Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: S.C.Suit No. 1308/2020. 1 Ex-parte Judgment (Exh.13).
MHCC010043142020
Presented on : 01-10-2020
Registered on : 01-12-2020
Decided on : 21-03-2023
Duration : 2 years, 5 months, 20 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
S. C. SUIT NO. 1308 OF 2020
EXHIBIT NO.13.
1. Mr. Rukmangada Babu Salian, )
son of Babu Salian )
aged 68 years, Occ: Retired )
now residing at B1803, )
Raheja Waterfront Atlantic, )
Chitrapura Temple Road, Kulai, )
Mangaluru – 575014, K.S. )
2. Mr. Bhassker Salian )
Son of Babu Salian )
Aged 61 years, Occ: Retired )
Residing at C103, Highland Harmony )
Coop. Hsg. Society Ltd, Mahavir Nagar, )
Kandivali (W), Mumbai – 400067 )
3. Ms. Sarojini Babu Salian, now known as )
Mrs. Sarojini V. Amin, )
daughter of Babu Salian, )
aged 71 years, Occ: Housewife )
residing at 3/7, Shradhanand Coop. )
Hsg. Society, Pendse Nagar, )
Opp. Achailkar Bldg., V.P.Road, )
Dombivli (E), Thane Dist – 421201 )
4. Ms. Netravati Babu Salian, now known ) (Deleted since
as Mrs. Swati Amin Khadye, ) deceased)
Daughter of Babu Salian, )
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S.C.Suit No. 1308/2020. 2 Ex-parte Judgment (Exh.13).
Aged 65 years, Occ: Housewife )
Residing at R.No. 602, 6th Floor, )
Dwarkamai Coop. Hsg. Society, )
Shani Mandir Chowk, AWing, )
Saat Rasta, Jacob Circle, )
Mumbai – 400011 )
4(a) Amin Gajanan Khadye )
Aged 68 years Occ: Nil )
4(b) Meghna Amin Khadye )
Aged 43 years, Occ: Nil )
4(c) Rashmi Amin Khadye )
Aged 37 years, Occ: Nil )
Residing at R.No. 602, 6th Floor, )
Dwarkamai Coop. Hsg. Society, )
Shanti Mandir Chowk, AWing, )
Saat Rasta, Jacob Circle, )
Mumbai – 400011 )
5. Ms. Kumudidni Babu Salian, now known )
as Mrs. Vijaylaxmi Dhagga, )
daughter of Babu Salian, )
aged 52 years, Occ: housewife, )
residing at F1, Gokul Krishna, )
2Aditya Vihar Scheme No.8, )
Mahadev Nagar, Near Vaishali, )
Jaipur – 302021, Rajasthan State )...Plaintiffs
Versus
Mrs. Lalitha Shekar Salian )
Widow of late Shekar Babu Salian, )
Aged 55 years, Occ: Housewife, )
Residing at C/o Asha Kanchan, )
10/701, Pleasant Park, Shree Shashwat )
Complex, Mira Bhayandar Road, )
Mira Road (E), Thane Dist. )
Or having address at Flat No. 502, fifth floor, )
Tiranga Society, 176/178, Maruti Lane, )
Off. Bora Bazar Street, Fort, Mumbai GPO, )
Mumbai – 400001 )...Defendant
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S.C.Suit No. 1308/2020. 3 Ex-parte Judgment (Exh.13).
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 21st MARCH, 2023.
SUIT FOR PERMANENT INJUNCTION AND COMPENSATION
Shri Jagdish Hegde, Advocate for the plaintiffs.
None for the defendant (exparte).
JUDGMENT
(Delivered on 21st March, 2023)
1. This is a suit for permanent injunction and compensation.
2. Case of the plaintiffs, in brief, is as under :
The plaintiffs are legal heirs of their deceased father Babu
T. Salian. The defendant is widow of Shekar Babu Salian, brother of
plaintiffs, also legal heir of Babu T. Salian. Babu T. Salian had acquired
rights in respect of residential premises Room No.182, 184, on the 2nd
floor, Haji Kasam Building (also known as Chanawala Building)
176/178, Maruti Lane, Bora Bazar Street, Fort, Mumbai – 400 001
along with exclusive use, possession and enjoyment thereof([henceforth
referred to as, "the original residence").
