Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010057432018
Presented on : 26-04-2018
Registered on : 26-04-2018
Decided on : 04-08-2023
Duration : 5 years, 3 months, 8 days
IN THE COURT OF
COURT 17 ADDL SESSIONS JUDGE AT Mumbai,Mumbai
Presided Over by Shri. S. N. Patil
NOTICE OF MOTION NO.1754 OF 2018
IN
SHORT CAUSE SUIT NO.536 OF 2018
Mr. Kailash Chabinath Sharma
Age: 39 Occupation: Business
Residing at 12/704, MMRDA Complex,
Kanjurmarg(W), Mumbai-400 078. ..Plaintiff
Versus
1.Mrs.Kismati Krushnakumar Yadav
Age: not known, Occupation: Not know
Residing at Room No.714, Building No.12,
MMRDA Complex, Kanjurmarg(W),
Mumbai-400 078.
2. Mrs.Shewanta Arjun Ingale
Age: Not known, Occupation: Not know
Masi Koli Samaj Vasahat, opp Uday Shri Society
Mithaghar Road, Bhandup(East),
Mumbai-400 043.
3. M.M.R.D.A.
Administration Department, 6th floor,
Bandra Kurla Complex, Mumbai-400 051.
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4. The Estate Manager
Re-Development And Rehabilitation
Bandra Kurla Complex, Bandra(East),
Mumbai-400 051
5. Shri Jai Hanuman Society
Building No.12, MMRDA Complex,
Kanjurmarg(W), Mumbai-400 078. ..Defendants
_____________________________________________________________
Ld. Advocate Madhavi Raibagkar for plaintiff
Ld. advocate Pathak a/w Ld. Adv. Subhedar for defendant Nos.3 & 4
Ld. advocate Renuka Kaveria for defendant No.1
_____________________________________________________________
CORAM: HIS HONOUR JUDGE SHRI S.N.PATIL
DATE: 04/08/2023
ORAL ORDER
1. By this notice of motion plaintiff prayed that pending the
hearing and final disposal of the suit, by an order of injunction,
defendants be restrained in any manner dealing with the suit
premises i.e. Room No.714, Building No.12, MMRDA Complex,
Kanjurmarg (W), Mumbai -400 078, and also seeking an injunction
against the defendants not to create third party right, title and
interest in respect of the suit premises.
2. Read the notice of motion and reply of the defendants.
Heard both the sides at length.
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Plaintiff’s case
3. The plaintiff has filed this suit in respect of room no.714,
building no.12, MMRDA complex(hereinafter referred to as the suit
premises). He submitted that suit premises was allotted in the month
of February 2008 to defendant No.2 by defendant Nos. 3 and 4.
Defendant No.5 is the society registered under Co-op. Housing
Society Act. The plaintiff contended that defendant No.1 was the
encroacher in the suit premises. He further submitted that defendant
No.2 executed a sale deed in favour of plaintiff on 28/11/2016 for a
consideration of Rs.20 lacs. Defendant No.2 also executed affidavit,
indemnity bond and power of attorney dated 04/11/2016 in his
favour. But, the possession of the suit premises was not handed over
to the plaintiff. Plaintiff repeatedly requested defendant No.2 to
hand over the vacant possession of the suit premises to the plaintiff
but, defendant No.2 avoided to hand over possession of the suit
premises to plaintiff.
4. He further submitted that he filed an application dated
05/08/2016 under RTI office and he came to know that defendant
No.3 issued a photopass in the name of defendant No.2. He also
came to know that after accepting entire consideration from the
plaintiff, defendant No.2 illegally sold the suit premises to defendant
No.1 and put her in possession of the suit premises. Defendant Nos.3
and 4 transferred the suit premises in favour of defendant No.1 and
defendant No.1 thereafter transferred electric meter in her name.
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Aadhar card of defendant No.1 also shows the name and address of
the suit premises. Defendant No.2 also issued letter to defendant
No.3 and suit premises was given in the year 2008. Plaintiff also
filed complaint against defendant No.2, but, defendants are trying to
obstruct the plaintiff to hand over the possession and also trying to
create third party interest in the suit premises. Hence, plaintiff
prayed for allowing the notice of motion.
