Interim Order 1

Order Details: Notice of Motion
Pdf Text: NM 2630/18 in SU 1364/18 .. 1 .. Order
CNR No. MHCC010087462018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2630 OF 2018
IN
SUIT NO. 1364 OF 2018
Krishnabai Sitaram Gorule ...Plaintiff.
V/s.
Waman Sitaram Gorule & Anr. ...Defendants.
Appearances:
Learned Adv. Mr. Chetan Manthanwar for plaintiff.
Learned Adv. Mr. S.B. Patil A/w. Sanjay P. Patankar for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 20th March, 2019.
: ORAL ORDER :
1. The plaintiff has taken out this Notice of Motion and has
requested to grant interim relief pending hearing and disposal of the
suit. The interim relief sought for is to grant temporary injunction,
restraining the defendants from dealing with, disposing of, creating any
third party rights and/or inducting any third party in respect of suit
premises.
2. The plaintiff's case may be stated as under:
The plaintiff has described the suit premises as house at A15/R,
No.5 Deonar Municipal Colony, Govandi, Mumbai43, admeasuring 150
sq. ft. According to the plaintiff, the suit premises was owned and
possessed by her deceased father Sitaram Gorule. The defendant No.1 is
son and defendant No.2 is daughter of said Sitaram Gorule. Sitaram
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Gorule has died on 22.08.2005, leaving behind him, his wife Shantabai,
daughter Krishnabai (plaintiff), daughter Nalini, Son Waman(defendant
No.1), daughter Lila(defendant No.2) and Ramchandra Sitaram Gorule.
The deceased Sitaram Gorule has nominated seven persons mentioned
in paragraph No.7 of the plaint, including the plaintiff and plaintiff's
mother Shantabai and other brothers and sisters of the plaintiff as
nominees, in respect of the suit premises. The said nomination letter is
dated 08.04.1964, which is filed with the plaint as exhibitD. Plaintiff's
mother Shantabai Gorule has also died on 22.05.2008. Presently, the
plaintiff and defendants No.1 and 2 are the only legal heirs to inherit
the aforesaid suit premises. The defendant No.1 is trying to create third
party rights in the suit premises. He has no right to deal with the suit
premises to the exclusion of the plaintiff. According to the plaintiff, she
has 1/3rd share in the suit premises. Therefore, the plaintiff has filed the
instant suit for separation of her 1/3rd share in the suit premises. By way
of this Notice of Motion, the plaintiff has requested to grant interim
relief as described herein earlier.
2. The defendants have filed affidavit of defendant No.1 and have
opposed the Notice of Motion. They have admitted that deceased
Sitaram Gorule was their father and Shantabai Gorule was their mother.
They have also admitted that Shantabai Gorule was mother of the
plaintiff also. However, they have denied that the plaintiff was born to
Shantabai Gorule from their father Sitaram Gorule. According to the
defendants, their mother Shantabai was married to one Shripat Gawde,
from whom the plaintiff was born to their mother. After death of
Shripat Gawde, the mother Shantabai married to defendant's father
Sitaram Gorule. The plaintiff and Shantabai then started living with
deceased Sitaram Gorule. The suit premises was belonging to deceased
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NM 2630/18 in SU 1364/18 .. 3 .. Order
Sitaram Gorule i.e. father of the defendants. The plaintiff is not
biological daughter of defendant's father and, therefore, she has no
right, title or interest in the property left by the deceased father of the
defendants. Defendants have admitted that till her marriage, the
plaintiff resided with the parents of the defendants in the suit premises.
However, she has no right to inherit the property and, therefore, she
has no right to claim share in the suit premises. Therefore, according to
the defendants, the suit and the Notice of Motion are liable to be
dismissed. In the affidavit, the defendant No.1 has further stated that
the suit premises is tenanted premises and it is not owned by their
father. After death of their deceased father Sitaram Gorule, the
defendant No.1 has been possessing and residing in the suit premises
alongwith his family members and he is paying the rent to the landlord
i.e. the Bombay Municipal Corporation(BMC). For all these reasons, the
defendants have pleaded that Notice of Motion is liable to be dismissed.
3. It appears that the plaintiff has filed affidavit in rejoinder and has
stated that her biological father was Shripat Gawde and her biological
mother was Shantabai Gorule. Her biological father, mother and she
herself and her brother Tukaram Shripat Gawde were staying in Gawari
VillageWadala. The said house of Gawari was purchased by plaintiff's
biological father Shripat Gawde. Shripat Gawde died leaving behind
him, the plaintiff, her mother Shantabai and brother Tukaram. After
death of Shripat Gawde, plaintiff's mother Shantabai married to Sitaram
Gorule. After that marriage, Sitaram Gorule started residing with the
plaintiff and her mother, in the aforesaid house at Gawari Village,
Wadala. After plaintiff's mother married with Sitaram Gorule, the said
Sitaram Gorule become father of the plaintiff and her brother Tukaram
and in this way, they were residing together. Somewhere in the year
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1987, the sister Nalini was born. In the year 1960, the Collector has
issued notice to the occupants of the Gawari Village, Wadala to vacate
their houses and in lieu thereof, the Collector allotted rooms. In respect
of plaintiff's house at Gawari Village, Wadala, the suit premises was
allotted at Deonar Municipal Colony, Govandi in the year 1961.
