Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1310/18 (L.C.S. No.611/17)
MHCC010041512018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1310 OF 2018
IN
LONG CAUSE SUIT No.611/2017
Mulund Shital Darshan
C.H.S. Ltd. … Plaintiff
- Versus -
1] Chaarudatt Developers &
Systems Pvt. Ltd.
2] M/s. Yash Corporation
3] Municipal Corporation of
Greater Mumbai
4] Executive Engineer ... Defendants
Appearance :-
Mr. R. G. Bhat, Advocate for plaintiff.
None for defendants No.1 and 2.
Mr. Om Suryavanshi, Advocate for defendants No.3 and 4/M. C. G. M.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 10/01/2024.
O R D E R
. This is suit for declaration and permanent injunction
restraining defendants No.1 and 2 from demolishing compound wall
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2 N/M. No.1310/18 (L.C.S. No.611/17)
and restraining defendants No.3 and 4 B. M. C. from sanctioning the
plan and/or issuing completion certificate or occupancy certificate for
structure on C. T. S. No.500 of village Mulund and the plaintiff has
taken out Notice of Motion for temporary injunction under Order-XXXIX
Rule-1 of The Code of Civil Procedure (in short the C. P. C.) restraining
defendants No.1 and 2 from demolishing compound wall. The plaintiff
not pressed prayer against defendants No.3 and 4.
2] It is contended that defendants No.1 and 2 is the Company
and partnership firm and in 1980 M/s. Shital Constructions constructed
building on C. T. S. No.502 of village Mulund and sold the flats to
members of the plaintiff-society. By virtue of Conveyance Deed dated
28/7/2015 between the M/s. Shital Constructions as a builder and
Damodar Mukadam as a owner on one part and the plaintiff-society as a
purchaser on second part, the society became absolute owner of the
land with building constructed on C. T. S. No.502 of Mulund.
3] It is further stated that defendant No.2 started construction
on land bearing C. T. S. No.502 and it claimed the right of way over the
land owned by the plaintiff bearing plots No.502 and 504. It is informed
to the plaintiff that by way of agreement dated 30/12/1981 M/s. Shital
Constructions i.e. the builder has granted right of way to plot C. T. S.
No.500 through C. T. S. No.502 and 504 and Kishor Mota had acquired
right of assess and said fact was reflected in Agreement for Sale
between M/s. Shital Constructions and flat purchasers. The plaintiff
came to know that defendant No.1 has executed deed of right of way on
23/11/2006 and granted right of way through C. T. S. No.504 and 506,
owned by the plaintiff. Defendants have forged and manipulated
documents which is termed as document of title/way of assess.
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Defendants No.1 and 2 also got forged plan to show the assess road of
5.34 meters width passing through C. T. S. No. 502 and 504. The
plaintiff-society is owner of C. T. S. No.502 and 504 and defendants
No.1 and 2 have no right or interest or way through C. T. S. No.502 and
504. However, on the basis of fabricated documents defendants No.1
and 2 are claiming right of way through the land of the plaintiff. Hence
the plaintiff constrained to file suit and taken out Notice of Motion.
4] Defendants No.1 and 2 have appeared but not filed reply to
Notice of Motion hence by order dated 16/1/2020 Notice of Motion, is
heard without reply of defendants No.1 and 2.
5] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiff has made out
prima
facie case ? . . . Yes.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . Yes.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . Yes.
4) What order ? . . . Notice of Motion is
made absolute.
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- :: R E A S O N S ::-
AS TO POINTS No. 1 TO 3 :-
6] The plaintiff filed various documents
viz. registration
certificate, agreement, plan, City Survey Plan, plan by Unique Design,
reply, notice, photographs, deed of right of way, letter dated 25/8/2016,
resolution etc.
7] Learned advocate for the plaintiff submitted that
defendants No.1 and 2 are Company and Partnership firm respectively.
In 1980 or prior to it, M/s. Shital Constructions Co. constructed
building on land bearing C. T. S. No.502 and flat purchasers purchased
the flats and society of the purchasers i.e. plaintiff-society came to be
registered. However, by deed of right of way which is false and
fabricated M/s. Shital Constructions Co. transferred alleged right of way
to defendants No.1 and 2 through C. T. S. No.502 and 504, which is
owned by the plaintiff-society. Defendants No.1 and 2 have fabricated
documents and plants to show that right of way has been granted to
defendants. The documents i.e. deed of transfer of right etc. are false
and fabricated and on the basis of these documents the defendants No.1
and 2 are claiming right of way through the land owned by plaintiff-
society and they threatened to demolish compound wall of plaintiff-
society. In his submission, if temporary injunction is not granted
defendants No.1 and 2 will demolish compound wall and it will cause
danger to security of inmates and it will cause injury to legal right of
enjoyment of property of the plaintiff-society.
8] It is important to note that defendant No.2 appeared
through advocate Mr. Pawar and made statement that defendant No.2
would not demolish wall which is in existence between C. T. S. No.500
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belonging to defendant No.2 and C. T. S. No.502 and 504 belonging to
plaintiff-society and said statement has been accepted. It is contention
of the plaintiff-society that C. T. S. No.502 and 504 of Mulund village is
owned by the society and defendants No.1 and 2 have no any right over
land of society and on the basis of false and fabricated documents
defendants No.1 and 2 are claiming right over the land owned by
society. The Notice of Motion is supported by affidavit of the plaintiff.
Defendants No.1 and 2 not filed say and contested Notice of Motion.
Thus, the contentions of the plaintiff remained unchallenged. Thus, I
hold that the plaintiff has made out
prima facie case for grant of
temporary injunction as prayed against defendants No.1 and 2. Balance
of convenience lies in favour of the plaintiff. If temporary injunction is
refused it will suffer irreparable loss or injury. Accordingly, I answer
points No.1 and 2 in the affirmative and in answer to point No.4 pass
following order :-
O R D E R
1] Notice of Motion is hereby made absolute in terms of prayer
clause (a).
2] The plaintiff has not pressed relief in prayer clause (b) against
defendant B.M.C.
Date : 10/01/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
22/01/2024 03:05 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
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6 N/M. No.1310/18 (L.C.S. No.611/17)
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 10/01/2024
ORDER Typed on 20/01/2024
ORDER signed by P. O. on 22/01/2024
ORDER uploaded on 22/01/2024
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