3. The plaintiff's father and mother with their seven children
were residing and enjoying possession of the original residence. All
children of their deceased parents were born, brought up and educated
at the original residence. Due to dilapidated condition and since the
back portion of the said Haji Kasam building was collapsed, Mumbai
Building Repairs and Reconstruction Board, Mumbai [unit of MHADA]
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S.C.Suit No. 1308/2020. 4 Ex-parte Judgment (Exh.13).
undertaken the repair and redevelopment work of the said building.
Accordingly, original residence of the plaintiffs was handed over to the
said authority along with all other occupants therein for redevelopment
as provided under the law.
4. Mumbai Building Repairs and Reconstruction Board,
Mumbai [unit of MHADA] had provided a temporary alternate
accommodation to the deceased father of the plaintiffs in lieu of said
original residence until the completion of redevelopment of the said
building at 124/3617, Kannamwar Nagar No.2, Near Vikas High School,
Vikroli (E), Mumbai 400083 [hereinafter referred to as, " temporary
alternate accommodation"].
5. On account of employment deceased father of the plaintiffs
was residing at Flat No.B/47, Taj Mahal Cooperative Housing Society
Ltd., 19/24, Pais Street, Mumbai – 400011 with his wife and children
namely plaintiffs No.1, 2, 5 and husband of the defendant and another
son Tejpal. Plaintiff Nos.3 and 4 were already married and residing
with their respective husbands at their matrimonial homes. Deceased
father of the plaintiffs had appointed Shekar Salian, husband of the
defendant, as a nominee along with mother and other brothers in
respect of said flat No.B/47. Plaintiff Nos.1, 2, 5 and the defendant with
her husband Shekar Salian, along with their parents and other brother
Tejpal were all residing together at the said Byculla Flat No.B/47.
Plaintiff No.1 after his marriage, shifted to said temporary alternate
accommodation at Vikroli and residing there with his family. Plaintiff
No.1 had paid all requisite outgoings and payments in respect of said
temporary alternate accommodation at Vikroli.
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S.C.Suit No. 1308/2020. 5 Ex-parte Judgment (Exh.13).
6. Later on, since plaintiff No.1 acquired a separate
accommodation, the defendant with her husband Shekar Salian and
children started staying at temporary alternate accommodation at
Vikroli for convenience only. Plaintiff's deceased father, mother and all
children could not reside at temporary permanent accommodation. The
defendant with husband and children stayed there on their behalf.
Accordingly in Mumbai unit of MHADA Authority, the name of Shekar
Salian, deceased husband of defendant was recorded because all the
names could not be mentioned in respect thereof.
7. Plaintiff's father Babu T. Salian expired on 27.09.1990.
Thereafter, their mother Kamala B. Salian expired on 17.05.1992
leaving behind her the plaintiffs, other son Tejpal B. Salian and another
son Shekar B. Salian, husband of defendant as her only legal heirs and
representatives. Plaintiff's brother Tejpal B. Salian expired on
20.11.2019 and another brother Shekar B. Salian, husband of
defendant expired on 08.07.2020. There is no relief claimed in respect
of proportionate share of right of deceased Tejpal Salian.
8. MHADA have completed the redevelopment/reconstruction
of the said Haji Kasam Building and provided Flat No.502 on fifth floor,
in the said building now named as Tiranga Society, situated at the place
of the original residence, being permanent alternate accommodation in
lieu of said original residence of deceased father of plaintiffs
(hereinafter referred to as “the suit premises”).
9. Shekar Babu Salian, brother of plaintiffs and husbands of
defendant, now deceased taking benefit of staying at the said temporary
permanent accommodation at Vikroli, started residing at the suit
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S.C.Suit No. 1308/2020. 6 Ex-parte Judgment (Exh.13).
premises after completion of its reconstruction by the MHADA. Their
deceased brother Shekar Babu Salian by falsely representing that he is
the only legal heir and representatives of deceased father Babu T. Salian
enjoyed and used the said permanent alternate accommodation and the
suit premises also without paying any royalty or compensation to the
plaintiffs.