Thereafter, Sitaram Gorule, Shantabai Gorule, plaintiff's brother
Tukaram and sister Nalini shifted to the suit premises. The said
premises was recorded in the name Sitaram Gorule, as he was the head
of the family, after his marriage with plaintiff's mother. The plaintiff got
married in the year 1968 and was staying in the suit premises alongwith
her husband. Her three children were born in the suit premises. The
school leaving certificates have recorded this fact. In the year 1992, the
plaintiff's family shifted to another house and defendant No.1 alongwith
his family continued to reside in the suit premises. Thus, according to
the plaintiff, she has a legal right in the suit premises, in the aforesaid
circumstances.
4. I have heard the arguments advanced by the parties. Both of them
have referred to their respective pleadings as noted herein earlier.
I have examined their submissions in the light of the pleadings and the
documents on record. Following points arise for determination on
which I record my findings as under for the reasons to follow :
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In Affirmative
2. Whether the plaintiff has balance of In Affirmative
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POINTS FINDINGS
convenience in his favour ?
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In Affirmative
4. What order? The Notice of Motion is
allowed in terms of the
operative order being
passed herein below.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
5. It is not disputed that the mother of plaintiff and defendants is
common i.e. Shantabai Gorule. After filing of the rejoinder affidavit by
the plaintiff, it is also not disputed that plaintiff's mother Shantabai
Gorule was married to one Shripat Gawde and from Shripat Gawde, the
plaintiff, her brother Tukaram were born to Shantabai. Admittedly, the
said Shripat Gawde has died and after his death, the defendant's father
Sitaram Gorule married to Shantabai. The question is whether the suit
premises was belonging to Sitaram Gorule alone and whether the
plaintiff has any right to inherit the property of Sitaram Gorule. In
respect of these questions, the plaintiff appears to have raised debatable
issues and at this interim stage, these issues cannot be conclusively
decided. For deciding these issues, the parties will have to be given
opportunities to adduce evidence. However, prima facie, the plaintiff
appears to have interest in the suit premises, even if, it is considered
that Sitaram Gorule was occupier of the property and being not
biological father of the plaintiff, the plaintiff is entitled to inherit the
suit property. It is because, one thing is clear that Shantabai Gorule was
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admittedly biological mother of plaintiff and defendants. After death of
Sitaram Gorule, Shantabai Gorule also inherited the property and
plaintiff being biological daughter of Shantabai Gorule, is entitled to
claim some share in the property of Shantabai Gorule. Moreover,
property appears to be tenanted premises. Still, the tenancy rights in
respect of the suit premises can be claimed by the parties and hence, the
submissions of the defendants that the suit premises is not owned by
anybody except Municipal Corporation, would not make any difference
to the plaintiff to claim interest in the tenancy rights pertaining to the
suit premises. The plaintiff has prima facie case that she has interest in
the property alongwith the defendants and, therefore, it is necessary to
preserve the premises till disposal of the suit. If the property is allowed
to be dispossessed off or alienated by the defendants, the rights of the
plaintiff would be prejudiced.
6. For all these reasons, I hold that the plaintiff has prima facie case
and balance of convenience in her favour. She would suffer irreparable
loss, if temporary injunction is not granted, restraining the defendants
from creating third party interest in the suit premises or otherwise,
dealing with the suit premises for inducting any third party in the suit
premises. Accordingly, I have answered points No.1,2 and 3 in
affirmative and I hold that in the aforesaid terms, the Notice of Motion
will have to be allowed and accordingly, I have answered point No.4.
Hence, I pass the following order.
: O R D E R :
1. The Notice of Motion No.2630 of 2018 is hereby allowed in
the following terms.
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(i) Temporary injunction is granted pending hearing and disposal of
the suit, restraining the defendants from creating third party interest in
the suit premises and alienating the suit premises to any third party and
also from inducting any third party in the suit premises.
2. In these terms, the Notice of Motion stands disposed off
accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 20.03.2019. City Civil Court, Gr. Mumbai
Dictated on : 20.03.2019.
Transcribed on : 22.03.2019.
Signed on : 22.03.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22.03.2019, at 3.28 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 20.03.2019
Judgment/order signed by P.O. on 22.03.2019
Judgment/order uploaded on 22.03.2019
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