Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.1607/2019 ..1.. Suit No.603/2018
CNR No.MHCC0143562019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1607 OF 2019
IN
SUIT NO.603 OF 2018
Mehtab Singh Durrilal Rajoria .. Plaintiff
Versus
Kalyan Singh Durrilal Rajoria .. Defendants
Mr. Amarendra P. Jha, advocate for plaintiff
Mr. V.N. Golwala, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 07th August, 2019
ORAL ORDER
Notice of motion of is taken out by plaintiff for direction to
defendants, their agents, servants, etc. to restore the possession of suit
premises viz Room No.244, admeasuring 10 x 15 sq.ft (Ground + two
upper floors), situate at Shivshakti Nagar, J.J. Bhosale Marg, Nariman
Point, Mumbai 400 020 and to pay a sum of Rs.15,000/ per month to
plaintiff till possession of suit premises is handed over to him.
Plaintiff further prayed for order of temporary injunction
restraining defendants from dealing with, disposing of and/or creating
third party right and/or inducting any person/s into the suit premises
and further prayed for appointment of Court Receiver in relation to suit
premises.
2. It is the contention of plaintiff that he is in use, occupation and
possession of suit premises. He is in possession of documents such as
ration card, election identity card, electricity bill, photopass, Aadhar
card, bank passbook at the address of suit premises which show his use,
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possession and occupation over suit premises. Defendant No.1 is his
elder brother and defendant No.2 is wife of defendant no.1. Defendants
are residing in Room No.348 but they want to grab the suit premises.
Defendants have fraudulently changed name in the electricity bill of suit
premises. Previously name of plaintiff was printed on electricity bill but
now name of wife of defendant No.1 appear on it. Plaintiff has not
given any NOC to defendants for transfer of electricity bill in respect of
suit premises. Defendants have also removed the name of plaintiff from
ration card without his knowledge, consent and permission. Even
defendant No.1 inserted name of wife of plaintiff as his wife in election
ID Card. It shows name as Rajoria Pushpa Kalyan Singh. However,
Pushpa is wife of plaintiff and sisterinlaw of defendant No.1.
Defendants threatened plaintiff to throw him and his family out of the
suit premises as they are owner of suit premises.
3. It is further contended that after filing of the suit, a notice to
defendants to appear before this Court on 5th March, 2018 was given by
his advocate, which was received by them on 3rd March, 2018.
However, on 4th March, 2018 at about 4.00 p.m. defendants forcibly
entered the suit premises, assaulted plaintiff's wife and daughter
mercilessly. They also threw articles and belongings of plaintiff out of
the suit premises and took forcible possession of it. At that time,
plaintiff was at his job place. Wife and daughter of plaintiff went to
Colaba police station and tried to lodge complaint of said incident. But
police officer on duty instead of taking cognizance of said offence had
recorded only NC report. On 5th March, 2018 plaintiff's advocate
informed the Court that defendants have forcibly taken possession of
suit premises on 4th March, 2018 at about 4.00 p.m. and also requested
the Court to appoint Court Commissioner to visit suit premises and to
submit report about factual position of suit premises. However, Court
declined to pass any order to that effect. Advocate for defendants filed
reply to notice of motion and matter was adjourned to 19.03.2018.
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Meanwhile, plaintiff has challenged the said order dated 05.03.2018 in
Appeal before Hon'ble High Court. Defendants are enjoying possession
of suit premises illegally and forcibly taken by them. Accordingly,
plaintiff urged in above terms.
4. Defendants filed reply and objected to notice of motion. It is
contended that plaintiff has no legal right or authority to file suit in
respect of suit premises i.e. Room No.244 as plaintiff is neither owner
nor in physical use, occupation and possession of suit premises. Plaintiff
approached to this Court with unclean hands and has suppressed
material facts and therefore, he is not entitled for any relief.
5. It is further contended that they have acquired and purchased
all ownership right, title and interest of entire suit premises viz Room
No.244, Shivshakti Nagar from one Shri Pandurang M. Kamble on 18th
May, 1995 for Rs.3,500/ by executing writing on stamp paper dated
18.05.1995 in presence of two witnesses mentioning that he has handed
over all rights, title and interest of his ownership in respect of suit
premises and also its vacant and peaceful possession to defendants.
Since 18.05.1995, both defendants are in exclusive and joint use,
occupation, possession and enjoyment of suit premises. Defendants
have also got electric meter and bill of suit premises No.244 transferred
in their names.
