Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment 1637/2018
MHCC010066132018
Presented on : 04-06-2018
Registered on : 04-07-2018
Decided on : 02-09-2023
Duration : 5 Y. 2 M. 28 D.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
S.C. SUIT No. 1637 OF 2018
1. Shri Shivlal Chunilal Kharwa, }
aged about 71 years, residing at }
6th Kharwa Lane, First Floor, 28, }
Govardhan Building P. B. Marg, }
Mumbai 400 004 }
Rider-I
2. Vinod Ratilal Kharwa }
Age 68 years, Occ: Courier Service }
3. Mahendra Amrutlal Kharwa }
@ Mahendra Amrutlal Kharwa }
Age 66 years, Occ: Service }
4. Mrs. Bharti Pramod Kharwa, }
Age 55 years, Occ: Bus Service }
5. Vipul Pramod Kharwa }
Age 31 years, Occ: Service }
6. Hetal Pramod Kharwa }
@ Hetal Kapil Kharwa }
Age 29 years, Occ: service. }
7. Hitesh Pramod Kharwa }
Age 28 years, Occ: Service }
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8. Hasmukh Ratilal Kharwa }
Age 57 years, Occ: Service }
9. Nitin Ratilal Kharwa }
Age 52 years, Occ: Service }
10. Mrs. Meena Anil Kharwa }
Age 43 years, Occ: Housewife }
11. Vishal Chandrakant Kharwa }
Age 35 years, Occ: Service }
all adult Indian inhabitants, residing }
at 28, Govardhan Building, Ground }
Floor, 6th Kharwa Lane, P. B. Marg, }
Near Jarimari Mata Mandir, }
Mumbai 400 004 }
12. Dhiraj Amrutlal Kharwa }
Age 57 years, Occ : Service }
residing at Kharwa Panchayat }
Building, 3rd Floor, Room No.13, }
6th Cross Kharwa Lane, }
Near Play House Khetwadi, }
Mumbai 400 004
}
13. Raksha Gopal Kharwa, }
Age 57 years, Occ : retire }
residing at Mahadev Dhana Bldg., }
1st Floor, Room No.9, 6th Kharwa }
Lane, P. B. Marg, Mumbai 400 004 } ...Plaintiffs
Vs.
Smt. Sugrabai Mohammedali
adult, age not known
As far as the plaintiff knows her
address Falkland Road, 6th Kharwa
Lane, (C.S. No.32 Girgaon)
Chawl, Ground Floor, Mumbai 400 004 } ...Defendant
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Appearance
Learned Advocate Mr.Sarambalkar i/b Roshansingh Thakur for the
plaintiffs.
Ex-parte against the defendant.
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 2nd September, 2023
JUDGMENT
This is a suit for declaration that the plaintiff Shivlal is the
absolute owner being legal heir of late Shri. Chunilal Chhotalal Kharwa
of the suit property namely plot of land and dwelling house and
tenement admeasuring about 25 Sq. Yards/22.5 Sq. Mtrs. bearing
Cadastral Survey No. 1/921 of Girgaon Division, being and lying at 6th
Kharwa Lane, Govardhan Building, Patthe Bapurao Marg, Mumbai.
2. The plaintiff’s case in brief is that late Chunilal Chhotalal
Kharwa alias Chunilal Chhotalal Contractor had seven sons including
the plaintiff Shivlal and two daughters. Out of those seven sons only
four including plaintiff Shivlal had rights in the suit property. Out of
those two daughters, one married daughter already expired issueless
whereas the other expired unmarried. The defendant is wrongly shown
as the owner of the land and building bearing Cadastral Survey No.
1/921 in the Revenue Record by virtue of sale deed dated 13.9.1962.
The other heirs of late Chunilal Chhotalal Kharwa have given consent to
the plaintiff Shivlal to file the suit in respect of suit property.
