Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.1654/2020 ..1..
Order
MHCC010050142020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1654/2020
IN
S.C.SUIT NO. 563 OF 2021
Priyadarshini Dasharath Mitna .. Plaintiff.
Versus
Sunanda Deepak Mhatre and 3 others .. Defendants.
Appearence
Anil Kharatmol, advocate for the plaintiff.
Yogesh Keni, advocate for defendant no.2 to 4.
Suit proceeded ex-parte against defendant no.1.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(Court No.: 2)
DATED : 8th September 2021
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of defendant no.2 to 4 for appointment of the Court
Commissioner to know on which part of land bearing CTS Number the
suit premises i.e., Room No.M/3125/C-196/Census no.157/1, Shankar
Temple, Anik Village, Mahul Road, Chembur, Mumbai -4000 74 is
situated, whether plaintiff is carrying out construction on the suit
premises as per Repair Permission granted by the Municipal Corporation
of Greater Mumbai (MCGM) and for grant of status quo in respect of
the suit premises. Perused the record.
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Order
2. Plaintiff's case is that she is residing in suit premises alongwith
her family since her father-in-law. Defendant no.1 to 4 are neighbours
of the plaintiff. Suit premises is situated on plot no.342 which belongs
to the State of Maharashtra. Suit premises was in dilapidated condition
and required immediate repair. Hence the plaintiff applied to MCGM for
permission. Vide letter dated 17.02.2020, office of MCGM issued
permission to repair the suit premises. On the complaint of husband of
defendant no.1, office of MCGM issued notice dated 19.03.2020 under
section 354(A) of the MMC Act to the plaintiff. Then office of MCGM
issued letter dated 02.09.2020 to the husband of defendant no.1
informing that notice under section 354(A) of the MMC Act is
withdrawn as the suit premises is on government land.
3. On 11.10.2020 at about 9.30 am, husband and son of defendant
no.3 alongwith anti social elements given threat of life to the plaintiff
not to conduct repair work of the suit premises. Hence plaintiff lodged
report but police issued receipt of Non Cognizable offence.
4. Then Deepak Mhatre, husband of defendant no.1 instituted Long
Cause Suit No.1156/2020 in the Bombay City Civil Court against the
MCGM and the plaintiff & her husband ( pending in Court Room No.8)
for injunction restraining plaintiffs from carrying out repairing works in
suit premises and claimed ad-interim relief. After hearing advocates for
the parties, presiding officer of Court no.8 rejected ad-interim relief
against defendants on 21.10.2020.
5. Again on 22.10.2020 at about 9 am, when plaintiff started repair
work of the suit premises, defendant no.1 to 4 alongwith one old lady
namely Narmada Ankush Mhatre entered into suit premises and
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Order
threatened the plaintiff to stop repairing work. Police were called but no
action was taken. Police advised the plaintiff to obtain order from the
Civil Court. Hence the plaintiff filed this suit against defendants for
permanent injunction. Plaintiff also filed notice of motion
no.1562/2020 for grant of temporary injunction.
6. Contention of defendants is that they are co-owner of land
bearing C.T.S. No.335, 335/1 to 335/5 of Village- Anik. Said land was
allotted by the Government to their Predecessor in title i.e., Pandurang
Damaji Patil in lieu of structures existing prior to the year 1966 which
was effected during the set up of Bharat Petroleum Company at Village-
Anik. Pandurang Patil constructed chawl known as Ankush Pandurang
Chawl for his residence. He inducted various tenant in Rooms of said
chawl. Father-in-law of the plaintiff was also inducted as tenant on
monthly rental basis in one room of said chawl. Father-in-law of
plaintiff was paying rent to predecessor of defendants. But on repeated
request to plaintiff by Narmada Ankush Mhatre, plaintiff failed to pay
monthly rent to defendants.
7. Suit premises is not on plot no.342 but on land bearing C.T.S.
No.335/2 of Village-Anik which belongs to defendants. Suit premises is
about 100 to 110 sq. fts. but plaintiff is illegally constructing the
structure of about 357 sq.fts. by encroaching on open space of land
belonging to defendants. On 17.02.2020, plaintiff obtained repair
permission of suit premises by misleading M.C.G.M. Authority. Hence
office of M.C.G.M. issued notice dated 19.03.2020 to stop construction
of the plaintiff. Permission of construction over suit premises is
cancelled but plaintiff's illegal construction is going on.
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Order
8. Plot of land allotted to predecessor in title of defendants is joint
property. Hence Deepak Mhatre, husband of defendant no.1 has no
authority to file the suit no.1156/2020 without consent of other co-
owner which is pending before Court No.8 against MCGM and plaintiff
& her husband. In view of above facts, defendant no.2 to 4 moved
present notice of motion.
9. After hearing advocate for both parties, this Court allowed notice
of motion no. 1562/2020 of the plaintiff on 29.10.2020 and restrained
defendants from disturbing possession and repair work of the plaintiff
over suit premises till decision of the suit.
10. While deciding notice of motion no.1562/2020 of the plaintiff,
this Court taken into consideration contention of both parties and
observed that defendants admitted possession of the plaintiff in the suit
premises and also observed that this Court cannot decide at this stage
whether suit premises is situated on plot/CTS no.342 or CTS No.335/2
of Village-Anik. Admittedly Court Commissioner cannot be appointed to
collect evidence for the parties. Under the facts and circumstances,
present notice of motion is liable to be dismissed with costs. In the
result, following order.
ORDER
1. Notice of motion no.1654/2020 is dismissed with costs.
2. Costs shall follow the event.
3. Notice of motion no.1654/2020 is disposed of accordingly.
(Sunil T. Soor)
Date : 08.09.2021 Judge, City Civil Court, Gr.Mumbai
Typed on : 08.09.2021
HHJ signed on : 08.09.2021
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Order
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08.09.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
08.09.2021
JUDGMENT/ORDER signed by P.O.
on
08.09.2021
JUDGMENT/ORDER uploaded on 08.09.2021
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