Interim Order 1

Order Details: Copy of Judgment
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MHCC010046972020 Presented on : 31/10/2020
Registered on : 23/11/2020
Decided on : 25/01/2023
Duration : 2 Y 2 M 26 D
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.07
S. C. SUIT NO.1278 OF 2020
Mr. Tejas Kashinath Redkar
Aged about 50 years, Occ: Consultant
Adult, Indian Inhabitant residing at flat
No.18, Bwing, Vanita Building.
Also known as The Mazgaon Docks
Employee's Vanita Cooperative Housing
Society Limited, Nahur Road, Vishwakarma
Nagar, Mulund West, Mumbai 400080.
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] …Plaintiff
V/s.
1 Mr. Kiran Kashinath Redkar
Aged about 54 years, Occ: Service
604, Harmony, Plot No.6, Sector – 1,
Khanda Colony, New Panvel West,
Navi Mumbai – 410206.
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2 Mr. Bhushan Kashinath Redkar
Aged about 52 years, Occ: Service
Adult, Indian Inhabitant residing at
Flat No.18, BWing, Vanita Building
Also known as The Mazgaon Docks
Employee's Vanita Cooperative Housing
Society Limited, Nahur Road, Vishwakarma
Nagar, Mulund West, Mumbai 400080.
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] ...Defendants
Appearance :
Ld. Adv. Shraddha Khandhadia for plaintiff.
Defendant Nos.1 and 2 in person.
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CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 25/01/2023.
J U D G M E N T
(Under Order 12 Rule 6 of Code of Civil Procedure)
1 This is a suit filed for partition and injunction. The subject
matter of the suit is described as below :
“A flat admeasuring 380 sq.ft. carpet area being Flat No.18, B
wing, Vanita Building, also known as “The Mazgaon Docks
Employees Vanita Cooperative Housing Society Ltd”,
Vishwakarma Nagar, Nahur Road, Mulund West, Mumbai
400080”.
(for the sake of brevity be referred to as the “suit property”.)
2 The plaintiff has come with the case that the suit property
belongs to his parents, he and defendant Nos.1 and 2 are his real
brothers. After the death of the parents, the plaintiff and defendants
are the only legal heirs and entitled for an equal share in the suit
property. The plaintiff and defendant No.2 were residing in the suit
property and shared equal expenses of society maintenance, electricity
bills, etc., however, the defendants have avoided mutating their names
in the record of the society in the place of their parents and avoided to
provide the details about the share certificate and details of the movable
properties belonging to their parents. It is his contention that the
defendants are having intention to grab the suit property and to
dispossess him from his suit property. Therefore, initially, he filed the
suit for injunction, restraining the defendants from disturbing his
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possession over the suit property and creating third party interest in
respect of suit property. Later on he added the relief of partition
claiming that the defendants are denying the share of the plaintiff in the
suit property, thus, he prayed for grant of injunction as well as partition
of the suit property, declaring him entitled for 1/3rd share.
3 Initially, the defendants appeared through their counsel
and the matter proceeded for hearing of Notice of Motion for
injunction, where the parties were directed to maintain status quo.
Later on the defendants appeared and submitted that they are unable to
pay advocate fees and they want to proceed in the matter in person.
Their submission was taken on record as per the roznama dated
16/09/2022. They have tendered affidavit in the form of written
statement on 25/11/2022, submitting that they are ready to give 1/3rd
share to the plaintiff. Considering their submission, their affidavitcum
written statement was taken on record as written statement vide
Exh.05. As per their written statement, the defendants have clearly
admitted share of the plaintiff in the suit property and that the plaintiff
and defendants are the only legal heirs of their parents.
4 As the defendants appeared in person, they were given an
understanding regarding the consequences of their submission, even
though they have submitted that they are ready to give 1/3rd share to
the plaintiff, their submission is also taken on record in the roznama
dated 16/09/2022. They also reiterated their contention in the written
statement at Exh.05, admitting the right of the plaintiff to the extent of
1/3rd share in the suit property. Considering the fact that the
defendants have admitted 1/3rd share of plaintiff in the suit property,
the Ld. Counsel for plaintiff has submitted that the suit be decreed as
per the provisions of Order 12 Rule 6 of Code of Civil Procedure. I have
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explained the submissions of the Ld. Counsel of plaintiff to the
defendants, who are also present today in Court to which they have
consented and submitted that the suit may be decreed granting right to
the plaintiff to the extent of 1/3 share in the suit property. In view the
rival submissions, I am of the view that plaintiff and the defendant
Nos.1 and 2 are entitled for equal share in suit property. Thus, suit
deserves to be decreed as per the provision under Order 12 Rule 6 of
Code of Civil Procedure, holding that the plaintiff is entitled for 1/3
share in the suit property.
