Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1740/19(Suit 2758/19)
MHCC010047682019
IN THE BOMBAY CITY CIVIL COURT FOR GR.MUMBAI
NOTICE OF MOTION NO.1740/2019
(CNR No. MHCC010047682019)
IN
S. C. SUIT NO.2758/2019
Rajendra Dnyanu Naraynkar ..Plaintiff
V/s.
1. Smt. Laxmi Bhai w/o. Balkrishna
2. Mrs. Rajeshree Rajesh Shinde
3. Padmaja Balkrishna Narayankar
4. Shridhar Balkrishna Narayankar
5. Gitanjali Balkrishna Naraynkar
6. Smt. Vimal Anna Kadam.
7. Smt. Chhaya Mohan Shinde
8. Smt. Prabha Krishna Shinde
9. Smt. Savitri Tara Chand Shinde
10. Advait Builders and Developers
11. Vishal CHS Ltd. .. Defendants
Appearances :
Adv. Nand Lal Agrawal for plaintiff.
Defendant nos. 1 to 5 present.
Coram: His Honour Judge
Shri. A.H.Laddhad
(C.R. No.03).
Date : 12.4.2022.
ORDER
1. The plaintiff filed instant Motion seeking following reliefs :
(a) Hon'ble Court may be pleased to grant adinterim injunction
against defendant no.10 restraining to deliver/give Rs.15,000
per month (50% share of rent/ compensation) with further
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increase of Rs.1000 per year to the defendant nos. 1 to 5 till
the disposal of the suit.
(b) Hon'ble Court be pleased to direct defendant no.10 to
pay/deliver/give Rs.15,000 per month rent/ compensation
with further increase of Rs.1000 per year to the plaintiff, till
the disposal of the suit.
(c) In the alternative, Hon'ble Court may be pleased to order the
defendant no.10 and direct him to deposit the aforesaid
amount in the court regularly during pendency of the suit
and whoever found entitled to this amount may be ordered to
be given to the party
(d) cost of the notice of motion.
(e) Such other further relief as the nature and circumstances of
the case may require in the interest of justice.
2. It is the contention of the plaintiff that, originally his father
namely Dnyanu Abba Narayankar was tenant of room no.136/4568,
Nehru Nagar, Kurla(E), Mumbai. Thereafter the entire building was
redeveloped in the year 1977. His elder brother Balkrishna being
elder, was residing in the said room. It is submitted that, his father died
on 27.1.2002 leaving behind his widow, who also died on 9.11.2003.
It is submitted by the plaintiff that, being one of the sons of original
tenant, he is entitled for the 1/6th share in the suit property.
3. It is submitted that, his elder brother Balkrishna expired on
5.6.2005. The plaintiff further contended that, recently in the year
2018, notice of redevelopment was received. Therefore, in order to
make proper record he visited the Society whereupon, he has received
an affidavit giving consent by him to his brother Balkrishna for
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becoming sole member of the suit room.
4. It is alleged that, the said affidavit is forged one. He has
not executed such affidavit. In fact, being one of the legal heirs, the
plaintiff is also entitled for compensation of transit accommodation.
Therefore, he filed present suit along with Motion.
5. Motion is opposed by the defendant no.1 to 5 by filing their
say. It is contended by the defendants that, by virtue of consent given
by the plaintiff and the defendant nos.6 to 9, later Balkrishna became
sole owner by nomination and after their death, defendant nos. 1 to 5
are entitled to the suit premises. Hence, they prayed for rejection of the
Motion.
6. Heard both sides. Perused pleadings of the plaint, Motion
and reply. The plaintiff filed instant suit for partition on the basis that
he is one of the legal heirs of the original tenant Dnyanu Narayankar.
The defendants resisted the claim on the ground that, the plaintiff
himself and other legal heirs transferred/ relinquished or given no
objection for the nomination of the deceased Balkrishna.
7. I have perused aforesaid affidavit, which appears to be
signed and notarized in presence of two attesting witnesses. The
allegation of the plaintiff that, the aforesaid affidavit is forged is a
question of trial. At present, the plaintiff claiming share in the
compensation amount paid by defendant no.10. The plaintiff himself
has admitted that his brother Balkrishna was residing in the suit
premises. The aforesaid compensation is given in lieu of possession,
which is not the benefit attached to the property or right in the
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property. Hence, I am of the view that, in the aforesaid facts and
circumstances , the plaintiff is not entitled to receive aforesaid
compensation from defendant no.10. Hence, I do not find substance in
the notice of motion and same deserves to be dismissed with following
order :
ORDER
1. Notice of Motion 1740/2019 is dismissed with costs.
2. Notice of Motion is disposed of accordingly.
(A.H.Laddhad)
Judge,
Dated: 12.4.2022 City Civil and Sessions Court,
Dictated on : 12.4.2022 Gr.Bombay (CR 03)
Typed on : 13.4.2022
Draft given on : 13.4.2022
Signed on : 18.4.2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
Date 18.4.2022 at 3.00 pm (Nitin V. Ubale)
UPLOAD DATE AND TIME Selection Gr. Stenographer(Gr.1)
Name of the Judge (With Court room no.) Shri A.H.LADDHAD (C.R. No.3)
Date of Pronouncement of JUDGMENT/ ORDER 12.4.2022
JUDGMENT/ORDER signed by P.O. on 18.4.2022
JUDGMENT/ORDER uploaded on 18.4.2022
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