10. Plaintiffs being the legal heirs of their deceased father Babu
T. Salian and deceased mother Mrs. Kamala Babu Salian have inherited
their undivided rights and assets along with other siblings. Plaintiffs
have their undisputed, undivided and inherited successive rights in the
suit premises which is provided in lieu of original residence of the
deceased father of plaintiffs alongwith right of use and possession and
membership of the society as accorded under law. The defendant and
her deceased husband were holding temporary alternate
accommodation or the suit premises only on trust on behalf of all legal
heirs of deceased father Babu T. Salian as custodian thereof without any
independent or absolute right in respect of title thereof. The deceased
husband of defendant also admitted that the original residence stands
in the name of deceased father Babu T. Salian.
11. The plaintiffs or any of them being the legal heirs of
deceased father Babu T. Salian have at any point of time not released or
relinquished or surrendered their respective right in respect of suit
premises or the membership of the society or the right of use,
occupation and enjoyment or benefits accrued therein. The right, title
and interest of the plaintiffs in respect of the original residence or the
suit premises, membership of society thereof and right of use,
occupation and enjoyment of the suit premises is subsisting, valid and
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S.C.Suit No. 1308/2020. 7 Ex-parte Judgment (Exh.13).
enforceable under law. The right evolved through the deceased father
by succession upon the death to the plaintiffs in respect of suit premises,
membership and possession is absolutely and exclusively belongs to and
remains with the plaintiffs. The defendant is not the absolute successor
of deceased father or not exclusively entitled for the right, title and
interest in respect of the suit premises or membership or possession
thereof.
12. Under the prevailing provisions of law, it is admitted
position that the plaintiffs have their undivided successive rights
inherited and evolved from their deceased father in respect of said
original residence and the suit premises in place without any legal
impedance. The defendant is not absolutely or independently entitled
for exclusive rights in respect of original residence or the suit premises
under any provision of law.
13. It is now reliably learnt that the defendant in collusion with
officials of society is intending to transfer in her own name, to sale or to
dispose off or to let out permanently or to create third party right in
respect of suit premises without any intimation or permission from the
plaintiffs. Prospective purchaser and the other third parties are visiting
the suit premises and the society officials to finalize the transaction for
transfer and disposal of suit premises. Therefore the plaintiffs through
their Advocates Notice dated 05.09.2020 recorded aforesaid facts and
events to the officials of society. Unit of MHADA also to the defendant,
thereby required not to proceed for transfer or sale or creating any third
party right in respect of suit premises, membership or possession
thereof and to accord the proportionate right of plaintiffs in respect
thereof. The said notice was duly delivered to the parties, however reply
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S.C.Suit No. 1308/2020. 8 Ex-parte Judgment (Exh.13).
is not received till date.
14. The defendant has no independent or exclusive right in
respect of the suit premises, hence not entitled for transfer of
documents in respect of suit premises in her name and also not entitled
for further transfer or sale or to let out or to create third party right in
any manner whatsoever in respect of suit premises or the membership
or any right accrued thereof.
15. On 29/09/2020, some third party visited the suit premises
and inspected with measurement and had discussion with the officials
of the society at the instance of the defendant about the transfer of the
suit premises in their name. The plaintiffs have legitimate rights in the
suit premises. For the neighbouring premises to the suit premises in the
same locality, monthly compensation of Rs.40,000/ for leave and
licence is prevailing in the market. Accordingly, the defendants is liable
to pay proportionate share of plaintiff for last preceding three years till
the date of institution of this suit at the rate of Rs.40,000/ per month.
The plaintiffs' proportionate share is Rs.28,500/ per month. Therefore,
the plaintiffs filed the suit for permanent injunction restraining the
defendant from transferring, selling or letting out the suit premises.
They also prayed for amount of Rs.28,500/ per month being
proportionate share of the plaintiffs towards royalty/compensation in
respect of the suit premises from the date of the suit till realization.
They also prayed for cost of the suit.
16. The defendant is duly served with writ of summons as per
Bailiff Report dated 03/04/2021, but she failed to appear, therefore ex
parte order is passed against the defendant in roznama dated
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S.C.Suit No. 1308/2020. 9 Ex-parte Judgment (Exh.13).
23/09/2022. The plaintiff examined PW 1 Bhassker Babu Salian on
Exh.6 and proved documents filed with list Exh.7. Documents are
marked as Exh.8 to 11. The plaintiffs closed evidence vide pursis
(Exh.12). Heard learned counsel Shri Jagdish Hegde for the plaintiffs.
17. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Do the plaintiffs prove that they
alongwith the defendant are having
right, title and interest in the suit
premises ?
