is liable to be
dismissed. N/m is taken out at belated stage. Suit was filed in the year
1999. On 09.03.2015 issues were framed, plaintiff has also filed
affidavit of examination in chief and documents long back.
Admissibility of documents filed by plaintiff is already decided by Court
and defendant no. 2 has adjourned the matter on so many grounds for
cross examination of P.W.1. Instead of cross examining P.W.1
defendant no. 2 and 11 have now come with present N/m to protract
hearing of the matter. It is denied that Mr. Pankaj Pandya is
authorised signatory of defendant no. 11. It is further contented have
plaintiffs have interalia claimed title to the suit property by adverse
possession but it is not only one prayer in the suit. There are several
other prayers claimed by plaintiff and documents in support of claim
are also filed by plaintiffs. Therefore defendant no. 11 has made false
allegations. It is contention of plaintiff that they are both aware of the
fact that defendant no.1 executed conveyance in favour of defendant
no.11 but it is contention of plaintiff that on the basis of such
conveyance and incomplete Rectification Deed, defendant no. 11 cannot
claim right in the suit property which is lawfully possessed by plaintiffs
through defendant nos. 2 to 9 who have encroached upon it by putting
unauthorised construction. Without considering this, Court cannot
come to conclusion and defendant no. 11 is trying to interpret the law
as per his convenience. According to plaintiff defendants 1 to 9 are
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contesting suit since beginning. However defendant no. 11 has taken
out this N/m at belated stage therefore issue raised in this N/m cannot
be decided at this stage. With the help of those contentions plaintiff has
prayed to dismiss the N/m.
7. I have heard advocates for defendant nos. 2 and 11 and
Plaintiff's advocate at length. According to advocates for defendant nos.
2 and 11 in view of observations of Hon'ble Supreme Court in the case
between State of Haryana Vs. Mukesh Kumar and Ors. Reported in
(2011) 10 SCC 404, the plaint for declaration of ownership on the basis
of adverse basis is not maintainable. Advocate for defendant nos. 2 and
11 also referred order passed by Hon'ble High Court in Suit No.
1973/2010 and argued that in said suit, Hon'ble High Court brought it
to notice of plaintiff that suit for declaration on the basis of adverse
possession is not maintainable. Thereafter said suit came to be
withdrawn. It is further argued that disputed agreement dated
14.07.1961 and MA order are filed on record and on the basis of those
documents it becomes clear that Mahatam Singh was not owner of suit
property but defendant no. 1 was owner of suit property. Said
agreement is not registered,it is executed on stamp of Rs. 1.50 paise
hence according to defendant nos. 2 and 11 this suit is necessary to be
dismissed. It is further argued that on the basis of conveyance deed
dated 12.11.2005 defendant no. 11 has become owner of the suit
property as defendant no. 1 conveyed said property to defendant no.
11. Hence on the basis of disputed agreement filed by plaintiff no
relief can be granted in favour of plaintiff. It is further pointed out that
plaintiff's claim is not maintainable because plaintiff himself has
pleaded that Khemchand Gorumal the owner of suit property
constituted private trust and transferred suit property to said trust.
According to defendant no. 2 prayer (a) from the plaint is only
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substantial prayer and if that prayer will not remain nothing remain in
the suit.
8. Plaintiffs adv. argued that N/m Nos. 1269/18 and
1284/18 are moved after plaintiff has filed affidavit of evidence and
after documents are exhibited. It is argued that besides declaration by
way of adverse possession, other reliefs are also claimed by plaintiff in
this suit hence suit cannot be dismissed without giving chance to
plaintiff to adduce their evidence.
9. For decision of this N/m after giving serious consideration
to the arguments advanced at bar, I have perused the plaint prayer
clause (a) which is in respect of for plaintiff's declaration as owner of
suit property on the basis of adverse possession plaintiff has also prayed
for mandatory injunction against defendant no. 2 Ram Ganesh Mukut
Singh for direction to him for demolition of all unauthorised
constructions including hoardings from suit property. Further plaintiff
has alternatively prayed for mandatory injunction directing defendant
no. 10/BMC to remove all unauthorised structures and hoardings from
suit property. As such besides declaration on the basis of adverse
possession plaintiff has also sought reliefs of mandatory injunction
against defendant nos. 2 and 10. I have perused the issues framed by
my learned predecessor at Exh. 7. By first issue Court has casted the
burden on the shoulders of plaintiff to prove that they have become
owner of suit property by way of adverse possession. The issues further
show that the burden of proving the fact the constructions of suit
property are unauthorised is also casted on the shoulders of plaintiffs.
On the contrary issue no. 4 shows that burden of proving the fact that
defendant no. 2 is possessing suit property is casted on the shoulder of
defendant no. 2. Even if, the plaint for declaration on the basis of
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adverse possession is not maintainable, plaintiffs total claim cannot be
dismissed because it is necessary to give plaintiff opportunity to prove
his claim for mandatory injunction. In such circumstances, in view of
the Order passed by Hon'ble High Court in appeal No. 1973/2010 this
Court can point out plaintiff that plaintiff's claim for declaration on the
basis of adverse possession is not maintainable and this Court can point
out plaintiffs to think for deleting prayer clause (a) from the plaint and
further for deleting the pleadings from the plaint made in respect of
relief of declaration on the basis of adverse possession. However, at
this stage, when plaintiff has filed the affidavit of evidence long back on
06.07.2015, neither plaint can be rejected nor plaintiff's total claim can
be dismissed without giving opportunity to plaintiff to prove at least his
case in respect of mandatory injunction. Further this suit is filed in the
year 1999 and according to defendant no. 11 the conveyance of suit
property was executed in favour of defendant no. 11 on 12.12.2005. As
such, alleged conveyance between defendant no. 1 and defendant no.
11 is the conveyance executed in the pendency of this suit and on this
ground also when defendant no. 1 has introduced defendant no. 11 to
the title of suit property by executing alleged conveyance deed, I find
that Nm cannot be allowed. Hence I proceed to pass following order.
O R D E R
1. Nm No.1269/18 stands disposed of/ dismissed.
(K.P.Nandedkar)
NDPS Special Judge,
City Civil & Sessions Court,
06.12.2018 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
10/12/2018 03.40pm Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 06/12/2018
Judgment/order signed by P.O on 10/12/2018
Judgment/order uploaded on 10/12/2018
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