3. It is further the case of the plaintiff Shivlal that by Deed of
Indenture dated 24.5.1937, one Govardhan Mohan Kharwa, the owner
of plot of land and structure thereon bearing Survey No. 1/921 of
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Girgaon Division, Mumbai Mortgaged the said property (suit property)
with late Chunnilal Chhotalal Kharwa i.e. the father of plaintiff for Rs.
1000/- vide duly registered Mortgage Deed, describing the said
property in the Schedule as land, dwelling house and tenement in
Kharwa Galli admeasuring about 25 sq. yds. equal to 22.5 sq.mtr. or
thereabout bearing Cadastral Survey No. 1/921 of Girgaon Division,
Mumbai, assessed by the Assessor and Collector of Mumbai Municipal
Corporation at Municipal rates and taxes under “D” Ward No.2258, Old
street No.32, New street No.28 and bounded as follows-
East – Public Passage, West – Galli, North – Galli, and
South – C.S. No.922.
4. It is further pleaded that said Goverdhan Mohan Kharwa
died leaving behind him 3 sons namely Harilal, Nagindas and Budhalal,
who were the members of joint Hindu family of said Goverdhan
Kharwa. By sale deed dated 13.11.1975 executed by Budhalal
Goverdhan Kharwa, Bhaganwas son of Harilal Goverdhan Kharwa,
Kalidas son of Nagindas Goverdhan Kharwa and Dorilal son of Nagindas
Gowardhan Kharwa sold and conveyed the said property bearing
Cadastral Survey 1/921 to the father of plaintiff Shivlal for a valuable
consideration of Rs. 3500/- duly received by them. By virtue of the said
sale deed, said Chunilal, the father of plaintiff Shivdas, became the
absolute owner of the suit property. The entire building known as
Goverdhan Building is in exclusive use, possession and occupation of
the heirs of late Shri. Chunilal Chhotalal Kharwa uninterruptedly,
without any objection by anybody including the defendant. The
defendant was never in occupation, possession and use of the suit
premises nor has she exercised so called ownership right over the suit
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property in any manner. The plaintiff’s father late Chunilal Chhotalal
Kharwa was paying the assessment bills in respect of the suit property
and after his death, the plaintiff is paying the same.
5. It is averred that the revenue record inadvertently and
wrongly show that one Godavari wife of Shankar Mane was the owner
of the suit property and she had sold the suit property to one Buttaji
who in turn sold suit property to defendant. In fact said Godavari
Shankar Mane sold and conveyed plot of land bearing old No. 535 and
546, new No. 14059, 14056, A/14066, old survey No. 4 & 5 and new
survey No. 5551, 5552 & 5553 bearing Cadastral Survey No. 932 of
Girgaon Division by Deed of Conveyance dated 26.6.1935 to one Buttaji
with Chawl assessed for the property taxes by “D” Ward under No.
2241, admeasuring 276 sq. yards = 248.4 sq. metres. (approximately) ,
Street No.2-11 and second property bearing Collector Land Revenue
No.535 & 546 bearing new No. 14059, 14056 and A-14066 bearing old
survey No. 4 & 5, new survey No. 5571, 5572 & 5573 bearing Cadastral
Survey No. 921 (part) and assessed by Municipal Corporation under “D”
Ward No. 2241. It is further stated that the said sale deed executed by
Godavari by reference No. 3590 of 1935 that Cadastral Survey No.921
(part) and property assessed by B.M.C. is totally different from the suit
property. Said Godavari Mane never sold and conveyed the property
bearing Cadastral Survey No.1/921 of Girgaon Division to said Bhuttaji
or anybody else. Said Godavari Mane was never the owner nor had she
any right of whatsoever nature in the suit property and hence she could
never sell and convey the suit property bearing No. 1/921 and assessed
by B.M.C. No. 2258 . Thus said Bhuttaji being not the owner of
Cadastral Survey No. 1/921 which was previously owned by Goverdhan
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Mohan Kharwa cannot legally and validly sell and convey the same to
the defendant. There is thus mistake occurred in Deed of Conveyance
dated 13.9.1962 executed by Bhuttaji in mentioning survey No.1/921
