Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1805 OF 2020
IN
SUIT NO. 1766 OF 2018
Ansari Mohammed Ibrahim Akbar Ali ..Plaintiff
Versus
(1) Mr.Moin Anwar Ashraf and others ..Defendants
Ld. advocate Sapna Khobragade alongwith Adv.Rajesh Khobragade
for the plaintiff
Adv. Khan Javed Akhtar for defendant no.1
Adv. Prajapati for defendant nos.4(a) to 4(f)
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 01st December, 2020.
ORAL ORDER
1. This notice of motion is
interalia tendered by the
plaintiff seeking various reliefs, directing the defendants
to restore back possession of the suit premises,
appointment of Court Receiver, restraining the
defendants from alienating, encumbering, dealing with
disposing of or parting with possession of the suit
premises, restraining the defendants from dispossessing,
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interfering with the possession of plaintiff of a structure
admeasuring 20 sq. feet in respect of the Tea house
namely Bishmilla Tea House, situated at 149/151,
Shuklaji Street, West of Abdur Razzak Shah Dargah,
opposite BMC building, Kabristan, Mumbai-400 008 and
further directing defendant no.1 not to dig any part of
the premises for putting cable wire underneath the suit
premises, for appointment of the Court Commissioner to
visit site and to ascertain the situation.
2. The plaintiff has also filed additional affidavit in support
of the notice of motion. The defendant no.1 has filed
reply and also the limited reply to the additional
affidavit of the plaintiff.
3. In short the case of the plaintiff is that-The plaintiff was
running a tea house namely Bishmilla Tea House,
situated at 149/151, Shuklaji Street, West of Abdur
Razzak Shah Dargah, next to Billal Masjid Gate,
Opposite BMC building, Chota Sonapur, Kabristan,
Mumbai-400 008 admeasuring 60 sq. feet approximately.
The plaintiff was doing seasonal business from the said
premises. The plaintiff, due to health issue and personal
difficulty unable to do the business from the said
premises. The plaintiff with intention to start the
business again from the said premises; on 16/12/2017
had replaced the iron sheets which were rusted,
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surrounded and covered the said premises. On
20/12/2017 at about 12.30 am, one person approached
the plaintiff and informed that defendant no.1 and
others are in the process of dismantling the said
premises. The plaintiff reached the spot and objected
the same. He approached the police authorities. The
police constable visited at the spot and requested the
said person not to demolish the said premises. But they
did not pay heed to the request of police. Defendant
no.1 told the constable not to interfere in the matter,
otherwise, the situation would be out of control. Till
date no FIR has been registered. The plaintiff has
approached Hon’ble High Court seeking direction in that
regard. The plaintiff was dispossessed from the area of
40 sq. feet and could retain 20 sq. feet area. Defendant
no.1 taking advantage of the pandemic situation on
18/11/2020 early morning had demolished part of the
said premises and also removed part articles of plaintiff
lying in the said premises. Defendant no.1 also had
removed otla in the said premises and had demolished
the structure thereby flattening the area to the ground.
The plaintiff has filed the present suit for restoration of
possession of 40 sq. feet and protection of his possession
over 20 sq. feet alongwith this accompanying notice of
motion.
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4. The defendant no.1 has filed reply to the notice of
motion and additional affidavit in reply and resisted the
claim of the plaintiff. The contention of the defendant
no.1 is that suit is barred by Sec.85 of WAQF Act 1995.
The rent receipts of suit property appears to have been
issued by Sunni Mohamedan Grave Yard Trust. Even if
on the basis of alleged receipt, if the plaintiff has any
right, then the alleged suit property is of Sunni
Mohamedan Grave Yard Trust. The plaintiff is falsely
claiming to be a tenant and therefore the suit ought to
have been filed before the Small Causes Court. The
simplicitor suit for injunction without declaration is not
maintainable. The suit is collusive suit between plaintiff
and defendant no.4. The plaintiff has not given
description and detail of 60 sq. feet area. Even the
plaintiff has not filed any map to show 60 sq.feet area
and possession over 20 sq. feet area. In the absence of
identification of the property the suit is liable to be
dismissed. The suit claim is not properly valued. The
suit for possession u/s. 6 of the Specific Relief Act is
barred by law of limitation.