6. It is further contended that in the year 2006, plaintiff came to
Mumbai in search of job. Defendant No.1 being his elder brother helped
him in getting job and allowed him to reside with them jointly and
temporarily at suit premises No.244 on ground floor portion only as
gratuitous licensee. For getting foodgrains and kerosene at subsidized
rates, defendants allowed plaintiff to obtain ration card for temporary
use of suit premises. As plaintiff was finding ground floor of suit
premises insufficient therefore, he along with his family members
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voluntarily and willingly vacated and left the suit premises and handed
over its physical possession to defendants. Plaintiff also executed
Affidavit dated 16.10.2008 about the same and in view of said affidavit,
defendants cancelled ration card of plaintiff on 02.11.2010 from the
address of suit premises and name of defendant No.2 has been entered
in place of plaintiff. Both defendants are having documents viz identity
card, Aadhar card, bank account, PAN card at the address of suit
premises. On 05.01.2015, defendant No.2 applied for protection of
Room No.244 under Zhopadpati protection Act to the Collector Office,
Mumbai. Suit premises consists of ground plus two upper floors.
Ground floor is in exclusive use, occupation, possession and enjoyment
of both defendants. Two upper floors are given on leave and licence
basis. In light of above contentions defendants prayed for dismissal of
notice of motion.
7. Plaintiff has filed rejoinder to reply of defendants. He reiterated
what is stated in plaint and affidavit in support of notice of motion. He
also contended that as per order dated 02.11.2018, inspection of
documents has already been given to defendants on 24.01.2019 and
advocate of defendants has made remark after inspection of said
original documents. He again prayed for allowing notice of motion.
8. Perused notice of motion, affidavit in support of it, reply of
defendants, rejoinder of plaintiff, pleading of the parties and documents
placed on record. Heard respective counsel for parties. They advanced
their arguments in accordance with respective contention of parties.
9. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under:
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POINTS FINDINGS
1. Whether plaintiff has got prima facie case? …Partly yes.
2. Whether balance of convenience lies in
favour of plaintiff? …Partly yes.
3. Whether plaintiff will suffer irreparable loss if
relief sought is refused? …Partly yes.
4. Whether plaintiff proves that it is just and
convenient to appoint Court Receiver in relation
to suit premises?
…No.
5. What order? As per final order
REASONS
As to point Nos.1 to 4
10. There are rival claims about right, title in relation to structure of
suit premises. Plaintiff has claimed that he is residing in suit premises
since his birth while defendants claimed that they have acquired suit
premises from one Pandurang Kamble vide writing dated 18.05.1995
and they have allowed plaintiff in or about 2006 to stay with them
jointly in ground floor portion of suit premises. Defendants also claimed
that plaintiff has vacated suit premises on 16.04.2008 and handed over
possession of the same to defendant No.1 by affirming affidavit on
16.10.2008. Defendants denied contention of plaintiff about his forcible
dispossession on 04.03.2018. In view of above contentions for the
purpose of just decision of present notice of motion, I have carefully
perused the documents filed by the parties.
11. Copy of ration card filed by plaintiff shows that it was issued at
the address of suit premises on 05.08.1999. It also shows that earlier
ration card No.0439097 was issued on 11.04.1997 but said ration card
is not placed on record to show that it was issued at the address of suit
premises. Copy of election identity card of plaintiff shows that it was
issued on 12.02.1996 at the address 2044, Shiv Shakti Nagar, G. J.
Bhosale Marg, Bombay. It cannot be said that it relates to address of
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suit premises. It does not show Room No.244. Had room number in it
is incorrectly mentioned then plaintiff would have applied for the
correction of the same. There is nothing on record to show that he has
applied for correction of the same. Copy of electricity bill stands in the
name of plaintiff. It is for the period from 30.09.1998 to 01.12.1998.
But room number is not mentioned in the said electricity bill so it
cannot be prima facie said that it relates to suit premises. Plaintiff has
also filed copy of electricity bill of May, 2017 which stands in the name
of defendant No.2 and it relates to suit premises. Had the plaintiff was
prima facie in possession of suit premises then he would have
challenged about electricity bill of suit premises being issued in the
name of defendant No.2. Copy of receipt dated 13.07.2000 filed by
plaintiff only shows that he has submitted information in prescribed
format. It does not show that information pertaining to suit premises
has been filled by the plaintiff. Copy of bank passbook shows that
account was opened by the plaintiff on 22.11.2000 and it shows the
address of suit premises. So also, copy of Aadhar card of plaintiff also
shows that it was issued at the address of suit premises. From the
documents referred above particularly copy of ration card and copy of
bank passbook it can be said that plaintiff was residing at the address of
suit premises since 1999 to 2000. Therefore, contention of defendants
that plaintiff came to reside in suit premises in or about 2006 does not
inspire confidence.
12. Defendants have come with the case that they have permitted
plaintiff to reside in suit premises as gratuitous licensee and plaintiff has
voluntarily vacated suit premises on 16.04.2008 and executed affidavit
which was notarized on 16.10.2008. I have gone through copy of said
affidavit. It was notarized on 16.10.2008. It shows that plaintiff has
solemnly affirmed that he has vacated Room No.224 of Shiv Shakti
Nagar, G. J. Bhosale Road, Nariman Point, Mumbai. Room number
mentioned in it does not tally with room number of suit premises which
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is '244'. But it is not the case of plaintiff that he has handed over
possession of some other premises than the suit premises to defendants.
