Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 NM No.1429/2020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1429 OF 2020
IN
SUIT NO.1111 OF 2020
(CNR NO.MHCCO1-004403-2020)
Dheeraj Ishwar Bhatia ...Plaintiff
Age-39 years, Indian Inhabitant,
Occ: Service,
R/at:
Block 62/3, Bear Pipe Line,
Mulund Colony, Mulund (West),
Mumbai.
Versus
Kunal Mahesh Bhatia ….Defendant
Age:34 years, Indian Inhabitant,
Occpation: Not Known,
R/at:
House No. 18A, Dream Land Society,
Jai Shashtri Nagar, Mulund Colony,
Mumbai- 400 082.
Ld. advocate Mr. Ajay Basutkar for the plaintiff.
Ld advocate Mr. Shaileh Chavan for the defendant.
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 18th December, 2020.
ORAL ORDER
1. By this notice of motion plaintiff is claiming temporary
injunction restraining to the defendant or his agent, servant, or any
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other person acting on his behalf from trespassing into the Suit Flat
being Room No. 4, Block No. 96, Mulund Colony, situated at Agra Road,
off. L.B.S. Marg, Mulund Mumbai-400 082 (hereinafter referred as 'suit
premises').
2. In short, the case of the plaintiff is that the plaintiff is the
nephew of Mahesh Bhatia and defendant is son of Mahesh Bhatia.
Mahesh Bhatia expired on 1.9.2018. By his Will dtd. 1.5.2005 Mahesh
Bhatia, has made plaintiff as the executor and beneficiary of the Will,
which is in respect of suit premises. The plaintiff claims to be looking
after his health and financial needs since 2005 and was maintaining the
suit premises. The plaintiff is having various documents to show his
possession. The plaintiff contended that on 5.9.2020 at around 4.00 to
5.00 p.m 3 persons tried to enter in the suit premises. The neighbors
informed the plaintiff about the same. On inquiry with the neighbour
he came to know that one persons out of the three was defendant. The
plaintiff immediately lodged the complaint to the police station. The
plaintiff is in possession of the suit premises and apprehend the
dispossession at the hands of the defendant, therefore the present suit
came to be filed alongwith the accompanying notice of motion.
3. The defendant filed the reply to the notice of motion. The
contention of the defendant is that the plaintiff has no locus to file the
suit. There is no cause of action for filing of the suit. He contended that
he was never trespassed in the suit premises. He claims that neither
plaintiff nor he is in possession of the suit premises after demise of
Mahesh Bhatia. The plaintiff with fraudulent and dishonest intention to
deceive and cheat the defendant have manipulated, forged and
fabricated Will dtd.1.5.2005. On 5.10.2020 at 2.00 pm defendant was
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passing through the suit property, he was surprised and shocked to see
the some construction work is going on at the disputed suit premises.
At that time defendant told to plaintiff, as to why he is doing
construction work and opened door lock of the suit premises. At that
time the plaintiff obstructed the defendant. The defendant has also
lodged the complaint against the plaintiff. Since the suit premises came
to deceased Mahesh from his (defendant)grandmother. After the death
of Mahesh, plaintiff has done all this criminal activities. After the death
of Mahesh the suit property was locked and plaintiff has trespassed.
Plaintiff is not entitled for any relief.
4. From the rival contention of the parties following points arise
from my determination and findings to it recorded for the reasons
stated as follows:
POINTS
1. Whether the plaintiff has made out case in his favour?
2.Whether the needle of balance of convenience tilt in favour of
the plaintiff?
3.To whom irreparable loss will be caused?
4. What order?
FINDINGS
1. In the affirmative.
2. In the affirmative.
3. To the plaintiff
4. As per final order.
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REASONS
POINT NOS. 1 TO 3
5. The fact at this stage is prima facie not disputed that the deceased
Mahesh Bhatia was occupying the suit premises. He left for heavenly
abode on 1.9.2018. It is the contention of the plaintiff is that Mahesh
Bhatia was married to one Neeta Mahesh Bhatia on 23.12.1984. From
the said wedlock Mahesh Bhatia has one female and one male issue.