5. By way of additional affidavit defendant no.1 also
pointed out that during alleged period, the defendant
no.1 was not in Mumbai and returned from Lucknow to
Mumbai on 21/11/2020 and therefore the story put
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forth by the plaintiff in the additional affidavit is false.
He prayed for dismissal of the notice of motion.
6. From the rival contention of the parties following points
arise from my determination and findings to it are
recorded for the reasons stated to follow:-
POINTS
1.Whether the plaintiff has made out prima facie case in
his favour?
2.Whether the needle of balance of convenience tilt in
favour of the plaintiff?
3.To whom irreparable loss will be caused?
4. What order?
FINDINGS
1. In the negative.
2. In the negative.
3. Not to the plaintiff
4. As per final order.
REASONS
POINT NOS. 1 TO 3
7. Ld. Counsel for defendant no.1 has tendered the order of
WAQF Tribunal dated 20/11/2019 whereby the
impugned order passed by Chief Executive Officer of the
Maharashtra State Board of WAQF, Aurangabad
accepting the change report in Case No.MSBW/INQUIRY
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N.KRAMANK 42-367/2016 dated 26/10/2016 was
quashed and set aside. He pointed out that by order
dated 25/11/2019 WAQF Tribunal stayed the order for
eight weeks. He also pointed out that the order dated
14/01/2020 of the Hon’ble High Court continuing the
said order dated 25/11/2019 of the Tribunal and
subsequent orders of the Hon’ble High Court continuing
the said order. Ld. Counsel for defendant no.1 argued
that Anjuman-I-Islam has nothing to do with the said
property. He pointed out the letter of the Rent Collector
dated 19/02/2007 filed by the plaintiff showing the
stamp of Sunni Mohamedan Grave Yard Trust. He
argued that the letter dated 02/01/2018 of Anjuman-I-
Islam addressed to Sr. Inspector of Police station shows
that Anjuman-I-Islam was in possession and managing
the affairs of Chota Kabrastan land situated at 149/151,
Shuklaji Street, Chota Solapur, Mumbai, which would
not be sufficient to hold that the affairs of Chota
Kabristan is and was managed by Anjuman-I-Islam. At
this stage, there is an order of the WAQF Tribunal
rejecting the change report of defendant no.1 and
others. The said order is assailed by defendant no.1. It
would not be appropriate to give any findings as to who
is managing the affairs related to Sunni Mohamedan
Grave Yard Trust. Even otherwise, the suit is for
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dispossession and protection of possession of remaining
area of suit premises. The plaintiff is claiming
possessory right based upon the tenancy rights. The
plaintiff asserts that defendant no.1 has nothing to do
with his premises and he is not incharge of the affairs
related to Sunni Mohamedan Grave Yard Trust. The
tenor of the plaint also suggest the same. The issue
which is raised by defendant no.1 is that as per order 31
of The Code of Civil Procedure where there are several
trustess, executors or administrators they shall all be
made parties to a suit and without joining them as
parties to the suit, the suit does not survive. He would
submit that all the trustees are not made party. The
contention of the plaintiff is prima facie against the act
of defendant no.1 dispossessing him. The plaintiff has
not prima facie claimed any relief against the trust and
has claimed relief against the defendant no.1, in his
individual capacity. Therefore at this juncture, the
argument that all the trustees are not joined as party,
does not hold good.
8. The other objection of defendant no.1 is that this Court
has as no jurisdiction as per Sec.85 of the WAQF Act.
For ready reference Sec.85 of WAQF Act is reproduced as
under:-
“Bar of jurisdiction of (Civil Court, Revenue Court and
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any other authority)-No suit or other legal proceeding
shall lie in any (Civil Court, Revenue Court and any
other authority) in respect of any dispute, question or
other matter relating to any waqf property or other
matter which is required by or under this Act to be
determined by a Tribunal”.
