Final Order 1

Order Details: Other
Pdf Text: IN THE COURT OF :COURT 4 ADDL SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0102205/2018
Binakumari (SRA) CHS Ltd - Suit Stamp No.4562 of 2018 Vs Mulund Shriram CHS Ltd
Date : 29-02-2020
Business : Adv. Mr. Jitendra Tiwari for plaintiff present. None for
defendant Order on Notice of Motion No. 2205/18 -
ORDER By instant Notice of Motion the plaintiff/Society
has prayed for temporary injunction restraining the
defendant/Society from demolishing the compound wall
situated on plaintiff&amp#039s plot. It is not in
dispute that C.T.S. no.462 belongs to the defendant/Society.
Even though, the plaintiff is claiming that the compound
wall is in plaintiff&amp#039s wall, the Court
Commissioner has filed map prepared on 17.12.2018
showing that the compound wall is in the
defendant&amp#039s C.T.S. no.462 and the disputed
land beyond the compound wall adjoining to
plaintiff&amp#039s plot is part of C.T.S. no.462. The
same position was shown when the survey was carried out
on 08.09.2017. There is no document of the plaintiff in
support of its claim that the compound wall is located in
plaintiff&amp#039s plot. Mere averments in that
regard are not sufficient to establish prima facie case.
According to Ld. Advocate for the plaintiff, the disputed
area beyond the compound wall adjoining to
plaintiff&amp#039s wall is in possession of
plaintiff&amp#039s Society members since long and
therefore, the plaintiff has become owner of the said land by
adverse possession. He has also cited case laws in support
of his argument that a person in settled possession of an
immovable property cannot be dispossed without following
due process of law. In this regard, it is to be noted that there
is no pleading in support of claim of ownership by adverse
possession. Moreover, case of the plaintiff in its plaint is
that the compound wall is located in its plot and the
defendant has no concern therewith. Therefore, the case
laws filed by the plaintiff are not applicable to the facts of
this case in as much as the claim of the plaintiff is without
any documentary evidence. For the reasons given above, I
do not find that the plaintiff has established prima facie
case, balance of convenience and irreparable loss in its
favour. Therefore, Notice of Motion No.2205 of 2018 is
dismissed. Ld. Advocate for the plaintiff orally request to
continue earlier order dated 28.03.2018 for 4 weeks so that
he can prefer appeal against the order. As the order has
continued for last 2 years, the same is continued for a period
of 4 weeks from today. Matter is adjd to 23.04.2020 for
Service.
Nature of Disposal : DISMISSED
Disposal Date : 29-02-2020
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COURT 4 ADDL SESSIONS JUDGE
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