instead Survey No. 921 (part). After the demise of plaintiff’s father
when the plaintiff Shivlal approached the office of the B.M.C. seeking
permission to make some repairs in the suit property, the B.M.C. official
asked him to submit no objection from the landlord and that is how the
plaintiff came to know about the wrong and incorrect entry being made
in respect of the suit property in the name of the defendant. On
21.11.2013 and 21.1.2014 the plaintiff wrote letters for entering the
name of the plaintiff’s father in the Revenue Record to which the
Collector of Revenue by letter dated 20.3.2014 bearing No. 2353/7786
asked him to file some forms along-with documents. Ultimately, the
plaintiff Shivlal issued a notice dated 1.9.2015 u/s. 150 and 155 of the
Maharashtra Land Revenue Code to the Collector, calling upon him to
remove the name of defendant Sugrabai with respect to Cadastral
Survey No. 1/921 and to enter the name of Chunilal Chhotalal Kharwa,
the father of the plaintiff Shivlal. The Collector entered the plaintiff’s
objection to the said entry in the name of defendant Sugrabai but didn’t
take further action in the matter. Thereafter, the plaintiff issued notice
u/s. 80 of the Code of Civil Procedure to the Government of
Maharashtra on 25.03.2015 through his advocate. However, there was
no response from the Government. Since all the attempts made by the
plaintiff Shivlal seeking correction in the revenue record pertaining to
the suit property went in vain, the plaintiff has to file the present suit.
6. From the perusal of the record it is apparent that the
plaintiff Shivlal amended the plaint and impleaded the other legal heirs
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of deceased Chunilal Chhotalal Kharwa as a party plaintiff and pleaded
that the said legal heirs/representatives of late Chunilal Chhotalal
Kharwa have given written consent dated 20.8.2022 for entering the
name of the plaintiff Shivlal or original owner Chunilal Chhotalal
Kharwa in the revenue record pertaining to the suit property.
7. The defendant despite being served by substituted service,
having not appeared in the suit, vide order dated 26.2.2019, the suit
has been proceeded ex-parte against the defendant and accordingly
heard ex-parte.
8. From the perusal of the record it is apparent that on
17.09.2019, the plaintiff Shivlal filed his affidavit of examination - in -
chief vide Ex. 8 and produced documents in support of the claim vide
List of documents Ex. 9. Due to outbreak of CORONA pandemic, there
was no progress in the suit and it is only on 09.03.2021 the plaintiff
Shivlal could enter the witness box and proved some documents in
support of his claim. On 08.04.2021 he could examine Shri Sainath
Keshav Chaubal, an official from the office of Joint District Registrar-II,
Mumbai as plaintiff’s witness No.2 who produced certified copies of two
documents (Ex. 33 & Ex. 34) along with Letter Ex. 29. On 07.09.2021
the plaintiff Shivlal closed his evidence vide Pursis Ex. 35. The matter
was then fixed for final argument on 01.10.2021. The matter was
thereafter adjourned from time to time and on 11.01.2022 the ld.
counsel for the plaintiff Shivlal filed written notes of argument. On
14.03. 2022 this Court(then Presiding Officer), in view of the averments
made in para No. 1 of the plaint, sought clarification from the plaintiff’s
counsel as regards to necessary and proper parties. On 16.04.20222 the
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ld. Counsel for plaintiff Shivlal made submission that plaintiff will take
out chamber summons to implead parties to the suit. On 14.07.2022 an
application Ex. 31 was moved seeking permission to lead further
evidence and after grant of such permission, the PW 3 Nitin Ratilal
Kharwa was examined on 22.08.2022. The said witness Nitin proved
some documents which are marked as Ex. 39 collectively. The plaintiff
Shivlal then closed the evidence on 06.10.2022 vide Pursis Ex.40. The
ld. counsel for the plaintiff tendered additional written notes of
argument vide Ex. 42 on 31.10.2022 and the matter was posted for ex-
parte judgment.
