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Jud in Suit 1424 of 2018
MHCC010059602018
Presented on : 02-05-2018
Registered on : 12-06-2018
Decided on : 30-09-2024
Duration : 06-Y.04-M.28-D.
IN THE BOMBAY CITY CIVIL COURT, AT GR. BOMBAY
JUDGMENT
IN
S.C. SUIT NO. 1424 of 2018
Exh.-81
Nivrutti Bhausaheb Thosar
Age: 31 years, Occupation: service
of Mumbai Indian Inhabitant
Presently residing at
Kranti Housing Society, Sanjay Nagar,
Park Site, Vikhroi (West),
Mumbai - 400 079 ...Plaintiff
V/s.
1. Priyadarshini Sahakari
Grihanirman Housing Society
having address at Indira Nagar
No.1, Near Datta Mandir,
Sainath Nagar Road,
Ghatkopar (West),
Mumbai - 400 086
2. Young Men's Christian Association
having address at 18, YMCA Road,
Mumbai Central,
Mumbai - 400 008 ....Defendants
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CORAM: HIS HONOUR JUDGE
SHRI. R. R. PATARE
(C.R. NO.1)
DATE : 30th DAY OF SEPTEMBER, 2024
-: Appearances: -
Adv. Pankaj Shah for plaintiff
Adv. Asadullah Shaikh for defendants.
JUDGMENT
(Delivered on this 30th Day of September, 2024)
The plaintiff’s suit is for possession of room no. B-1931,
situated at Priyadarshini Sahakari Grihanirman Housing Society, Indira
Nagar no.1, Sai-nath Nagar Road, Ghatkopar (E), Mumbai; (hereinafter
referred as 'suit room' for the short).
Brief facts of the plaintiff’s case are as under:
2. Plaintiff has purchased suit room under unregistered sale
deed dated 17/06/2017 from one Vilas Rambhau Kudekar for
consideration of Rs.9,85,000/-. The aforesaid Vilas Kudekar executed
irrevocable General Power of attorney and affidavit both dated
17/06/2017. The plaintiff was put in possession of suit room in terms of
sale deed dated 17/06/2017. Pursuant to the General power of attorney
and affidavit executed by Vilas Kudekar, the plaintiff has installed
electric meter at suit room. The electricity bill dated 08/02/2018 is also
received by plaintiff on the address of suit room. Accordingly the
plaintiff has paid said electricity bill. It is stated that the said Vilas
Kudekar was the member of defendant no.1 society. It is further stated
that Aadhar card is issued in favour of plaintiff at the address of suit
room. The plaintiff along with his wife was residing in the suit room.
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3. It is further stated that plaintiff on 18/10/2017 went to his
native place at Pune to celebrate Diwali festival. The plaintiff returned
at Mumbai on 18/11/2017 and found different lock on the door of suit
room and also noticed name plate of defendant no.2. On enquiry, the
plaintiff learn that the said lock was put by the defendant no.1. It is
alleged that the defendant no.1 has dispossessed the plaintiff from the
suit room on 18/11/2017 without following due process of law and
without consent. Thereafter plaintiff by his advocate’s letter dated
05/04/2018 requested to defendant no.1 to remove their lock from the
suit room and also requested to restore his possession in the suit room.
However, defendant no.1 refused and neglected to consider the request
of plaintiff. Hence the present suit is filed under section 6 of the
Specific Relief Act for possession of suit room.
4. The defendant no.1 appeared and filed written statement at
Exhibit-9. The defendant no.2 filed separate written statement at
Exhibit-10 by taking common defence. It is contended that plot of suit
premises is reconstructed by defendant no.2 with the aim of providing
tenements to 43 victims of riot of 1993 with the approval of Bombay
Municipal Corporation, MHADA and police authorities. It is contended
that one additional room was constructed for the purpose of community
centre. Accordingly, 43 rooms came to be allotted to 43 families and
one room was reserved as community centre and the key of the said
room was in the custody of defendant no.1 society. It is contended that
the name of Vilas Rambhau Kudekar was not appearing in the list of
beneficiaries and that no room was allotted to said Vilas Rambhau
Kudekar from whom the plaintiff claims to have been purchased the suit
room. The defendants have denied the right of plaintiff. The defendants
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also denied the possession of plaintiff in the suit room. It is alleged that
the plaintiff by committing fraud some times in the month of October,
2017 manage to installed the electricity meter at the suit room in his
name. The defendant also made complaint in respect of said fact with
the concern department. It is further alleged that on 18/10/2017 the
plaintiff has managed to commit theft of some items belonging to
defendant no.1 from the suit room. Accordingly complaint of the said
incident is made to the police station. The defendant requested for
dismissal of the suit.