9. On reading the above provision it clearly reflects that the
dispute relating to any waqf property or other matter
which is required by or under this Act to be determined
by a Tribunal. The alleged act of defendant no.1 of
dispossession cannot be the question which is required
to be determined under WAQF Act by the Tribunal,
therefore the said objection also does not hold good.
The plaintiff claims to be the tenant of defendant no.4.
His contention is that Shop and Establishment license
was obtained in the name of plaintiff and his relative
late Khatoonbi Abdul Aziz Shah. The plaintiff was doing
seasonal business. He pointed out the letter dated
19/02/2007 issued by Rent Collector Anjuman-I-Islam
intimating the decision of Anjuman-I-Islam to form a
committee to look after Sonapur matter regarding rent,
transfer and repair purposes. He also pointed out letter
issued by Anjuman-I-Islam dated 02/01/2018 wherein it
is mentioned that receipt was issued in the name of
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plaintiff’s grandfather and plaintiff is defacto tenant.
Thus, the plaintiff claims to be in possession of the suit
premises. It is argued that the plaintiff was running
various seasonal business. The plaintiff has filed rent
receipts and Shops and Establishment License. The
Shop and Establishment license is valid upto
31.12.2008. The plaintiff argued that this demonstrates
the possession of the plaintiff over the suit premises.
The plaintiff is unable to carry out the business due to ill
health and he intended to start the business again from
the suit premises, therefore he replaced the iron sheets
which were rusted and covered the said tea house. The
said act was informed to Mumbai Municipal Corporation
of Gr.Mumbai. The defendant alongwith others on
20/12/2017 were in process of demolishing the said tea
house inspite of resistence of the plaintiff. They even did
not care for the police arriving at the spot and ultimately
dispossessed the plaintiff from 40 sq. feet out of 60 sq.
feet. The police did not record the FIR and therefore the
plaintiff approached the Hon’ble High Court.
10. The documents filed by the plaintiff are of the year
2011-2012. But it cannot be the only ground to deny
the claim of the plaintiff. Ld. Counsel for defendant no.1
relied upon the order of the Hon’ble High Court in the
case of Mohammad Arif Modan V/s Khodamorad Sarosh
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in Appeal against order No.31890/2015 decided on
27/11/2015. In that case, the plaintiff had alleged to
have dispossessed the appellants on 08/10/2013 and
claimed possession on the date of dispossession. Here in
this case, the plaintiff is claiming to be in possession in
the capacity as a tenant and there are documents to
prima facie show that plaintiff was in possession of same
premises which he is having Shops and Establishment
license and the rent receipts. Therefore, the ratio cited
in the above judgment with greatest of respect would
not be applicable.
11. Ld. Counsel for defendant no.1 pointed out various
inconsistent pleadings of the plaintiff. He argued that at
one place, plaintiff claims to have been running a
seasonal business of selling of Mutton/Seekh paratha,
bicycle renting etc. and in other place claims to be
running a tea shop. He also pointed out that plaintiff
has started fabrication and leather work from the said
area admeasuring 20 sq. feet. which is in his possession
since 26/04/2018. He argued that without electricity
connection it is not possible for the plaintiff to carry out
work of leather fabrication. There is some inconsistency
in the pleadings but that inconsistency would not
render doubt as regard the possession of the plaintiff
over the suit premises.
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12. At the time of hearing the Ld. Counsel for the
plaintiff argued that he is restricting his relief in this
Notice of motion to the extent of protection of
possession of suit premises with an area of 20 sq. feet.
13. The relief in the notice of motion is for restoration
of 40 sq. feet and protection of possession of 20 sq. feet
alongwith other relief. The main issue which is raised by
the defendant no.1 is identification of the subject matter.
The entire land wherein the tea house of the plaintiff is
situated appears to be a big plot. The portion of 60 sq.
feet is claimed next to Billal Masjid Gate, West of Abdur
Razzak Shah Dargah. This description would not be
sufficient at this juncture to pass effective order. The
scheme of order VII Rule 3 of The Code of Civil
Procedure contemplates that where the subject matter is
immovable property it should be described properly
sufficiently to identify it. The boundary number is not
given. The map of the suit property to show it’s definite
location on the larger plot of land is also not annexed.