5 So far as the other injunction reliefs are concerned, the
plaintiff has filed another Notice of Motion No.212/2021, claiming that
the defendant No.2 has dispossessed him from the suit property,
removing all the belongings of the plaintiff. Same type of submission
were made on 21/01/2021 and it was taken in the roznama on that day
and the defendant Nos.1 and 2 has denied the allegations. However, as
per the submission of the plaintiff itself, he is claiming dispossession at
the hands of defendant No.2, therefore, the relief of injunction does not
survive. With regard to the relief of restraining the defendants from
alienating the suit property is concerned, as the defendants have
admitted 1/3rd share of the plaintiff in the suit property, it will be
apposite to direct them not to create third party interest to the extent of
share of plaintiff till the partition has effected by metes and bounds.
6 The plaintiff has also filed Notice of Motion No.2784/2021
and 1583/2020 for interim injunction and for restraining the
defendants from dispossessing the plaintiff from the suit property, these
motion deserves to be disposed off in terms of final order.
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7 Considering the fact that the plaintiff and defendants are
real brothers, and defendants have admitted share of plaintiff, saddling
the costs would amount to increase in enmity between them. Thus, it
will be just and proper to call upon them to bear their own costs. In the
result, I proceed to pass the following order.
ORDER
1. S. C. Suit No.1278/2020, is hereby partly decreed.
2. It is declared that the plaintiff is entitled for 1/3rd
share in the suit property.
3. The defendants do deliver 1/3rd share of the plaintiff
in the suit property.
4. The defendants are hereby permanently restrained
from creating third party interest in the suit property
to the extent of 1/3rd share of the plaintiff.
5. The plaintiff is directed to initiate final decree
proceeding as required by law, forthwith.
6. The Notice of Motion No.2784/2021 and 1583/2020
are hereby disposed off in terms of final order.
7. Preliminary decree to be drawn up accordingly.
(Judgment pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 25/01/2023 C.R. No.03
Dictated on : 25/01/2023
Transcribed on : 27/01/2023
Signed on :
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“Certified to be true and correct copy of the original signed order”.
30/01/2023
at about 5.45 p.m.
(Ms. Sonali S. Sawant)
Stenographer (GradeIII)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 25/01/2023
Order signed by Hon'ble Judge on : 30/01/2023
Order uploaded on : 30/01/2023
at about 5.45 p.m.
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
EXHIBIT NO.07A
S. C. SUIT NO.1278 OF 2020
Mr. Tejas Kashinath Redkar
Aged about 50 years, Occ: Consultant
Adult, Indian Inhabitant residing at flat
No.18, Bwing, Vanita Building.
Also known as The Mazgaon Docks
Employee's Vanita Cooperative Housing
Society Limited, Nahur Road, Vishwakarma
Nagar, Mulund West, Mumbai 400080.
]
]
]
]
]
]
]
] …Plaintiff
V/s.
1 Mr. Kiran Kashinath Redkar
Aged about 54 years, Occ: Service
604, Harmony, Plot No.6, Sector – 1,
Khanda Colony, New Panvel West,
Navi Mumbai – 410206
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2 Mr. Bhushan Kashinath Redkar
Aged about 52 years, Occ: Service
Adult, Indian Inhabitant residing at
Flat No.18, BWing, Vanita Building
Also known as The Mazgaon Docks
Employee's Vanita Cooperative Housing
Society Limited, Nahur Road, Vishwakarma
Nagar, Mulund West, Mum400080.
]
]
]
]
]
]
]
] ...Defendants
Appearance :
Ld. Adv. Shraddha Khandhadia for plaintiff.
Defendant Nos.1 and 2 in person.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 25/01/2023.
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O P E R A T I V E P A R T O F T H E J U D G M E N T
1. S. C. Suit No.1278/2020, is hereby partly decreed.
2. It is declared that the plaintiff is entitled for 1/3rd
share in the suit property.
3. The defendants do deliver 1/3rd share of the plaintiff
in the suit property.
4. The defendants are hereby permanently restrained
from creating third party interest in the suit property
to the extent of 1/3rd share of the plaintiff.
5. The plaintiff is directed to initiate final decree
proceeding as required by law, forthwith.
6. The Notice of Motion No.2784/2021 and 1583/2020
are hereby disposed off in terms of final order.
7. Preliminary decree to be drawn up accordingly.
(Judgment pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Greater Bombay
Dated : 25/01/2023 C.R. No.03
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