In the Affirmative.
2. Do the plaintiffs prove that they are
entitled to the relief of permanent
injunction as prayed ? In the Affirmative.
3. Do the plaintiffs prove that they are
entitled to claim amount of Rs.28,500/
per month from the date of the suit till
realization ? In the Negative.
4. What order as to costs ? As per final order.
5. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINTS NO.1 TO 5 :
18. Plaintiff no.2 Bhassker Babu Salian has deposed in his
evidence affidavit (Exh.6) that Babu T. Salian had acquired rights in
respect of the original residence. He further deposed that MHADA
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S.C.Suit No. 1308/2020. 10 Ex-parte Judgment (Exh.13).
provided temporary alternate accommodation at Vikhroli (East) to Babu
T. Salian till completion of redevelopment of the building. He further
narrated details of residences of the parties to the suit in consonance
with pleadings in the plaint. He deposed that deceased father, mother
and all children could not reside at the said temporary alternate
accommodation at Vikhroli, the defendant with her husband and
children stayed in the said premises. He further deposed that his father
Babu T. Salian expired on 27/09/1990 and his mother Kamala B. Salian
expired on 17/05/1992. He proved their death certificates as Exh.8 and
9.
19. Plaintiff no.2 Bhassker further deposed that the suit
premises was allotted being permanent alternate accommodation in lieu
of the original residence. He deposed that the defendant and her
husband Shekar took benefit of staying at the temporary alternate
accommodation and started residing at the suit premises after
completion of its reconstruction by MHADA. The plaintiff proved
advocate's notice dated 05/09/2020.
20. If above referred evidence is considered, it is obvious that
father of the plaintiff had acquired rights in the original residence and
he expired in year 1990. The plaintiffs have not given particulars of
date of handing over possession of the original premises for
redevelopment purpose. There is no reference of development
agreement. Similarly, particulars regarding duration of reconstruction
of the suit premises are not given. Date of taking possession of the suit
premises is also not given. In short, pleadings in the plaint are vague. If
the development agreement had been entered into with the father of
the plaintiffs and the suit premises had been allotted to him, the
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S.C.Suit No. 1308/2020. 11 Ex-parte Judgment (Exh.13).
plaintiffs could have been in a position to acquire rights in the suit
premises. Admittedly, the plaintiffs were not residing in temporary
alternate accommodation. As residence in the original premises is
relevant for accrual of or creation of rights in the suit premises, the
plaintiffs are justified in staking claim over the suit premises. Therefore,
the plaintiffs are entitled to protect their interest in the suit premises. So
far as aspect of demand of Rs.28,500/ per month is concerned, the
defendant is occupying the suit premises for herself and also on behalf
of the plaintiffs. Question of granting compensation by one legal heir to
other legal heirs of the deceased for possession of the immovable
property, which can be subjected to partition or inheritance by
succession, does not arise for want of reliefs for partition and separate
possession. The plaintiffs have not claimed mesne profit regarding the
suit premises. In the result, I record my findings as to Points No.1 and 2
in the affirmative and as to Point No.3 in the negative. Considering
nature of the suit, parties can be allowed to bear their own costs.
Hence, I pass the following order :
ORDER
1. S. C. Suit No. 1308/2020 is partly decreed.
2. The defendant, her agents, servants and any person acting
on her behalf are permanently restrained from transferring
or selling or letting out by leave and license or creating
third party right in any manner whatsoever in respect of
the suit premises being Flat No. 502 on fifth floor, in the
said building now named as Tiranga Society, situated at
176/178, Maruti Lane, Off. Bora Bazar Street, Fort,
Mumbai GPO, Mumbai – 400001 or possession or
membership or any benefit accrued thereof.
3. Parties shall bear their own costs.
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S.C.Suit No. 1308/2020. 12 Ex-parte Judgment (Exh.13).
4. Decree be drawn up accordingly.
5. Notice of Motion No. 1853/2020 is made absolute in above
terms.
6. Proceeding of N/m No. 1853/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 21/03/2023. Mumbai.
1. Dictated online on : 21/03/2023.
2. Signed on : 21/03/2023.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/03/2023. 5.18 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 21/03/2023.
Judgment/Order signed by P.O. on 21/03/2023.
Judgment/Order uploaded on 21/03/2023.
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