Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.1478 of 2020
CNR:MHCC010044762020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1478 OF 2020
IN
L.C.SUIT NO.1277 OF 2020
Radha alias Radhabai Krishna Shenvi .. Plaintiff
V/s.
The Municipal Commissioner of
Greter Mumbai & Ors. .. Defendants
Appearance:
Adv. Khaire for plaintiff.
Adv. Kumud Soraan for MCGM/defendant No.1 and 2.
Adv.Yogesh Palve for defendant No.3.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 10/02/2023
ORDER
1 Plaintiff has taken out this Notice of Motion for grant of
temporary injunction thereby restraining the defendant No.3 or anyone
claiming through him from selling, disposing off, transferring or
creating any type of third party interest in respect of suit premises till
final decision of the suit.
2 Room No.30 admeasuring 300 sq. ft. built up, situated on
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4th floor, Bane Compound, 'H' Block, Tardeo, Mumbai is the subject
matter of the present suit. It is owned by defendant No.1 Municipal
Corporation. The plaintiff has averred that defendant No.3 is her
younger son who is in illegal possession of the suit premises i.e. Room
No.30. Plaintiff's father Balkrishna Bhagsheth alias Bhagoji Tamhankar
was the principal tenant on record of defendant No.1 for suit premises.
He expired on dt.18/09/1999 however, prior to his death, the tenancy
of suit premises got transferred in the name of plaintiff's brother
Dashrath Balkrishna Tamhankar as he was residing in the suit premises
with the deceased. Transfer of tenancy took place by way of hereditary.
The plaintiff has been visiting the suit premises intermittently. Plaintiff
is one of heir of deceased Balkrishna Tamhankar with Dashrath
Tamhankar. The plaintiff has given details of his relatives who lived
with the deceased principal tenant in the suit premises. She added that
after the death of her parents, the plaintiff had been taking due care of
her brother Dashrath who was keeping frequent ill health. Somewhere
in the year 1999 and on the consent paper dt.11/10/1999, the brother
of the plaintiff transferred the electricity meter and bill in her name.
However, after the death of her brother, somewhere in the year 2013,
the plaintiff came to know that her brother Dashrath intended to sell
and dispose off the premises to which plaintiff was entitled. She filed
suit bearing No.1702 of 2013 against her brother. However, during the
pendency of that suit, it was agreed between them that during his
lifetime, Dashrath will continue to remain as tenant in respect of suit
premises and only after his death, the tenancy will be transferred in the
name of the plaintiff. The affidavit as well as Will were then executed
on dt.10/4/2015. She had also executed two indemnity bonds in
favour of defendant No.1 and 2. However, the plaintiff later on came to
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know that the tenancy has been illegally transferred in the name of her
younger son i.e. defendant No.3. He obtained separate Ration Card for
his family members at the address of suit premises. The plaintiff lodged
complaint against him regarding forgery committed by him in
preparation of Ration Card and later on came to know that tenancy has
been transferred in the name of defendant No.3. The plaintiff taken
steps to lodge complaint at appropriate forums. However, it was not of
any effect. She was residing in the suit premises from 17/02/2017 and
it was kept under lock. However, on dt.16/06/2019, the defendant
No.3 had broken open said lock and took forcible possession of the suit
premises. It is alleged that the suit premises was illegally transferred in
favour of defendant No.3 in collusion with defendant No.1 and 2. The
legal right, title and interest in the suit premises vests in her. In said
eventuality, if the defendant No.3 creates third party interest in the suit
premises, she will suffer irreparable loss. Being the legal heir of original
tenant and sister of subsequent tenant with the indemnity bond, the
plaintiff has prima facie case in her favour. Hence, defendant No.3 may
be restrained by way of grant of temporary injunction from creating any
third party interest in the suit premises.
3 The defendant 1 and 2 have filed reply to the Notice of
Motion stating that after receipt of tenancy application from the
plaintiff, they issued letter to the plaintiff dt.26/09/2018 to submit
relevant documents for transfer of tenancy rights within 15 days. They
also received application from defendant No.3 dt.12/03/2018 for
transfer of tenancy in his favour. The defendant No.1 and 2 asked for
same compliance to defendant No.3 also. The defendant No.3
submitted documents on dt.15/10/2018 including the Will of principal
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tenant alongwith the documents to the Corporation. He also submitted
the indemnity bond in which he has stated that he will be solely
responsible for any claim raised by any person including legal heirs of
principle tenant if any, come forward and proved in the Court of law
regarding right of tenancy. On dt.20/06/2019 and 30/07/2019 they
inspected the suit premises and found that defendant No.3 is in
occupation of the suit premises. Therefore, after giving ample
opportunity to the plaintiff and defendants, Corporation had transferred
tenancy rights in favor of defendant No.3 on dt.20/08/2019 as per their
circular. They have followed due process of law and therefore, the
Notice of Motion is liable to be dismissed.
