Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010055352019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1996 OF 2019
IN
S.C.SUIT NO.1885 OF 2019
Maruti Tatoba Supal. ...Plaintiff.
Versus.
Smt. Sushila Pandurang Supal and another. .… Defendants.
Appearance :
Adv. Vijay Dhadam for plaintiff.
Adv. Bane for defendant no.1 and 2.
Adv. Suprita Poojari for defendant no. 3 to 5.
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 3rd November 2022.
ORAL ORDER
Perused pleading and heard advocate for both parties. This
notice of motion is taken out for relief of injunction under Order 39 Rule
1 and 2 of C.P.C.
2. Brief facts of plaintiff's case are as under :
One Tatoba Supal resident of Village- Latgaon, Tal-Ajara, District
– Kolhapur, had three sons namely Padurang i.e., husband of defendant
no.1 and father of defendant no.2, Mahadev i.e., father of defendant
no.3 to 6 and Maruti i.e., plaintiff. All the sons of Tatoba shifted to
-- 1 of 6 --
ORDER ..2..
Mumbai after completion of their schooling. Pandurang got married
sometime in the year 1983. Another son Mahadev also got married in
the year 1987. Plaintiff got married in the year 1996. Tatoba had
agricultural land at village Latgaon. The wife of Pandurang and
Mahadev were residing with Tatoba at Village Latgaon and were helping
Tatoba in agricultural operation. The wife of Maruti shifted at Mumbai
alongwith Maruti. The joint family of Tatoba acquired one hut/room in
slum area i.e., Hut no.4-3/27, Ramdev Nagar compound no.2, Mumbai
sometime in the year 1991. The said hut was acquired from the joint
family income. Pandurang being elder son was shown as Kutumbh Karta
in the ration card and in the document of said hut. Maruit and his wife
were residing with Pandurang and Mahadev in the said hut jointly. They
were joint in mess and residence. Pandurang and Mahadev were running
taxi. Taxi permits was obtained in the name of Pandurang. Pandurang
expired at the age of 40 years on 23.06.2001 leaving behind widow
Sushila. One son Shekhar and three daughters Vaishali, Maya and
Manisha. Son and daughters of Pandurang were residing at native place
at the time of his death. The children of Pandurang were studying at
native place. After death of Pandurang the name of his widow was
deleted from the ration card of native place and same was entered in the
ration card at Mumbai at the address of suit hut. Her name was entered
in the ration card at the suit hut for transfer of taxi permit in her name.
However, she never stayed in the suit hut. The wife of Pandurang
executed affidavit dated 24.09.2001 and admitted that suit hut belongs
to joint family. Tatoba expired on 04.11.2001. The another son of Tatoba
Mahadev expired on 12.01.2008 at the age of 42 years giving behind his
widow Sunita and four daughters Gayatri, Sanjivani, Tejasvini and
Sarita.
3. The area of suit hut came to be developed under SRA scheme.
-- 2 of 6 --
ORDER ..3..
The documents were executed in the name of wife of Pandurang and
plaintiff for the purpose of redevelopment. After development co-
operative Housing Society in the name and style Parel, Ramdev Nagar
No.2. SRA Co-operative Housing Society came to be established. The
said society issued share certificate in the name of wife of Pandurang,
Maruti and Mahadev. Room No.110 situated at first floor in Sai Shradha
building was allotted to the family of Tatoba. Thereafter Maruti shifted
in the suit premises alongwith his family. Maruti claims his possession in
the suit premises and alleged obstructions in his lawful possession.
Maruti also claims his 1/3 share in the suit hut/premises.
4. The heirs of Pandurang and Mahadev appeared and filed their
defence statement. It is contended that suit simplicitar for injunction is
not maintainable. They also denied title of Maruti. It is contended that
Pandurang was running taxi in Mumbai. Suit hut was acquired by
Pandurang out of his own income and labour. Maruti was minor and was
taking education when suit hut was acquired. The wife of Pandurang
was found eligible to get permanent alternate accommodation in SRA
scheme. After redevelopment possession letter dated 24.06.2013 was
issued in the name of wife of Pandurang. The name of Pandurang also
find place in the ration card. It is alleged that Maruti has stolen
documents in respect of suit hut. It is further alleged that Maruti has
committed fraud on the wife of Pandurang. It is alleged that Maruti has
obtained thumb impression of wife of Pandurang by misrepresentation
and obtained her thumb impression on blank paper and prepared false
affidavit. The heirs of Pandurang claims their exclusive title to suit hut.
Heirs of Pandurang has denied all adverse allegations in the plaint.
-- 3 of 6 --
ORDER ..4..
5. From the above facts and circumstances, following points are
arising for my determination and I have recorded my findings thereon
as under:-
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff has made out prima
facie case ?
In the affirmative as
per final order.
2. Whether balance of conveyance is in
favour of plaintiff ?
In the affirmative as
per final order.
3. Whether plaintiff will suffer irreparable
loss ?
In the affirmative as
per final order.
4. What order and decree ? As per final order.
R E A S O N S
AS TO POINT NO.1 TO 3:
6. Perused pleadings, evidence and heard advocates for the parties.
From the pleadings and evidence on record it is seen that suit hut was
acquired in the name of deceased Pandurang. Agreement executed for
the purpose of redevelopment of slum area under SRA scheme is
brought on record. The wife of Pandurang and Maruti are parties to the
said agreement. The share certificate issued by Parel, Ramdev Nagar
No.2, SRA Co-operative Housing Society Ltd is also brought on record.
The share certificate is in the name of Sushila Pandurang Supal,
Mahadev Tatoba Supal and Maruti Tatoba Supal. Domicile certificate,
Voters I.D., Adhar Card etc., shows the residential address of Maruti and
Pandurang at the suit hut/premises. The documentary evidence suggest
that the suit hut/suit premises is in the joint possession of plaintiffs and
defendants.
7. The plaintiff has came with the case that the suit premises is
joint family property. The learned advocate for plaintiff also made
statement during the course of argument that the wife and son of
-- 4 of 6 --
ORDER ..5..
Pandurang are in possession of one room in the suit premises and Maruti
is in possession of one room. In such circumstances defendants cannot
be restrained from enjoying the suit premises. They are having right to
occupy the suit premises. At the same time they cannot be permitted to
take law in their hand to evict the plaintiff from the suit premises. The
plaintiff is seeking order to restrain defendant from dispossessing them
from the suit premises. It is not the case of plaintiff that defendants are
not having any right in the suit premises. The documentary evidence on
record suggest that plaintiff is in joint possession of suit premises
alongwith wife and son of Pandurang. In case of refusal of order of
injunction there is possibility of dispossession of plaintiff from the suit
premises. In case defendants succeed to dispossess the plaintiff, the
plaintiff will suffer irreparable loss. In such circumstances, the balance
of conveyance lies in favour of plaintiff. In the result, point no.1 to 3 are
answered in the affirmative and following order is passed.
ORDER
Notice of motion no.1996 of 2019 is hereby allowed without
costs.
2. The defendant no.1 and 2 are hereby restrained from evicting
the plaintiff from the suit premises till the final decision of suit.
3. It is made clear that the defendant no.1 and 2 are not restraining
from enjoying their joint possession alongwith plaintiff in the suit
premises.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 03.11.2022
Typed on : 03.11.2022
HHJ signed on : 03.11.2022
-- 5 of 6 --
ORDER ..6..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 03.11.2022 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
03.11.2022
JUDGMENT/ORDER signed by P.O.
on
03.11.2022
JUDGMENT/ORDER uploaded on 03.11.2022
-- 6 of 6 --