Order 1

Order Details: Notice of Motion
Pdf Text: NM 2490/18 in SU 1631/18 .. 1 .. Order
CNR No. MHCC010080552018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2490 OF 2018
IN
SUIT NO. 1631 OF 2018
Mohammed Zuber Shah ...Plaintiff.
V/s.
Fatima Shakil Zuberi (Kazi) ...Defendant.
Appearances:
Ld. Adv. Mr. Priyanshu Mishra for plaintiff.
Ld. Adv. Shafi Shaikh along with Adv. P.N. Kulkarni for the defendant.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 1st December, 2018.
: ORAL ORDER :
1. The plaintiff has taken out this Notice of Motion and has
requested to grant interim relief of temporary injunction restraining the
defendant from interfering and/or entering the suit property bearing
survey No.288/1 (part) corresponding CTS No.248 & 276 admeasuring
594.75 sq. mtrs. situated as described in the plaint.
2. In the plaint and in the affidavit in support of the Notice of
Motion, what is stated by the plaintiff may be summarized as under :
The plaintiff is Constituted Attorney (C.A.) of Smt. Saida Begum
widow of Gulam Murtaza Mustafa who is owner of the land and
structures standing thereon let out to vaious tenants situated on a piece
of land bearing survey No.288/1 (part) corresponding CTS No.248 &
276 admeasuring 594.75 sq. mtrs. i.e. 711.32 sq. yards, and bounded as
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follows :
That is to say, on towards the NORTH by CTS No.247
partly in occupation of Akhiluddin Kazi and Fatimabai
Jawaharkhan, on or towards the EAST in occupation of
Valiuddin Kazi, on or towards the SOUTH by CTS No.276 in
occupation of Mohd. Laik, and partly in occupation of Abdul
Majid Shah and on or towards the WEST by Swadeshi Mills
Compound hereinafter referred to as the “suit property”.
The said Saida Begum is passing the rent receipts with her
signature to the tenants of the suit property. The suit property was
purchased from previous owner A.H. Wadia trust who had issued letter
to that effect which is dated 05.06.1998 produced with the plaint at
exhibitA. The defendant is a widow of Mr. Shakil Zuberi (Kazi), who
was said to be the brother of one Mr. Valiuddin Sultanuddin Kazi, who
claimed to be the lessee of the land i.e. suit property in respect of 200
sq. yard i.e. 1800 sq. ft. only is a part & portion of suit property
admeasuring 594.75 sq. mtrs.
The suit property was purchased by deceased Gulam Murtaza
Mustafa, Mohammed Razi and Sakhavat Ali by registered sale deed
dated 24.12.1982. In City Survey record, name of lessee Mr. Valiuddin
Sultanuddin Kazi and A.H. Wadia trust have been deleted, but the
names of owner of the structure, who purchased the land from A.H.
Wadia trust are maintained in the City Survey record i.e. property card.
The plaintiff has produced property card with the plaint at exhibitE.
The defendant is interfering and harassing the tenants of the suit
property without having any right and interest in the suit property. The
defendant has no direct interest, right or any entitlement in respect of
the suit property or the structures thereon, which are in possession of
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various tenants of Saida Begum. On 07.04.2018, the defendant came to
Saida Begum and threatened her, if Saida Begum would collect rent
from the tenants. On 27.05.2018, the defendant's son threatened the
plaintiff of dire consequences, if the plaintiff would let out any room.
Noncognizable complaint was filed by the plaintiff on 27.05.2018 in
this regard. The defendant has no right to interfere and to obstruct in
the enjoyment and affairs of the suit property without following due
process of law. The defendant is taking law into her hands and in this
way, meddling day to day activities done in the suit property such as
cleaning the drainage, doing plumbing work, cleaning the open space in
the suit property. Therefore, the plaintiff has filed the instant suit for
declaration that the defendant has no right and for injunction restraiing
the defendant from entering upon the suit property illegally and
unlawfully without following due process of law.
