Order 1

Order Details: Notice of Motion
Pdf Text: NM 1828/18 in S.C. Suit No. 1936/16
1 Date : 03.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1828 OF 2018
IN
S.C. SUIT NO. 1936 OF 2016
(CNR NO.MHCC01005937 2018 )
Mr. Angad Yadav .. Plaintiff
Versus
Mr. Somti Yadav & Anr. .. Defendants
Appearances :
Mr. S.Rajput, Ld. Adv. for plaintiff present.
Mrs. Sadhana Yadav, Ld. Adv. for defendant no.1 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 03.08.2019
1. The plaintiff has filed instant Notice of Motion for injunction
restraining the defendant no. 2 from handing over the possession
of permanent alternate accommodation which would be offered to
the defendant no. 1 in lieu of Room No. 42 Sahyadri Colony,
Sakha Kr.7, Golanji Hill Road, Sewree, Mumbai – 400 015.
(hereinafter shall be referred to as “suit property”).
2. It is further prayed by the plaintiff that, during pendency of
the suit, defendant no. 1 be restrained from creating any right title
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and interest in respect of permanent alternate accommodation
which would be allotted to the defendant no. 1 in lieu of suit
property.
3. It is further prayed by the plaintiff that during pendency of
the suit, direct the defendant no. 1 to pay 50% of rental income
which is received by the defendant no. 1 towards the rent of
alternate accommodation.
4. It is the case of plaintiff that he is the coowner of the suit
property which was purchased jointly by his father namely Mr.
Dhanraj Yadav and defendant no. 1. The defendant no. 1 is his
close relative and his uncle. It is contended by the plaintiff that
since the date of purchase of the suit property his father and his
two uncles namely Mr. Gunai Yadav and Gunraj Yadav and
defendant no. 1 were residing all together in the suit property.
The plaintiff has completed his studies by staying in the suit
property.
5. It is further contended by the plaintiff that his father and the
defendant no. 1 was looking after and was in use and occupation
of the suit property alongwith others. His uncles namely Mr.
Gunai Yadav and Gunraj Yadav were shown in Electoral Roll (list).
In the Ration Card, his father's and his uncles names are included.
However, the name of father Mr. Dhanraj Yadav has been illegally
deleted from the Ration Card by defendant no. 1.
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6. It is further contended by the plaintiff that, in the year 2010,
the suit property was likely to be redeveloped in the
redevelopment scheme in which the family members have decided
that all application which would be required to make to the
appropriate authority would be made by the defendant no. 1 only
to avoid the further complications. The defendant no. 1 has
undertaken and also assured that he will complete all the
formalities under redevelopment scheme on behalf of others. In
his name and he will acknowledge the joint rights of the plaintiff.
Therefore, defendant no. 1 on 20.10.2009 executed an affidavit
whereby he was agreed to give equal right in the proposed flat as
well as monthly rent till the development of the building takes
place.
7. It is contended by the plaintiff that being the defendant no. 1
is the close relative and he was in good faith under impression that
the defendant no. 1 will give him the share in the suit property as
well as amount of rent. However, instead of paying his share, the
defendant no. 1 has siphoned the monthly accommodation given
by the builder and defendant no. 1 is not ready to give his share in
the suit property.
8. It is contended by the plaintiff that, the defendant no. 1 is
getting sum of Rs. 1,62,000/ per annum since 2011 to 2015, in
which the plaintiff is entitled to the 50% of the amount.
Therefore, the plaintiff filed instant suit for declaration and
injunction against defendant no. 1.
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9. The Notice of Motion as well as suit is resisted by the
defendant no. 1 by filing his reply. It is contended by the
defendant no. 1 that he was residing in the hut no. FSON 2/11/15
situated at Sahyadri Colony, Shakha No. 7, Golani Hill Road,
Sewree, Mumbai. The aforesaid hut was in the name of Mrs.
Kamal Chandrakant Ujgare. The said Ujgare has relinquished her
right title and interest in the hut in favour of defendant no. 1 by
executing Relinquishment Deed dated 12.07.1990.
10. It is contended by the defendant no. 1 that, since then he
was in exclusive peaceful, uninterrupted use, occupation and
possession of the suit property till it was handed over to the
defendant no. 2 for redevelopment.
11. It is further contended by the defendant no. 1 that as alleged
by the plaintiff Gunraj and Dhanraj were residing in the suit
property, they were residing adjacent to his room till 1994 and
thereafter, they have shifted to Kalwa, District Thane. It is
contended by the defendant no. 1 that, Mr. Gunraj and Mr.
Dhanraj entered their names fraudulently and mischievously in his
Ration Card behind his back therefore, he has removed his name
from Ration Card. The defendant no. 1 further denied that he has
executed alleged affidavit dated 20.10.2009. The aforesaid
affidavit is forged document and does not bear his signature. The
defendant no. 1 has denied his relationship with the plaintiff and
claim to be dismissal of the Notice of Motion.
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12. Heard Ld. Adv. Mr. S. Rajput for the plaintiff and Ld. Adv.
Mrs. Sadhana Yadav for the defendant no. 1. Perused Notice of
Motion, reply as well as other documents available on record.
Upon considering the same, following points arise for my
determination :
POINTS FINDINGS
1. Whether the plaintiff has made
out prima facie case to grant tempo
rary injunction in his favour?
NO
2. Whether the balance of
convenience lies in favour of the
plaintiff?
NO
3. Whether the irreparable loss
would caused to the plaintiff, if tem
porary injunction is refused?
NO
4. What Order? Notice of Motion is
rejected with cost.