5. From the pleading of the parties following issues were
framed at Exh.11 and I have recorded my findings against each of them
for the reasons to be recorded thereunder:-
Sr.No. Issues Findings
1. Whether the plaintiff proves that he was
in possession of the suit premises ?
In the negative
2. Whether the plaintiff proves that
defendant no.1 dispossessed him without
following the due process of law within
six months preceding the filing of suit ?
In the negative
3. Whether the plaintiff is entitled for
restoration of possession ?
In the negative
4. What order and decree ? As per final
order.
REASONS
6. Plaintiff Nivrutti Bhausaheb Thosar lead oral evidence by
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way of affidavit at Exh.12 and in addition, produced documentary
evidence i.e. original sale deed dated 17/06/2017 (Exhibit-14), original
General Power of Attorney dated 17/06/2017 (Exhibit-15), original
affidavit datd 17/06/2017 (Exhibit-16), original Adhar card (Exhibit-
17), original election identity card (Exhibit-18), original ration card
(Exhibit-19), original invoice dated 02/04/2018 issued by Manjiri and
Co. cash distributor (Exhibit-20), Electricity bill dated 09/01/2018,
08/02/2018 and 10/03/2018 are marked as (Exhibit-21/1 to Exhibit-
21-3(Colly.), letter dated 15/01/2018 (Exhibit-22), plaintiff filed zerox
copy of agreement marked as Article-A. Report received from Collector
Stamp (Exhibit-26), ration card at (Exhibit-28), water consumption bill
dated 18/04/2024 (Exhibit-33), List of members marked as Article-A,
and Aadhar Card marked as Article-B. Plaintiff filed evidence closed
pursis at Exhibit-34.
7. Defendant lead oral evidence affidavit of DW-1 Babasaheb
Ambadas Bhalerao at (Exhibit-36)and in addition produced
documentary evidence i.e. certified copy of the resolution of the
Managing Committee meeting held on 18/11/2018 (Exhibit-38), copy
of the minutes of meeting dated 18/11/2018 (Exhibit-39), original
letter dated20/01/1993 issued by defendant no.1 society to the senior
inspector of police (Exhibit-40), original list of members affected during
riots of annexed (Exhibit-41), original letter dated 23/06/1993 to the
project officer, Res.Zone Hutment Remedial Project, Bandra East, along
with list of 43 members and plant of PMGP, (Exhibit-42), original letter
dated 21/04/1993 issued by Chairman, Bombay Housing and Area
Development Board, said authority to the concerned authority (Exhibit-
43), original list bona fide members (Exhibit-44), original letter dated
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09/10/2016 recording the estimate of work and payment received from
the society (Exhibit-45), original notice dated 23/10/2016 showing cost
of repair of the office (Exhibit-46), copy of receipt book showing
payments received from members annexed (Exhibit-47), original
N.C.lodged by chairman of defendant no.1 with the local police station,
Ghatkopar (Exhibit-48), original letters dated 04/11/2016 and
15/10/2017 issued by Jay Malhar Pratishtaan as (Exhibit-49), original
letter dated 23/10/2017 written by defendant no.1 society to the police
(Exhibit-50), RTI dated 10/05/2024, Postal receipt as (Exhibit-51), list
Exhibit-52, original payment receipt made to MHADA by one member
Shaikh Ansar Mehboob Patel (Exhibit-53) and Original receipt of
payment made to MHADA for copy of receipt of member's making
payment of Rs.251/- (Exhibit-54). Defendant also lead oral evidence by
way of affidavit of DW-2 Leonard Salins ( Exhibit-55) and produced
documents i.e., original municipal approved plan showing the 43
tenements and one additional room to served as a community centre
(Exhibit-58), original letter dated 27/04/2018 of defendant no.2
(Exhibit-59), original extract from the minutes of the meeting of the
Board of directors of defendant no.2 held on 27th August, 2021
(Exhibit-60), copy of minutes of meeting dtd. 28/08/2021 (Exhibit-61),
copy of the relevant extract of the minutes of the meeting held on
25/01/1993 (Exhibit-62), office copy of construction order dated
16/02/1993 (Exhibit-63), original of NOC dated 03/03/1993 granted
by Rajiv Gandhi Zopadpatti Sudhar and Niwara Prakalp Project of
MHADA (Exhibit-64), copy of the relevant extract of the minutes of the
meeting of the Board of Directors of the Bombay YMCA held on
