Final Order 1

Order Details: Other
Pdf Text: NM 2312/2019 and NM 2472/2019 in SU 1965/2019
Order on NM Nos. 2312/2019
Heard both the sides. Perused the application, reply, pleadings and the entire record.
The dispute is amongst sister and the brother regarding the right in the suit flat
left behind by their parents.
The limited relief sought for in this notice of motion is for temporary injunction
restraining defendants from alienating or creating third party interst in the suit
property pending the suit. The Ld. advocate for defendants undertakes that no activity
contemplated by the NM which is sought to be prevented, would be undertaken by the
defendants. In view of this undertaking at bar, the relief in prayer clause 1(a) in NM
stands addressed. The relief in prayer clause 1(b), as of now, is unwarranted. Hence,
the NM stands disposed of in the light of the undertaking, which shall carry its effect.
HHJ SHRI D.R. DESHPANDE
JUDGE
Order on NM Nos. 2472/2019.
Heard both the sides. Perused the application, reply, pleadings and the entire record.
02. Following are the points for determination along-with my findings thereon for
the reasons ensuing :
Sr. No. Points Finding
01. Whether plaintiff has made out prima-facie
case? Yes.
02. Whether balance of convenience lies in
favour of plaintiff? Yes.
03. Whether irreparable loss would be caused
to plaintiff in case injunction is not granted? Yes.
04. What order? As per
final order.
Reasons
03. The dispute is amongst the sister and the brother regarding the right in the suit
flat left behind by their parents.
04. Suit is for injunction restraining defendant from alienating the suit property,
dispossessing plaintiff from the suit property upon getting declaration that defendants
have no right, title, or interst, in the suit property.
05. According to plaintiff, their deceased parents, who were the owners of different
properties inclusive of suit property, in their life time, executed wills bequeathing
different properties with direction for management of suit property, in which, plaintiff
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used to reside with surviving mother,after the demise of father, and after the demise of
mother, she is residing in the suit flat. According to plaintiff, defendants have no right,
title or interest in the suit property under will and they are obstructing plaintiff’s
enjoyment of the suit property.
06. According to defendants, no will was executed by any of parents and they died
intestate. It is defendant No.1, who was exclusively possessing suit flat after the demise
of parents, and it is only thereafter, prior to few days of filing of suit that plaintiff
forcibly entered into the suit flat and she is unlawfully occupying the bedroom of suit
flat; whereas defendants are occupying leaving room and are using kitchen and WC
bathroom.
07. Assuming the defence to be true regarding the fact of parents having been
demised intestate, in such situation also, defendants cannot have exclusive right in the
suit flat to the exclusion of plaintiff, who, in such contingency, would be a co-owner as
a
tenant-in-common as being a class I heir of the propositus. Moreover, the physical
possession of plaintiff as regards one bed room in the suit flat is indisputable in the
light of para 10 of the affidavit-in-reply to the NM, although it is claimed to be an
unlawful possession pursuant to forcible entry after the demise of parents. Even the
will deeds do not give any properitory right as to the suit flat to any of the parties. In
such situation, the apprehension of being dispossessed from the exclusive enjoyment of
bedroom in the suit flat, which cannot be enjoyed without the enjoyment of amenities
in the suit flat viz. WC bathroom/toilet and the kitchen, needs to be addressed as the
non addressal may render plaintiff shelterless from the dwelling house, more
particularly, when plaintiff has made out the prima-facie case of entitlement to
enjoyment of the aforesaid attributes of the suit flat, either from the angle of defence,
or from the angle of plaint averments, till the desires in the will are taken for being
administered as per the plaint version, or till the partition in the joint property of the
class I heirs takes place,if looked from defence angle.
08. The balance of convenience, thus, lies in favour of granting the injunction as
irreparable loss would be caused to plaintiff in case of refusal to grant injunction.
09. Accordingly, the findings to points No.1 to 3 are recorded in the affirmative.
10. Point No.4 : In view of the affirmative findings to points No. 1 to 3, the NM
deserves to be allowed.
In the result, I pass the following order :
ORDER
01. The Notice of Motion is allowed.
02. Defendants are hereby temporarily restrained from obstructing plaintiff’s
exclusive enjoyment of the bedroom and the common enjoyment of the amenities in
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the suit flat viz. the common enjoyment of the WC/toilet/bathroom and the kitchen, till
final disposal of the suit, subject to reciprocal condition of ensuring smooth common
enjoyment of the amenities of the suit flat by the parties.
HHJ SHRI D.R. DESHPANDE
JUDGE
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