REASONS
AS TO POINT NOS. 1 TO 4 :
13. It is specific case of the plaintiff that the suit property was
purchased jointly by his father Mr. Dhanraj Yadav alongwith the
defendant no. 1. His father alongwith his two uncles Mr. Gunai
Yadav and Mr. Gunraj Yadav were residing in the suit property
alongwith the defendant no. 1. He has completed his studies by
staying in the suit property. In the year 2010, the suit property
went into redevelopment scheme. It was mutually decided
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between family that the entire procedure and formalities in respect
of the redevelopment shall be done by defendant no. 1 and the
defendant no. 1 shall recognize right of the plaintiff. Therefore, as
on 20.10.2009, they have executed an affidavit wherein the
defendant no. 1 has recognize his share in the suit property as well
as agreed to part with monthly rent which was being paid by the
defendant no. 2.
14. The plaintiff in order to prove primafacie case, has relied
upon the affidavit dated 20.10.2009. The plaintiff further relied
upon his College Leaving Certificate, Electoral Roll (list) and
Ration Card.
15. It is vehemently argued by the Ld. Adv. for the defendant no.
1 that the suit property was originally belonging to Mrs. Kamal
Chandrakant Ujgare. On 12.07.1990, she relinquished her right
title and interest in favour defendant no. 1. Therefore, the
contention of the plaintiff that the suit property was purchased by
the father of the plaintiff and defendant no. 1 jointly is totally
incorrect. The plaintiff failed to file single document showing
purchase of the property jointly by the father of the plaintiff and
defendant no. 1.
16. It is further argued by the Ld. Adv. for the defendant no. 1
that, as per contention of the plaintiff that his father was expired
in the year 2011 at his native place whereas in the alleged affidavit
dated 20.10.2009, it is mentioned that the father of the plaintiff
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Mr. Dhanraj Yadav has expired. Therefore, the statement in the
plaint is contrary to what is stated in the affidavit. The Ld. Adv.
for the defendant no. 1 further contended that the font used to
prepare the alleged agreement is “Calibri Light” which was
available for being used in the year 2013. It is further contended
by the defendant no. 1 that the stamp paper of alleged affidavit
dated 20.10.2009 purchased by one Mr. Gunai Yadav. In fact as
per law, the stamp paper ought to have been purchased either in
the name of plaintiff or in the name of defendant no. 1. Thus, it is
vehemently contended by the Ld. Adv. for the defendant no. 1 that
the alleged affidavit dated 20.10.2009 appears to be bogus, sham
documents which could not be relied at present. In support of her
contention, she has relied upon Judgment of Bombay High Court
reported in 2009(2) ALL MR 108 in case of M/s. KBC Pictures V/s.
A.R. Murgadoss & Ors.
17. It I further argued by the Ld. Adv. for the defendant no. 1
that, the College Leaving Certificate is filed by the plaintiff shows
that the plaintiff took admission on 15.06.1971 and he studied
upto 31.05.1975, Thus, it clearly shows that the plaintiff never
done his schooling in Mumbai. As per his College Leaving
Certificate, it shows that the plaintiff completed his education in
Uttar Pradesh. Therefore, the contention of the plaintiff that he
has completed his studies while staying in the suit premises is
primafacie false.
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18. It is further argued by the Ld. Adv. for the defendant no. 1 is
that the plaintiff relying upon Electoral Roll (List) wherein the
Dhanraj Yadav and Gunraj Yadav were residing in the Room No.
43 and 44 whereas, the suit property is Room No. 42. Thus, it is
submitted by the defendant no. 1 that the plaintiff in order to get
temporary injunction is to made out strong primafacie case which
has plaintiff failed. Hence, the temporary injunction should not be
granted in favour of the plaintiff.
19. Per contra Ld. Adv. for the plaintiff argued that the Notice of
Motion was prepared by the earlier advocate who has
inadvertently mentioned wrong date of the death of the father of
plaintiff. In fact father of the plaintiff died in 2011. The identity
card issued by ESI Corporation of his uncle Mr. Gunai Yadav shows
the address of old room no. 3/12/15 which is of suit property. The
defendant no. 1 himself has executed the Affidavit on 20.10.2009,
acknowledging his right in the suit property. Hence, Ld. Adv. for
the plaintiff argued that he has made out primafacie case. It is
further argued that if the interim relief is rejected they would
suffered irreparable loss which could not be compensated in terms
of money.
20. On the basis of pleadings of the parties, it appears to me that
the plaintiff claimed the right, title and interest in the suit property
vide affidavit dated 20.10.2019 wherein, it is mentioned that the
property is jointly purchased by the father of the plaintiff and
defendant no. 1. However, the plaintiff failed to file single
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document in order to support the aforesaid contention. On the
contrary, the defendant no. 1 has filed one Relinquishment Deed
which shows one Mrs. Kamal Chandrakant Ujgare has relinquished
her right, title and interest in the suit property in the year 1990
and since then the defendant no. 1 has occupied the suit property.
Thus, in my view, the plaintiff failed to prove primafacie case to
grant interim injunction in his favour. Therefore, in my view, the
Notice of Motion needs to be rejected with cost. Thus, I proceed to
pass the following order :
ORDER
1. Notice of motion no. 1828 of 2018 is hereby rejected with
cost.
2. Notice of Motion No. 1828 of 2018 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 03.08.2019 Greater Mumbai
Dictated on : 03.08.2019
Typed on : 03.08.2019
Draft Submitted on : 03.08.2019
Checked on : 05.08.2019
Signed on : 05.08.2019
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10 Date : 03.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
06/08/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
03/08/2019
JUDGMENT/ORDER signed by P.O.
on
05/08/2019
JUDGMENT/ORDER uploaded on 06/08/2019
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