9. The record would further indicate that on 21.12.2022 the
plaintiff’s counsel tendered draft chamber summons (to join proposed
plaintiffs to the suit) seeking leave to register the same and after grant
of such leave tendered registered chamber summons No. 75 of 2023 in
the Court on 31.01.2023. On 24.04.2023 this Court allowed the said
chamber summons and accordingly the plaintiff no. 2 to 13 came to be
impleaded in the plaint by amending it. On 14.07.2023 the ld. counsel
for the plaintiffs filed written submission vide Ex. 43.
10. From the perusal of the plaint averments and the
documents relied upon by them (particularly Ex. 20 collectively, Ex.23
collectively, Ex. 24 collectively and Ex. 26), what is significant to notice
is that the plaintiffs are aggrieved by the revenue entry whereby and
whereunder the suit property stands in the name of defendant instead
the father of plaintiff Shivlal who legally and validly acquired the same
by virtue of registered sale deed dated 13. 11. 1975 executed by the
vendors namely Budhalal Goverdhan Kharwa, Bhaganwas Harilal
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Kharwa, Kalidas Nagindas Kharwa and Dorilal Nagindas Kharwa. The
plaintiff Shivlal vide his letters correspondence dated 21.11.2013,
21.01.2014, 20.03.2014, 03.07.2014 ( Ex. 18 colly.), legal notice dt.
25.03.2015 (Ex. 23 colly.), notice dt. 01.09.2015 (Ex.24 colly.), letter
dt.18.12.2014 (Ex. 26), etc., asked the concerned authorities viz. the
Collector, City Survey Land Records Mumbai, The Secretary, Revenue
Department, Govt. of Maharashtra, Mantralaya Mumbai, the Hon’ble
Revenue Minister, Govt. of Maharashtra, Mantralaya, Mumbai to make
or cause to be made correction in the said revenue entry so that he
could obtain requisite permission for carrying out necessary repairs in
the suit property. The plaintiffs however, instead of joining the
Municipal Corporation of Greater Mumbai and/or the State of
Maharashtra as a party defendant, filed this suit against Smt. Sugrabai
Mohammedali who doesn’t appear to have challenged the title of late
Chunilal Chhotalal Kharwa (the father of plaintiff Shivlal). It may also
be pertinent to note that as per the averments made in para no.7 of the
plaint, there is apparent error/mistake in the Deed of Conveyance dated
13.09.1962 executed by Bhuttaji in favour of the defendant wherein
Survey No. 1/921 is wrongly/mistakenly mentioned instead Survey No.
921 (part). If that be so, in my view, the plaintiffs ought to have had
sought necessary declaration and/or rectification or cancellation of said
Deed of Conveyance entered into between the defendant and her
vendors by impleading them all as party defendant. In absence of the
Govt. of Maharashtra, concerned public officer, MCGM, and/or the
vendors of the defendant as a party defendant, it is not possible for this
Court to adjudicate upon and settle all the questions involved in the suit
effectually and completely. It may also be observed that the plaint does
not disclose cause of action against the present sole defendant Smt.
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Sugrabai Mohammedali. In this view of the matter, I come to my
considered conclusion that the suit is hit by the principle of non-joinder
of necessary party as contemplated under proviso to Order I Rule 9 and
also by the provision of Order VII Rule 11 (a) of the Code of Civil
Procedure. In the result therefore, the suit must fail. Hence, I proceed to
pass following order:
ORDER
1. The suit stands dismissed under Order I Rule 9 of the Code Of
Civil Procedure.
2. The Plaint stands rejected under Order VII Rule 11 (a) of the
Code Of Civil Procedure.
3. Decree be drawn up accordingly.
Date : 02/09/2023 (V. M. Pathade)
Direct Dictated on : 02.09/2023. Judge, C.R.No.62,
checked on : 18/09/2023. City Civil Court,
Signed on : 20/09/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.09.2023 at 11.05 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. V.M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 02/09/2023
Order signed by P.O. on 20/09/2023
Order uploaded on 21/09/2023
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