4 The defendant No.3 filed reply to Notice of Motion and
made submission that the principle tenant transferred the tenancy in
the name of earlier tenant Dashrath and subsequently Dashrath
transferred the tenancy in the name of defendant No.3. He is in lawful
possession of the suit premises. It is said that by way of Jahirnama,
deceased Dashrath cancelled transfer of tenancy in the name of
plaintiff. Defendant No.3 was residing in the suit premises with
deceased Dashrath. He is having all necessary documents with him.
The tenancy has been legally transferred in his name and therefore, he
cannot be restrained from creating any type of third party interest in
respect of suit premises. He had produced the Ration Card and other
documents before the concerned authority showing his possession over
the suit premises. Relying upon the same, the tenancy has been
transferred in his favour. The plaintiff has filed this Notice of Motion
only to deprive the defendant No.3 from his legitimate rights. Hence,
he prayed for dismissal of Notice of Motion.
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5 From the facts and circumstances of the case, and material
placed on record, following points arose for my determination and I
have given my findings thereon with reasons as below.
Sr.
No.
POINTS FINDINGS.
1 Whether prima facie case lies in
favour of plaintiff ?
Yes
2
Whether balance of convenience
lies in favour of plaintiff ? Yes
3
Whether plaintiff will suffer
irreparable loss, if Notice of Motion
is not allowed ?
Yes
4 What Order ? Notice of Motion is
made absolute.
REASONS
AS TO POINT NOS.1 TO 3.
6 All these points are interlinked with each other, hence, for
the sake of convenience and to avoid repetition of certain points, all are
discussed simultaneously.
7 Heard Adv. for plaintiff and Adv. for defendants at length.
Perused the Notice of Motion, affidavit in support of Notice of Motion,
plaint and the documents annexed to the plaint, compilation of
documents of plaintiff, reply of defendants and the documents filed by
them. Also perused the affidavits of Mr. Suresh Shankar Angane and
Chandrakant Shivram Sawant sworn in favour of plaintiff.
8 It is pertinent to note that the subject matter of the suit is
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the transfer of tenancy in respect of suit premises i.e. room No.30
situated at Tardeo, Mumbai. It is undisputed that the original tenant i.e.
principal tenant of the suit premises was Balkrishna Tamhankar who
was the father of plaintiff and earlier tenant Dashrath. It is also not
disputed that the tenancy was transferred by the principal tenant in
favour of said Dashrath and after the demise of Dashrath, it has been
transferred by the Corporation in favour of defendant no.3 on the basis
of Ration Card and other documents produced by him.
9 The Adv for plaintiff has advanced arguments that in the
year 1995, during the period of transfer of tenancy, the tenancy used to
be transferred by hereditary heirship and it was not governed by the
newly enacted Maharashtra Rent Act 1999. The defendant No.3 is not
the heir of either the principal tenant or deceased Dashrath. The
tenancy cannot be transferred under Will or Jahirnama. There is
collusion in between defendant No.1 and 2 and defendant No.3 in
transferring the tenancy in the name of defendant No.3. The defendant
No.3 had forcibly took possession of suit premises. The Ration Card
forgedly prepared by him has been already cancelled by the Passing
Authority. Therefore, the plaintiff is entitled for getting the transfer of
tenancy in her name.
10 In support of said submissions, the plaintiff has tendered
certain documents on record, including the affidavit of indemnity bond,
affidavit on declaration, electricity bills, rent receipts, heirship
dt.2/10/2020, letter dt.11/10/1999 by Dashrath Tamhankar to BEST
and the BEST receipts, RTI application moved to BEST undertaking as
well as Rationing Authority, cancellation order dt.1/12/2018 by
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Rationing Authority, police complainants and reply dt.19/08/2020 and
letter of instructions by the defendant.
11 Relying upon said documents, it is said that the plaintiff
being the legal heir of original plaintiff is entitled for the tenancy of suit
premises. Hence, defendant No.3 shall be restrained from creating any
third party interest in the suit premises.
12 The defendant No.3 has relied upon the Jahirnama
dt.03/02/2016 prepared by Dashrath Tamhankar in his favour. On the
basis of said document, it has been contended that the defendant No.3
is the person who legally hold the tenancy rights of suit premises.
13 The defendant No.1 and 2 have produced the
correspondence and documents showing the entire procedure through
which the tenancy got transferred in favour of defendant No.3
alongwith the application moved by defendant No.3 and the inspection
report dt.20/06/2019 and 30/07/2019.