May it be so, defendants have also filed on record electricity bills for
different months from July, 2015 to March, 2019 of suit premises.
Those bills stand in the name of defendant No.2. Plaintiff has not filed
recent electricity bill in relation to suit premises to show that although
electricity connection of suit premises stands in the name of defendant
No.2 but he has paid electricity consumption bill of same to show prima
facie his possession over the suit premises on the date of institution of
suit. Even the ration card at the address of suit premises shows the
name of defendant No.2 as head of the family and name of plaintiff has
been deleted from the ration card on 02.11.2010. Copy of election
identity card of defendant no.2 shows that it was issued at the address
of suit premises on 22.03.2013. Even copy of Aadhar card of defendants
show that same are issued at the address of suit premises. Defendants
have also filed copy of bank passbook relating to their joint account
which was also issued at the address of suit premises and it was issued
on 04.02.2013. Thus, documents as referred above filed by the
defendants prima facie show their possession over suit premises on the
date of filing of suit. It is pertinent to note that defendants have also
filed affidavit of Sanjiv Valmiki to show that he is occupying part of
upper portion of suit premises as licensee since last three years.
Alongwith affidavit copy of Aadhar card of Sanjiv Valmiki is also
annexed which shows address is that of suit premises. This affidavit also
prima facie supports the contention of defendants. Affidavits of
Parvatadevi and Rekha filed by defendants are not relied by me for the
reason that their address given in the copy of Aadhar card and identity
card respectively does not tally with that of suit premises.
13. It is claimed by plaintiff that he was dispossessed after
institution of suit. But copy of NC report dated 04.03.2018 does not
show that plaintiff was dispossessed by defendants from suit premises.
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It indicates only about the assault and abuses uttered by the defendants
and copy of injury reports of wife and daughter of plaintiff also show
that they suffered injuries. Copy of report dated 06.03.2018 only shows
that articles were thrown out from the house of plaintiff but it is not
specifically mentioned that those articles were allegedly thrown out
from suit premises. As pointed out earlier plaintiff has not filed any
document to show prima facie his possession over suit premises on the
date of institution of suit. On the contrary documents filed by
defendants show prima facie their possession over suit premises. That
being so, it cannot be said that plaintiff has made out strong prima facie
case for grant of relief in terms of prayer clause (a) of present notice of
motion. So also, he failed to show that balance of convenience lies in his
favour for grant relief in terms of prayer clause (a) and that, he will
suffer irreparable loss if relief sought is refused. Hence, I am not
inclined to grant relief in that regard.
14. So far as relief sought in terms of prayer clause (b) is concerned;
defendants have claimed their right, title over suit premises and
specifically stated as to how they acquired suit premises. But plaintiff is
silent in that respect. He only stated that he is residing in suit premises
since his birth. However, he has not filed any document to show that he
occupied suit premises since his birth. He failed to show primafacie
that he was in possession of suit premises on the date of suit.
Therefore, at this stage, plaintiff has not made out prima facie case for
giving direction to defendants to pay Rs.15,000/ per month to him for
use and occupation of suit premises. Hence, I am not inclined to grant
relief in that regard.
15. So far as relief in terms of prayer clause (d) is concerned; as
pointed above plaintiff has failed to show prima facie that he was in
possession of suit premises on the date of institution of suit and nothing
is brought on record to show that defendants are causing any damage
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or waste to the suit premises. Therefore, I do not think just and
convenient to appoint Court Receiver in relation to suit premises.
Hence, I am not inclined to grant relief in that regard.
16. So far as relief in terms of prayer clause (c) is concerned;
plaintiff has filed certain documents which show that he was occupying
suit premises and seems that claiming possessory title over the suit
premises. He has raised triable points in that regard which required to
be determined after conducting fullfledged trial. Certainly, if
defendants are not restrained from alienating/disposing suit premises
and parting possession of ground floor of suit premises to any third
party then very purpose of filing of suit would be defeated. In that
respect, I hold that plaintiff has prima facie case and balance of
convenience also lies in his favour and he will suffer irreparable loss if
relief as pointed above is not granted. Hence, pass following order
ORDER
1. Notice of Motion No.1607 of 2019 is partly allowed in following
terms:
Defendants are hereby restrained by order of temporary
injunction from alienating/disposing of suit premises and parting with
possession of ground floor of suit premises to any third party till
disposal of suit.
2. Costs will be the cause in the suit.
3. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 07.08.2019 Gr. Bombay
Typed on : 07.08.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09.08.2019, 3.30 p.m.
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
07.08.2019
JUDGMENT/ORDER signed by P.O.
on
09.08.2019
JUDGMENT/ORDER uploaded on 09.08.2019
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