Defendant is his son. Mahesh Bhatia has obtained the divorce decree
dtd. 8.1.1997 from his wife. He submitted that the decree was by
consent. He pointed out that by the consent decree the custody of
children were kept with their mother ie ex-wife of Mahesh. The decree
and the consent term is filed on the record by the plaintiff which shows
that the custody of the defendant and his sister was with their mother.
6. The plaintiff submitted that he was all along taking care of
deceased and therefore deceased executed Will and thereby bequeath
all his right, title and interest in the suit premises in his favour. He has
filed the probate petition bearing No. 2474/2019. The copy of which is
also annexed. The Ld. Counsel of the plaintiff argued that plaintiff is
residing in the suit premises. In order to demonstrate his possession, he
has filed the electric bills of the suit premises of January, June and
August -2020 . He has also filed copy of internet broadband connection
bills. The payment was given by him. He has also filed the copy of
passbook wherein the address of the suit premises is mentioned and the
account is in the joint name of plaintiff and deceased Mahesh. The
affidavit of one Pankaj Rajput is filed to shows that 5.9.2020 three
persons tried to break open the lock of suit premises.
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7. At this juncture it would not be proper to place reliance
upon the electric bills and the payment of internet connection by the
plaintiff to hold the possession over the suit premises. No doubt, the
plaintiff is claiming his right, title and interest on the strength of Will.
This court can not decide the validity of the Will and even it will be
unsafe to hold the possession on the basis of a Will, which is under the
scrutiny before the Hon'ble High Court.
8. At this juncture it is apparent from the written statement of the
defendant that he noticed on 5.10.2020, while he was passing to the
suit premises some construction activities were carried out by the
plaintiff at the suit premises. He questioned the plaintiff for carrying out
the construction work and opening the lock of the door. There was
quarrel and the plaintiff was obstructing the defendant. The said recital
of the defendant prima facie shows that the plaintiff was in possession
since before the date he noticed the act construction activities being
carried out by the plaintiff. So, at this juncture the documents filed by
the plaintiff to demonstrate his possession ie in the form of electric bills,
internet connection bills etc. get support from the admission of
defendant as regard possession of plaintiff over the suit premises. The
plaintiff thus prima facie appears to be in the possession of the suit
premises. Even otherwise the affidavit of the one Pankaj Rajput, who
resides near the suit premises gives strength to the case of the plaintiff
at this juncture in respect of the possession over the suit premises.
9. From the consent terms attached to decree of divorce,it shows
that defendant was not residing with the deceased Mahesh. The
defendant even does not claimed to be in the possession of the suit
premises at any point time. At this juncture there is sufficient material
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to suggest that the plaintiff is in possession of the suit premises and
moreover the stand of the defendant in the written statement also
support that the plaintiff is in possession. The plaintiff contended that
the defendant tried to take forceful possession, he has filed the copy of
N.C. Complaint dtd.5.9.2020. The defendant on the other hand claimed
that the plaintiff tried to obstruct him and he has filed NC complaint
and the said complaint is not annexed by the defendant. Thus, prima
facie it appears that plaintiff is having reasonable apprehension of his
dispossession at the hands of defendant. The plaintiff has prima facie
established his possession and therefore needle of balance of
convenience tilt in favour of plaintiff. In case the plaintiff is dispossessed
he will suffer irreparable loss and therefore it is necessary to protect
the possession of the plaintiff over the suit premises. Therefore, I
answer point no. 1 and 2 in the affirmative .
POINT NOS. AS TO 3
10. In view of the above discussion and findings as to point no.1 to
3. Hence, it is expedient to pass following order:-
ORDER
1. N/M No. 1429/20 is made absolute in terms of prayer
clause(a).
2. Costs in the cause.
(M.SALMAN AZMI)
Judge,
Date: 18.12.2020 City Civil Court, Gr.Bombay
Dictated on: 18.12.2020
Transcribed on: 22.12.2020
Signed on:23.12.2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
23/02/2020 at 4.00 pm. Kashmira Rana
Stenographer
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
18.12.2020
Judgment and order signed by P.O. 23.12.2020
Judgment/order uploaded on 23.02.2020
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