3. The defendant has filed reply to the aforesaid Notice of Motion
and opposed it. According to the defendant, the plaintiff has filed the
instant suit with malafide intention to deprive the defendant and her
family members of the rights in respect of the suit property. The
plaintiff is staying in the suit premises illegally. The plaintiff has
concealed the fact that he is habitual offender and many cases had been
lodged against him. He has collusion with builders and has filed
frivolous suit, so as to deprive lawful owner from the suit premises. The
defendant has already made efforts and has given oral intimation to the
plaintiff to give peaceful possession of the suit premises. The plaintiff
has not come with clean hands. The plaintiff has no locus standi in the
present suit. The plaintiff has not produced any document of ownership
or title. It is denied that the plaintiff is C.A. of Saida Begum alleged to
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be owner of the suit land. The suit premises is still in the name of the
deceased fatherinlaw of the defendant i.e. Mr. Kazi. It is not declared
as a slum. The plaintiff is illegally and forcibly trying to take possession
of the suit premises. The defendant and her family members are being
deprived of legal rights of possession on the suit premises at the hands
of the plaintiff, who is perpetual offender in the locality and acts in
collusion with the builders to acquire the suit premises. According to
the defendant, the plaintiff has no primi facie case nor balance of
convenience in his favour and no irreparable loss would be caused to
the plaintiff, if interim relief is not granted.
For these reasons, the defendant has pleaded that the Notice of
Motion is liable to be dismissed.
4. The plaintiff has filed rejoinder affidavit and has reiterated the
contentions raised in the plaint and the affidavit in support of the
Notice of Motion. It is contended that the documents show that
defendant is trying to suppressed and conceal the facts that her late
fatherinlaw was concerned only with the 200 sq. yards of the land out
of the larger part of the land bearing CTS No.248 in the capacity of
“Pattedar (lessee)” of the A.H. Wadia trust, who was the previous owner
of the property. The defendant is not authorized to use the document of
her fatherinlaw Mr. Valiuddin Kazi. The plaintiff has denied the
allegations made by the defendant against him. It is pleaded in the
rejoinder affidavit that it is true that the trust was the owner of the suit
property and the defendant is the “Pattedar (lessee)” in respect of the
land admeasuring 200 sq. yards only. The defendant has cleverly
mentioned legal right only, but not nature or kind of the right in the
property, which according to the plaintiff, is only as “Pattedar (lessee)”.
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The defendant has also not mentioned the area of land being 200 sq.
yards only to which her fatherinlaw was concerned. Name of the
plaintiff's fatherinlaw Mr. Valiuddin Kazi exists in the record as
“Pattedar (lessee)” and not as owner and that too only in respect of 200
sq. yards area.
5. I have heard the arguments advanced by learned Advocate of the
plaintiff, who has submitted that the plaintiff has prima facie case and
balance of convenience and the plaintiff's case is supported by the
documents produced with the list annexed to the plaint i.e. rent receipt,
ration card, letter of the A.H. Wadia trust dated 05.06.1998 and order
dated 31.12.2001 of the City Survey Officer in respect of City Survey
No.248, P.R. card of City Survey No.248 and 276 etc. He has therefore,
submitted that interim relief may be granted.
6. The learned Advocate of the defendant has filed written
arguments. In his written submissions, he has submitted that the suit is
filed in the name of C.A. of Saida Begum and not in the name of Saida
Begum and, therefore, the suit is not tenable. It is submitted that there
is no proper and clear pleading of the plaintiff. plaintiff's claim is that
Saida Begum is owner of the certain structures of the suit property.
However, the plaintiff has not given description of the said structures at
all. The plaintiff has not even mentioned as to how many structures are
there and what are their dimensions. Hence, on the basis of such vague
pleadings, the plaintiff cannot claim interim relief. It is also submitted
that the plaintiff is seeking negative declaration in the suit that the
defendant has no right in the property without seeking any declaration
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of the plaintiff's own right and, therefore, the suit itself is not tenable. It
is submitted by the learned Advocate of the defendant that admittedly,
the defendant is lessee in respect of the suit property. No demarcation
or division in the suit property is shown by way of map, despite the
contention of the plaintiff that the defendant is concerned to 200 sq.
yards area in the suit property. It is submitted that no tenant has come
forward nor Saida Begum herself has come forward to lodge complaint
against the defendant. Therefore, according to the learned Advocate of
the defendant, this shows that there is no cause of action for the
plaintiff. According to the learned Advocate of the defendant, name of
owner of land Gulam Murtaza Mustafa, the husband of Saida Begum
has been deleted from the property card in the year 2001 as per order
dated 14.07.1999 passed by the Revenue Authorities which is evident
from the property card produced by the plaintiff with the plaint and
marked it as exhibitD. Hence, neither Saida Begum nor the occupants
of the structure have any right to stay in the property, though the said
occupants are tenants of the defendant. According to the learned
Advocate of the defendant, letter dated 05.06.1998, referred in the
plaint by A.H. Wadia charity trust is for giving permission for repair.