14 It is apparent from record that undoubtedly, as per
inspection report dt.20/06/2019 and 30/07/2019 the defendant No.3
was found in possession of suit premises. The defendant No.3 had
applied before the competent authority for transfer of tenancy in his
name and the tenancy claim has been decided by the defendant No.1
and 2 as per the rules prescribed for said purpose. It is also evident that
the defendant No.3 had given undertaking and indemnity bond to the
Corporation stating that he will solely responsible for any claim raised
by any person including legal heirs of the principal tenants if anyone
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comes forward and proved in the Court of law about the entitlement for
tenancy rights. He undertook that he will vacate the premises in favour
of Corporation. It transpires from the record that on the basis of said
correspondence, the defendant No.1 and 2 have transferred the tenancy
in the name of defendant No.3.
15 However, there appears justified reasons behind the
application moved by plaintiff also. It transpires from the record that
the earlier tenancy was transferred in the year 1995 and at that time,
tenancy used to be transferred on the basis of heirship. The
Maharashtra Rent Control Act 1999 was not applicable. Above all, it is
a matter to be decided on merit whether the tenancy can be transferred
by way of executing will or making Jahirnama. At present juncture, it is
the factual position that the defendant No.3 is in possession of suit
premises on the basis of tenancy rights transferred by defendant No.1
and 2 in his favour. It is crystal clear that he is not the Class I legal heir
of principal tenant. The witnesses Suresh Angane and Chandrakant
Sawant sworn affidavits that they are neighbours of deceased principal
tenant and they never seen defendant No.3 residing in the suit
premises. The specific documentation regarding legitimate transfer of
tenancy by deceased Dashrath in favour of defendant No.3 is not on
record. Moreover, the tenancy can be transferred only by the landlord
and not by the tenant without consent of landlord. The plaintiff is the
daughter of principal tenant. The defendant No.1 and 2 have rightly
pointed out that they have transferred the tenancy in the name of
defendant No.3 on the basis of their circulars dt.11/01/1989 and
13/07/1990 which says the transfer of tenancy shall be made in the
name of actual occupant from the names of principal tenants. The
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plaintiff has made submission that she was not regularly residing in the
suit premises but she was frequently visiting there. Later on, she started
residing there and the premises was under her legal occupation. She
further contended that she put lock to the suit premises which was
forcibly broken upon by the defendant in the year 2019 and from that
time, the defendant No.3 has occupied the suit premises. From said
pleadings, it transpires that as per the averments of the plaintiff, she
was residing in the suit premises and it was in her occupation. The
record also shows that Ration Card on the basis of which the defendant
No.3 got tenancy transferred in his name has been cancelled by the
Rationing authority. In said circumstances, I hold that there is
substance in the averment of plaintiff that she is one of the legal heir of
principal tenant who was residing in the suit premises. The plaintiff has
moved application before the competent authority for transfer of
tenancy in her name. In said circumstances, it appears just and
necessary to decide the exact tenancy claim of plaintiff and defendant
No.3 on merit by giving them the opportunity to put forth material
evidences on record. Till them, the suit premises needs to be kept in
proper possession without any possibility of its transfer. If the interim
protection is not granted, and if the property has been transferred by
any mode during pendency of the suit, there will be multiplicity of
litigation
16 Prima facie, case has been put forth by the plaintiff by
producing material documents on record regarding her claim for
tenancy. Hence, considering all these circumstances, I hold that the
plaintiff has established existence of prima facie case and balance of
convenience in her favour. If the temporary injunction is not granted
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and third party rights are created, the plaintiff may suffer irreparable
loss and it will create multiplicity of litigations. Hence, plaintiff is
entitled to get the equitable relief of temporary injunction till final
decision of the suit. Hence, I have answered point Nos.1 to 3 in
affirmative as 'Yes'.
AS TO POINT NO.4:
17 In view of affirmative findings as to point Nos.1 to 3, I hold
that the Notice of Motion deserves to be made absolute. Hence,
following order is passed.
ORDER
1 Notice of Motion No.1478 of 2020 is made absolute in
terms of its prayer clause(a).
2 By way of temporary injunction, pending the hearing and
final disposal of the suit, defendant No.3 and anyone claiming through
him are restrained from selling, disposing off, transferring, alienating or
creating any type of third party interest of whatever nature in respect of
suit premises i.e. Room No.30, admeasuring 300 sq. ft. builtup situated
on the 4th Floor, Bane, Compound, “H” Block, Tardeo, Mumbai.
3 Notice of Motion is disposed off.
Date:10/02/2023.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Dictated on :10/02/2023. Gr.Mumbai.
Typed on :17/02/2013
Signed on :17/02/2013
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/02/2023 05.55 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
10/02/2023.
JUDGMENT/ORDER signed by P.O.on 17/02/2023.
JUDGMENT/ORDER uploaded on 18/02/2023.
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