03/06/1993 (Exhibit-65), office copy of list of 43 tenants (Exhibit-66),
original Annual Report 1992-93 (Exhibit-67), letter dated 21/04/1994
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(Exhibit-68), document at sr.no.11 is report of the meeting held on
13/02/1993 (Exhibit-69), document at sr.no. 12 original letter of the
YMCA General Secretary's letter dated 29/12/1993 to the then secretary
at the YMCA Ghatkopar Branch (Exhibit-70), document at sr.no.13 is
the 119th (1993-94)Annual report of the YMCA (Exhibit-71),
documents at sr.no.14 is original letter dated 06/11/2017 of defendant
no.2 to Sr.police Inspector, Ghatkopar (Exhibit-72), original letters
dated 07/11/2017 written by the defendant no.2 to the concerned
police (Exhibit-73), letter dated 8th November 2016 written by the
defendant no.2 to the concerned police (Exhibit-74), original letter
dated 30/08/1997 (Exhibit-75), original letter dated 6th November,
1997 (Exhibit-76), original letter dated 14/08/1998 (Exhibit-77).
As to issue no.1 to 3 :-
8. Issue no. 1 to 3 are arising out of same set of facts hence
discussed together. The plaintiff’s suit is for restoration of possession
under section 6 of Specific Relief Act. According to plaintiff he is
dispossessed from the suit room by the defendant from 18/11/2017
without following due process of law. The plaintiff claims his previous
possession in suit room in terms of unregistered sale deed dated
17/06/2017 executed by Vilas Rambhau Kudekar. On the other hand
the defendant came with the defence that Vilas Rambhau Kudekar was
never in possession of suit room. Suit room is a community service
centre and was never allotted to Vilas Rambhau Kudekar. The
defendants also denied the previous possession of plaintiff in the suit
room. It is alleged that the defendant some time in the month of
October, 2017 managed to installed electricity meter at the address of
suit room in his name by committing fraud.
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9. Heard advocates for the parties and perused notes of
argument Exhibit-79 and 80. The learned advocate for plaintiff would
submit that the plaintiff has purchased suit room from one Vilas
Rambhau Kudekar for consideration of Rs.9,85,000/-. He would further
submit that the plaintiff was put in possession of suit room on
17/06/2017 in terms of sale deed executed by Vilas Rambhau Kudekar.
The learned advocate made reference to the sale deed dated
17/06/2017 Exhibit-14, General Power of Attorney dated 17/06/2017
Exhibit-15 and affidavit of Vilas Kudekar dated 17/06/2017 Exhibit-16
and tried to demonstrate that the plaintiff was in lawful possession of
suit room. The learned advocate made reference to Aadhar card,
Identity card, ration card and electricity bill Exhibit -17 to 19 and 21
and would submit that the documents are issued in the name of plaintiff
at the address of suit room. He would submit that the documents on
record are sufficient to establish lawful possession of plaintiff in the suit
room. He would further submit that the defendant no.1 has without
consent and without following due process of law has dispossessed the
plaintiff from the suit room on 18/11/2017. He would submit that the
suit of plaintiff is within six months from the date of dispossession, he
requested to pass decree in favour of plaintiff.
10. On the other hand, the learned advocate for defendant
would submit that the plaintiff was never in possession of suit room.
The learned advocate made reference to the documentary evidence and
pointed out that suit room was never allotted to Vilas Kudekar, the
alleged vendor of plaintiff at any point of time. He further pointed out
that suit room is reserved for community centre. The leaned advocate
would further argued that the possession of plaintiff is not establish and
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therefore question of restoration of possession will not arise. He would
further argue that the possession claimed by a plaintiff should be
juridical for maintaining suit under section 6 of specific relief act. In
support of his contention he relied in the Judgment of Hon’ble Bombay
High Court in the case of Amiruddin vs. Mahamad Jama’l ;reported in
(1891) ILR 15 Bombay; and in the case of K. K. Varma vs.