Defendant No.1’s reply
5. Defendant No.1 appeared and filed her reply to the
notice of motion and raised strong objection on the ground that
plaintiff has come to the Court with unclean hands. Plaintiff
miserably failed to prove the documents to shows that he purchased
the suit premises from defendant No.2. Plaintiff is a rickshaw driver
whose rickshaw is taken back by the bank. Plaintiff is not paying
maintenance of the society and he is claiming that he purchased the
suit premises for a consideration of Rs.20 lacs. The plaintiff has not
brought on record any document to show how he paid the entire
consideration. He further submitted that plaintiff has criminal record
and there is first information report against him. Defendant No.1 is
staying in the suit premises since last more than 15 years. The
documents produced by the plaintiff are not admitted. Defendant
No.1 is disputing the said documents. The possession of the suit
premises was given in the year 2008, whereas the copy of the family
photopass annexed by the plaintiff is of the year 2010, hence it is
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false. The suit is dismissed against defendant No.2 on 07/10/2019.
With malafide intention, the plaintiff has filed this notice of motion to
grab the suit premises.
6. Considered the rival submissions. Following points arise
for determination, I have recorded findings thereon, for the reasons
to follow, as under:-
Sr.No Points findings
1. Whether the plaintiff has made out prima
facie case against the defendants?
No
2. Whether the plaintiff would suffer
irreparable loss if injunction as prayed for
is not granted?
No
3. Whether the balance of convenience lies
in favour of plaintiff?
No
4. What order? Notice of motion
is rejected.
REASONS
Point Nos.1 to 3
7. Admittedly the suit premises was allotted to defendant
No.2 by defendant Nos.3 and 4 in the year 2008. The plaintiff himself
admitted in para.1 of the plaint that defendant No.1 was the
encroacher with respect to the suit premises. Now, the plaintiff is
seeking relief of injunction by this notice of motion and seeking the
injunction dealing with the suit premises. He further admitted that
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defendant No.2 executed sale deed in favour of defendant No.1 and
name of defendant No.1 was recorded and photopass was also issued
in the name of defendant No.1. In para No.5 of the plaint, the
plaintiff admitted that defendant No.2 was put defendant No.1 in
possession of the suit premises and defendant Nos.3 and 4 also
transferred the suit premises in favour of defendant No.1. The
electric meter and Aadhar card is also stands in the name of
defendant No.1. Considering the pleas of the plaintiff, it appears that
he is coming with the case that he has purchased the suit premises
from defendant No.2 on 28/11/2016. He also admitted that
defendant No.2 also executed a sale deed in favour of defendant No.1
and defendant No.1 is in possession of the suit premises. He also
came with the case that defendant No.1 is the encroacher of the suit
premises. If defendant No.1 is encroacher, then unless and until
following due process of law, defendant No.1 cannot be evicted from
the suit premises. According to the plaintiff, he has purchased the
suit premises from defendant No.2 and also pleaded that defendant
No.2 executed another sale deed in favour of defendant No.1. The
issue of passing title will be decided at the time of final adjudication
of the case. At this stage, it appears that defendant No.1 is in
possession of the suit premises. The electric meter, Aadhar card also
stands in the name of defendant No.1. In such circumstances, the
relief of injunction sought by plaintiff is not entitled to grant in his
favour. Plaintiff also comes with the case that defendant No.1 is
going to create third party interest in the suit premises. But, he
himself has admitted that defendant No.2 also sold out the suit
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premises in the year 2016 to defendant No.1. It appears from the
record that defendant No.1 is in possession of the suit premises since
last 15 years. No any reliable evidence is brought on record to show
that defendant No.1 is going to sell the suit premises or going to
create third party interest in the suit premises. In the result, plaintiff
miserably failed to prove prima facie case, the balance of convenience
lies in favour of defendant No.1 and if injunction is refused, plaintiff
will not suffer irreparable loss. Therefore, I answer point Nos.1 to 3
in the negative and proceed to pass the following order:-
ORDER
1. Notice of Motion No.1754 of 2018 is rejected and
disposed of.
2. No order as to costs.
( S.N.PATIL )
04/08/2023 Judge
City Civil Court, Gr. Bombay.
Dictated on : 04.08.2023
Transcribed on : 18.08.2023
Signed on : 19.08.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
19/08/23 at 04.34 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI S.N.PATIL
Date of Pronouncement of
judgment/order
04.08.2023
Judgment and order signed by P.O. 19.08.2023
Judgment/order uploaded on 19.08.2023
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