Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 2409/19 in Suit 6536/19
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 2409/2019
IN
S.C. SUIT NO. 6536/2019
Mr. Jamaluddin Baitullah Khan ..Plaintiff
V/s.
1. Mr.Mohammad Amin Mohabbat
2. Mr. Aslam Khan ..Defendants
Appearance:
Adv. Mr. Ahmad Ali Khan for plaintiff.
None for defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 11.7.2019.
ORAL ORDER
1. Plaintiff/ applicant has filed this Notice of Motion (N/M)
in a suit for declaration, possession and perpetual injunction against
defendants. The N/M is supported by an affidavit. By present Motion,
the plaintiff has prayed for grant of reliefs of temporary injunction and
directions against the defendants not to create any third party interest
in the suit property during pendency of the suit.
2. On 26.6.2019, I have heard Counsel for the plaintiff and
leave was granted to register draft N/M and the plaintiff was directed to
serve the defendants with writ of summons and N/M and remove office
objections, if any.
3. On 4.7.2019, Ld. Counsel for the plaintiff has filed original
N/M. Defendants no.1 and 2 were absent though served through Ms.
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Sakina Khan, daughter of Aslam Khan, who is defendant no.2 in the
suit, as per Bailiff report. I have perused the bailiff's report affixed on
the N/M. I find that, defendants no.1 and 2 were not available at their
residential address at Ibrahim Chawl, Dargah X Road, Rajiv Gandhi
Nagar, Sonapur, Bhandup, Mumbai 4000078 and daughter of
defendant no.2 Sakina Khan had accepted the copy of N/M and service
of true copy of plaint. Inspite of service, defendants no.1 and 2 are
absent. Hence, N/M is taken out for hearing and passing necessary
order.
4. Ld. Counsel for the plaintiff submitted that, the suit
property are admeasuring 10 X 10 sq. ft., Ibrahim Chawl, Sonapur, as
described in the plaint. The plaintiff claims to be owner of the suit
premises having title, interest over it. The defendant no.1 is uncle of the
plaintiff and defendant no.2 is close relative of the defendant no.1 and
has allegedly purchased the suit premises from defendant no.1.
5. Ld. Counsel for the plaintiff submitted that, the plaintiff has
purchased the suit premises from one Mohd. Mustafa on 20.11.1985 for
consideration of Rs.6000/ and affidavit has been executed having
effect of declaration in favour of the plaintiff in respect of his right, title
and interest in the suit premises and since then, he is occupying the suit
premises.
6. Ld. Counsel for the plaintiff further submitted that, he has
produced necessary documents on record to show his dejure peaceful
possession over the suit premises. These documents include passport, ID
proof issued by Election Commission of India and receipt issued by BMC
bearing no. 1809832. The plaintiff has also relied upon ration card
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mentioning above address but the said ration card is in the custody of
defendant no.1. The plaintiff has come to know that his name has been
deleted from the ration card at the instance of defendant no.1, after the
plaintiff had handed over possession of the suit premises to the
defendant no.1 being his uncle and who was in need of
accommodation, the plaintiff was taking care of defendant no.1 as he
had no children or any legal heirs. The defendant no.1 has no title or
interest to hand over the possession of the suit premises to any third
person including defendant no.2.
7. However the plaintiff has learnt that in the last week of
April, 2019, the defendant no.1 had handed over the possession of the
suit premises to defendant no.2 fraudulently for consideration but
without any legal right, title in the suit premises. Therefore, whatever
documents have been executed between the defendants no.1 and 2 are
illegal and not binding on the plaintiff. The plaintiff has given notice
to the defendant no.1 through advocate on 7.5.2019 and called upon
defendant no.2 to vacate the suit premise within 14 days, but in vain.
Under the above circumstances, it is submitted that, the plaintiff is
entitled for protection of his right, title, interest and possession over the
suit premises, during pendency of the suit. Hence, N/M deserves to be
allowed.
8. I have gone through the grounds stated in the N/M and
documents filed on record along with plaint. It includes affidavit
containing Declaration dated 20.11.1985 executed by Mohd Amin Khan
in favour of the plaintiff, copies of passport, Voter ID and survey slip
issued by BMC. It also includes, copy of notice issued by plaintiff to the
defendants through Counsel on 7.5.2019.
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9. After considering the above documents on record and after
taking into consideration oral submission made by Ld. Counsel for
plaintiff, I find that, the plaintiff is occupying the suit premises.
Therefore, while considering prima faice case and balance of
convenience, I find that, the plaintiff has equitable right and interest in
the suit premises. The question of title and lawful possession can be
considered and decided by the Court during the trial of the case but at
his juncture, during pendency of the suit, while deciding present
Motion, the Court will have to see whether to avoid multiplicity of
litigation, balance of convenience lies in favour of the plaintiff and
whether defendants no.1 and 2 will suffer irreparable loss or injury, if
temporary injunction/ interim order is passed against them.
10. On this count, I find that, prima facie, the occupation of the
defendant no.1 in the suit premises is that of permissible user/ licensee
of the plaintiff, therefore, he has no right, title or interest to create any
3rd party right or interest in the suit premises during pendency of the
suit. Hence, it will be just and proper to partly allow the N/M. No
irreparable loss or injury will be caused to defendants no.1 and 2
because they have no right to create any 3rd party interest in the suit
premises, ignoring equitable right or interest of the plaintiff in the suit
premises. Hence, I proceed to pass following order:
ORDER
1. N/M No.2409/2019 is partly allowed.
2. Defendants no.1 & 2, their agents, representatives
and servants etc. are hereby temporary restrained,
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during pendency of the suit, from creating any
third party interest in the suit premises and from
transferring or alienating the suit premises ignoring
claim of the plaintiff.
3. Authenticated copy of today's Roznama shall be
handed over to the Ld. Counsel for the plaintiff so
as to enable him to communicate this order to the
defendants for their information and compliance.
4. N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 11.7.2019 Gr. Bombay (C.R. 03)
Dictated on : 11.7.2019
Typed on : 11.7.2019
Signed by HHJ on : 12.7.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 16.7.19
TIME: 4. 30 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 11.7.19
Judgment/ order signed by P.O on 12.7.19
Judgment/ order uploaded on 16.7.19
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