The said letter has been issued prior to the year 1998, and in the year
1999, the name of Gulam Murtaza Mustafa has been deleted from the
record. Therefore, it is submitted by the learned Advocate of the
defendant that the Notice of Motion is liable to be dismissed.
7. I have examined the aforesaid submissions and perused the
record. Following points arise for my determination on which I record
my findings as under for the reasons to follow :
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POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In Negative
2. Whether the plaintiff has balance of
convenience in his favour ?
In Negative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In Negative
4. What order? The Notice of Motion is
dismissed, as is being
indicated in the operative
order being passed herein
below.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
8. At the outset, I may observe that the pleadings of the plaintiff in
the plaint is much vague. I may also observe that the defendant's
pleadings in the affidavit in reply is vague more than that of the
pleadings of the plaintiff. With difficulties, I could point out what are
the contentions of the parties as observed herein earlier from their
pleadings.
9. What appears from the pleadings in the plaint is that the plaintiff
is named as Mohammed Zuber Shah as C.A. of Saida Begum. From this,
it cannot be said that the suit is filed by Saida Begum as plaintiff. In the
plaint, what is contended is that Saida Begum is owner of the suit
property and on that basis, the reliefs are being claimed. When Saida
Begum herself is not described as plaintiff in the plaint, it is difficult to
hold that such a relief can be granted on the basis of the plea that Saida
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Begum is owner of the property and the plaintiff Mohammed Zuber
Shah is entitled for the relief on that basis. Secondly, what appears from
the pleadings in the plaint is that there is property bearing City Survey
No.248 and 276 admeasuring 594.75 sq. mtrs. Now, the pleading does
not disclose the boundaries of these two city survey numbers. No sketch
map of these two city survey numbers has been filed with the plaint.
Even, it is not mentioned in the plaint that both these city survey
numbers are adjoining to each other or at distance. While describing the
boundaries in paragraph No.2, it is stated that towards North there is
city survey No.247, partly in occupation of Mr. Akhiluddin Kazi. Then, it
is pleaded in paragraph No.4 that out of this 594.75 sq. mtrs. area, 200
sq. yards area is in occupation of Mr. Shakil Zuberi (Kazi) as lessee. It
appears that the defendant is concerned to this 200 sq. yards area as per
the contention of the plaintiff in the pleadings and in the affidavit in
rejoinder. No sketch map has been filed to define this 200 sq. yards area
to distinguish it from other area of the total suit property 594.75 sq.
mtrs. Moreover, on one hand, the plaintiff is admitting that defendant is
concerned with 200 sq. yards area out of the land admeasuring 594.75
sq. mtrs and the relief being sought against the defendant is in respect
of the total 594.75 sq. mtrs. With all such circumstances in the
pleadings in the plaint, I do not find that the plaintiff has made out
prima facie case for grant of interim relief. Therefore, I hold that the
plaintiff has neither prima facie case nor balance of convenience in his
favour. I also hold that no irreparable loss would be caused to the
plaintiff, if interim relief is not granted. Hence, I have recorded negative
findings on points No.1,2 and 3 and hold that Notice of Motion is liable
to be dismissed and accordingly, I have answered point No.4. Hence, I
proceed to pass the following order.
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: O R D E R :
The Notice of Motion No.2490 of 2018 is hereby
dismissed and it stands disposed of accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 01.12.2018. City Civil Court, Gr. Mumbai
Dictated on : 01.12.2018.
Transcribed on : 03.12.2018.
Signed on : 03.12.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04.12.2018, at 11 40 a.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 01.12.2018.
Judgment/order signed by P.O. on 03.12.2018.
Judgment/order uploaded on 04.12.2018.
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