The plaintiff claims interim relief for restoration of area
of 40 sq. feet of land without describing 40 sq. feet land.
There can be many samples of 40 sq. feet land and
exactly at which place 40 sq. feet land of plaintiff is
situated is not coming forward. The injunction is prayed
for protection of 20 sq. feet land without giving
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boundaries and exact location of 20 sq. feet land with it’s
length and breadth. Even the map is not attached
identifying 20 sq. feet land.
14. The plaintiff claims that defendant no.1 taking
advantage of pandemic situation had demolished part of
the premises on 18/11/2020. He has removed the coffin
kept at the time of his dispossession and removed the
otla and demolished the structure. They removed the
lock of the ladder which was lying at the suit land. The
ladder was in possession of the plaintiff. The key of the
said ladder is with the plaintiff. The entire plaint is
silent about the plaintiff keeping ladder at the area of 20
sq. feet in his possession. On the contrary, it is the
contention of the plaintiff that plaintiff started
fabrication of leather work from 20 sq. feet since
26/04/2018. If it is the case of the plaintiff, then how
and when he has kept the ladder is not averred in the
plaint and additional affidavit. This prima facie gives
dent to the case of the plaintiff of his alleged possession
over 20 sq. feet of land. In the absence of description of
the suit premises i.e. shop admeasuring 60 sq. feet and
also of 40 sq. feet or of 20 sq. feet , no enforceable order
can be passed. The entire plaint is vague as regard the
description of the premises in possession of the plaintiff.
Thus in that situation, the order of restoration of
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possession of 40 sq. feet land or appointment of Court
Receiver would not be passed. Even the grant of
injunction will not fulfill any purpose. The relief of
restraining the defendant No.1 from creating third party
interest for the premises of the plaintiff cannot be passed
in the absence of description of the premises for which
such order is required to be passed.
15. The relief of appointment of Court Receiver and
appointment of Court Commissioner is without any
foundation in the notice of motion.
16. The plaintiff claims that he was dispossessed of 40
sq. feet area and he is in possession of 20 sq. feet area.
At this juncture, there is no material to ascertain the
alleged possession of the plaintiff over 20 sq. feet of
area. The apprehension of the plaintiff is that defendant
no.1 has removed the coffin which has been kept at the
time of dispossessing the plaintiff and removal of otla.
This act as to how create apprehension in the mind of
plaintiff of his alleged dispossession over 20 sq. feet of
land is not coming forward.
17. Thus the cumulative effect of the above discussion
is that there is no description of the subject matter as
envisaged under order 7 Rule III of the Code of Civil
Procedure and therefore no enforceable order can be
passed. The plaintiff has not made out any prima facie
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case in his favour. In the absence of any description of
the property and absence of legitimate apprehension of
his alleged dispossession, the needle of balance of
convenience does not tilt in favour of the plaintiff.
18. The plaintiff claims that his premises belongs to
the trust i.e. Anjuman-I-Islam and therefore defendant
no.1 cannot personally dispose off the property of the
trust or that of WAQF. There is mechanism in respect of
the disposal of the property of the trust or WAQF. The
sanction of Competent authority is required for the
same. Therefore the said apprehension is also not
legitimate. Thus, there is no irreparable loss to the
plaintiff. In view of the above discussion, I answer point
nos.1 to 3 in the negative.
POINT NO.4
19. In view of the findings to point nos.1 to 3, this
notice of motion needs no consideration. Hence, it is
expedient to pass following order:-
ORDER
1. N/M No.1805/20 stands rejected.
2. Costs in the cause.
(M.SALMAN AZMI)
Judge,
Date: 01.12.2020 City Civil Court, Gr.Bombay
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Dictated on : 01/12/2020
Typed on : 24/12/2020
Signed on : 28/12/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
04/01/2021 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
01/12/2020
Judgment and order signed by P.O. 28/12/2020
Judgment/order uploaded on 04/01/2020
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