Narayanadas C. Malkani; reported in ILR (1954) Bombay 950; The
learned advocate would further argue that the plaintiff has failed to
prove his right to retain / hold possession of suit room and therefore the
plaintiff is not entitled to recover possession under section 6 of the
Specific Relief Act. In support of his contention, he relied on the
Judgment of Hon’ble Supreme Court in the case of East India Hotels
LTD. vs. Syndicate Bank, reported in 1992 supp.(2)SCC 29; He also
relied on the Judgment of Hon’ble High Court Bombay in the case of
Shaikh Jabar Abdualh J AI Sabah vs. Ravindra Mukund Chafe and Anr.;
reported in 2013 SCC OnLine Bom 1588; The learned advocate would
further submit that the suit of the plaintiff is barred by limitation.
11. From the cumulative reading of case law cited supra, it is
settled that when a plaintiff brings a suit for recovery of possession
based on possession, he will be entitled to get a decree for possession,
against the defendant under section 6 of Specific Relief Act, without
proving his title. In other words, the plaintiff is required to prove that
before the defendant dispossessed him, he was in possession. It is also
settled that for the purpose of section 6 of the Specific Relief Act, the
possession claimed by a person should be juridical. The juridical
possession means possession which has been got neither by force nor by
fraud. It is settled that the possession cannot be said to be juridical,
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where it is taken behind the defendant’s back who does not have
acquiesce therein.
12. The plaintiff’s suit is under section 6 of the Specific Relief
Act, therefore it is necessary to examine whether the plaintiff has made
pleading regarding his previous possession and dispossession by the
defendant otherwise then in due course of law, within six months of the
suit being brought. The sole point for determination in this suit is
whether the plaintiff was in possession of the suit room within a six
months previous to the institution of the suit and whether he is
deprive of such possession by the defendant otherwise then in due
course of law. Therefore the burden is on plaintiff to prove his juridical
possession in the suit room and not mere isolated acts of trespass. With
this, it is just and necessary to appreciate the pleadings and evidence on
record.
13. According to plaintiff, he has purchased suit room from one
Vilas Rambhau Kudekar for consideration of Rs.9,85,000/- by
unregistered sale deed dated 17/06/2017. He further claims that he
was put in possession of suit room in terms of said sale deed. The
plaintiff further plead that Vilas Kudekar was the member of defendant
no.1 society. In short, it is the case of plaintiff that he was put in
possession of suit room by Vilas Kudekar in terms of unregistered sale
deed dated 17/06/2017. In this back drop the burden was on plaintiff
to establish that Vilas Kudekar was in possession of suit room and that
he put the plaintiff in possession of suit room. The plaintiff is relying on
sale deed Exhibit-14 to establish his possession. The copy of sale deed is
placed on record at Exhibit-14. Clause 4 of the sale deed deals with
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possession of suit room. It provides that, assignor hereby handover
vacate and peaceful possession of the suit room along with document to
the assignee. The sale deed Exhibit-14 do not specifically disclosed the
actual date on which the assignee was put in possession of suit room.
The electricity bill issued in the name of Vilas Rambhau Kudekar on the
address of suit room is annexed along with the sale deed Exhibit-14.
The aforesaid electricity bill is for the month of June-2016 to April-2017
i.e. for period of 11 months. From the said electricity bill, it is seen
that meter reading for the month of June-2016 to April-2017 was zero.
The plaintiff also admits during cross examination that Vilas Rambhau
Kudekar was not staying in the suit room for the period during June-
2016 to April-2017. Except electricity bill issued in the name of Vilas
Rambhau Kudekar, no other document is produced on record to
establish that Vilas Rambhau Kudekar was in possession of suit room
before execution of the sale deed Exhibit-14. Except verbal statement of
plaintiff, there is no other evidence to establish that Vilas Rambhau
Kudekar was in possession of suit room as on 17/06/2017 i.e. on the
date of alleged sale deed.
14. The plaintiff further claims that on 18/10/2017 he went at
Pune to celebrate Diwali festival and returned on 18/11/2017 and
noticed different lock on the door of suit room. The plaintiff specifically
pleaded that on his enquiry, he learn that the said lock was put by
defendant no.1. The plaintiff claims that he is dispossessed from the suit
room on 18/11/2017 i.e. on the day when he noticed different lock on
the door of the suit room. However plaintiff did not plead the actual
date on which the alleged lock was put by the defendant on the suit
room.
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15. The plaintiff claims that the Vilas Rambhau Kudekar was
the member of defendant no.1 society. However, allotment letter in the
name of Vilas Rambhau Kudekar and share certificates issued in his
name by defendant no.1 society is not annexed with the sale deed
Exhibit-14. According to the, plaintiff he has installed electric meter on
the address of suit room in his name and also received electricity bill
dated 08/02/2018. The electricity meter issued in the name of Vilas
Rambhau Kudekar is also brought on record on behalf of plaintiff to
establish that prior to execution of sale deed, Vilas Rambhau Kudekar
was in possession of suit room. The date of sale deed executed by Vilas
Rambhau Kudekar in favour of plaintiff is 17/06/2017. The electricity
bill issued in the name of Vilas Rambhau Kudekar on the address of suit
room shows that meter reading for the month of June, 2016 to April-
2017 was zero. The plaintiff also admits during cross examination that
Vilas Rambhau Kudekar was not staying in the suit room for the period
during June-2016 to April-2017. There is no evidence on record to
suggest that prior to June, 2016 Vilas Rambhau Kudekar was in
possession of suit room at any point of time. From the established
evidence, it is seen that Vilas Rambhau Kudekar was not in possession
of suit room on the date of sale deed executed in favour of plaintiff. The
plaintiff has also produced electricity bill to substantiate his claim
regarding his previous possession. It has come in the oral evidence of
plaintiff that his father is in possession and occupation of room no.B-
1902 of defendant society. It has further come in the evidence of
plaintiff that his father is residing with family members in the defendant
society. It is pertinent to note that the plaintiff has not examine any
witness to establish that he was put in possession of suit room at any
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point of time. The vender of plaintiff Vilas Rambhau Kudekar is also
not examine on behalf of plaintiff to substantiate the case of plaintiff
that plaintiff was put in possession of suit room on 17/06/2017. In
this back drop, the issuance of bill in the name of plaintiff on the
address of suit room is not sufficient to come to the conclusion that
plaintiff was in possession of suit room as on 18/11/2017. Moreover
the plaintiff has not pleaded the actual date of dispossession. The
pleadings and evidence on record, regarding dispossession of plaintiff
from the suit room is of general nature and no specific case is made out.
The incident of dispossession of plaintiff is not proved in the present
case. The defendant no.1 and 2 lead oral evidence and categorically
denied the possession of plaintiff in the suit room.
16. Section 6 of the Specific Relief Act provides special
summary and speedy remedy for a person in possession of immovable
property whatever his title may be thereto to recover such possession
from another who had illegally and without his consent ousted him
there from. However, the person dispossessed has to prove that he was
in possession of immovable property and is dispossessed without his
consent, otherwise in due course of law. In the case on hand, the
plaintiff has failed to establish that he was in possession of suit room at
any point of time. The basic ingredients to invoke section -6 of Specific
relief act is not established in the present case. In the result, decree for
restoration of possession cannot be granted in favour of plaintiff. In
such circumstances, issues no.1 to 3 are answered in the negative and
following order is passed:
ORDER
1. Suit is dismissed with costs.
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2. Decree be drawn up accordingly.
(R. R. Patare )
Judge,
Date: 30/09/2024. City Civil Court, Greater Mumbai.
(C R No.1)
Dictated on :30/09/2024
Transcribed on :30/09/2024
Signed on :30/09/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 01/10/2024 NAME OF STENOGRAPHER(GI)
Mrs. V.V.Mhatre
TIME:
Name of the Judge (With Court
room no.)
Shri R. R. Patare
(Court Room No.01)
Date of Pronouncement of
JUDGEMENT/ORDER
30.09.2024
JUDGMENT/ORDER signed by
P.O. on
01.10.2024
JUDGEMENT/ORDER uploaded on 01.10.2024
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