Final Order 1

Order Details: Order below exhibit
Pdf Text: OBE 10. in SC Suit No. 2129/19
1 Date : 24.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
ORDER BELOW EXHIBIT NO. 10
IN
S.C.SUIT NO. 2129 OF 2019
(CNR NO.MHCC010074992019)
Shri. Amirzada Shahjada Rahmaullah Khan & Anr. .. Plaintiff
Versus
Shri Sayed Sarwar Sayed Mustafa & Ors .. Defendants
Appearances :
Adv.Rajesh Singh for plaintiff present.
Adv.J.P.Patel a/w Adv.V.T.Dubey for defendant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 24.09.2019
ORDER
1. The plaintiff and defendant no. 1 filed instant Consent Terms
whereby they have agreed to resolve their dispute and differences
arising out of the Agreement dated 01.01.2019 (for conversion of
Tenancy Right into Ownership Right), the Affidavit cum No
Objection dated 01.01.2019 and Agreement for cancellation dated
18.01.2019.
2. The plaintiff by way of the present Consent Term seeking
permission to withdraw the suit against defendant no. 2 and 3, as
-- 1 of 8 --
OBE 10. in SC Suit No. 2129/19
2 Date : 24.09.2019
the defendant no. 1 has already surrendered his right, title and
interest in suit premises bearing Gala No. D, consisting Ground
Plus First Floor, situated at Khan Chaudhary Compound, Survey
No. 15(B), Hissa No. 1, C.T.S. No. 308, N.S.S. Road, Asalpha
Village, Ghatkopar (West), Mumbai – 400 084.
3. It is contended by the Advocate for the plaintiff that the
plaintiff has right of withdrawal of suit as soon as he tendered
pursis of withdrawal. The Court could not refused to allow the
withdrawal of the suit. Every plaintiff has unconditional right to
withdraw his suit unconditionally. The Court may pass formal
order requiring withdrawal and also may order regarding cost, but
the withdrawal is not dependent on the orders of the Court. In
support of his permission, the plaintiff relied on the Judgment of
Hon’ble Bombay High Court in case of Anil Dinmani Shankar
Joshi & Anr. V/s. Chief Officer, Panvel Municipal Council & Anr.
Hence, plaintiff seeking permission to withdraw the suit against
defendant no. 2 and 3 and for withdrawal of the suit in view of the
Consent Term.
4. The application is opposed by the defendant no. 2 and 3. It
is contended by the defendant no. 2 and 3 that all the defendants
have resisted the suit jointly by filing joint Written Statement. It
was specific stand of the defendants that by the Agreement dated
01.01.2019 and No Objection Certificate dated 01.01.2019, the
rights of Tenancy were converted into Ownership rights and
subsequently, the defendant no. 1 executed the Gift Deed in favour
-- 2 of 8 --
OBE 10. in SC Suit No. 2129/19
3 Date : 24.09.2019
of defendant no. 2 and 3. Therefore, by the aforesaid Agreement,
the substantial rights have been created in favour of defendant no.
2 and 3. The plaintiff and defendant no. 1 can not file Consent
Term by taking Uturn which certainly an illegal Agreement
entered into between the plaintiff and defendant no. 1.
5. It is contended by the defendant no. 2 and 3 that, the
compromise between the plaintiff and defendant no. 1 is not
lawful. Hence, such compromise could not be allowed. In support
of their submission, defendant no. 2 and 3 relied on the Judgment
of Hon’ble Apex Court, reported in AIR 1993 Supreme Court
1139 in case of Banwari Lal V/s. Smt. Chando Devi & Anr.
6. Heard both the sides. Perused plaint, Written Statement and
Consent Term. The plaintiff filed instant suit. It is contended by
the plaintiff that the father of plaintiff no. 1 i.e. late Mr. Shahjada
Rahmatullah Khan alongwith the father of the plaintiff no. 2 i.e.
Late Mr. Mohibbul Haq Chaudhary were the original occupant of
plot situated on land and becomes owners by adverse possession of
area admeasuring about 351.7 Sq. mtrs., situated at Survey No.
15(B), Hissa No. 1, C.T.S. No. 308, Village Asalpha, Taluka –
Kurla, Mumbai Syburban District, N.S.S. Road, Asalpha,
Ghatkopar (West), Mumbai – 400084.
7. It is contended by the plaintiffs that after the demise of their
father, now the plaintiffs are the legal heirs of the deceased and
they have succeeded the aforesaid property. Father of plaintiff
-- 3 of 8 --
OBE 10. in SC Suit No. 2129/19
4 Date : 24.09.2019
No. 1 died on 27.02.2019 and father of plaintiff no. 2 died on
17.05.2010.
8. It is contended by the plaintiffs that defendant no. 1 is the
erstwhile tenant of the plaintiffs in respect of the commercial
premises being Gala Nos. A to D situated on the aforesaid
property. The defendant no. 2 is the son of defendant no. 1 and
defendant no. 3 is the sister in law of defendant no. 2.
9. It is contended by the plaintiffs that defendant no. 1 on
25.12.2018 surrendered the possession of Gala No. D having area
admeasuring about 600 sq. ft. situated at Khan Chaudhary
Compound, N.S.S. Road, Asalpha, Ghatkopar (West), Mumbai by
executing the affidavit. (hereinafter shall be referred to as Suit
Gala).
10. The plaintiff thereafter given the said Gala on tenancy basis
to one Shaikh Badre Alam and Devdas Tukaram Rane by executing
Registered Tenancy Agreement.
11. It is contended by the plaintiffs that the defendant by miss
representing and fraudulently, got executed Agreement for
conversion of Tenancy Right into Ownership on 01.01.2019 from
the father of plaintiff no. 1, whereby it was shown as Tenancy
Rights were converted into Ownership Right for a consideration of
Rs. 5,00,000/. It is further contended by the plaintiffs that the
defendant also by misrepresenting and mischievously, obtained
-- 4 of 8 --
OBE 10. in SC Suit No. 2129/19
5 Date : 24.09.2019
Affidavit Cum Noobjection. The plaintiffs came to know about
the aforesaid fact, to which the defendant confess their guilt and
accordingly on 18.01.2019 the defendant cancelled the Agreement
dated 01.01.2019 and No Objection. The plaintiff and defendant
accordingly executed Agreement for cancellation.
12. It is alleged by the plaintiffs that defendants in order to claim
possession and ownership of the Suit Gala affixed the notice on the
suit Gala whereby directing their tenant to pay the rent to them. It
is further alleged by the plaintiffs that on the basis of the aforesaid
Agreement dated 01.01.2019, the defendant no. 3 filed complaint
before the Police Station. Hence, the plaintiff is having
apprehension that their possession will be disturbed by the
defendant on the basis of alleged Agreement for conversion of the
Tenancy Right into Ownership dated 01.01.2019 and no objection
dated 01.01.2019, the defendant will create third party interest
and they will be disposed at the hands of defendant. Hence, the
plaintiff prayed for grant of injunction. Hence, plaintiff filed
instant suit.
13. The defendants resisted the suit by filing their Written
Statement below Exh. 8 and contended that the defendant no. 1
obtained the Suit Gala by paying consideration of Rs. 5,00,000/ to
the plaintiffs. The father of the plaintiff no. 1 and plaintiff no. 2
duly executed the Agreement as well as Affidavit of “No
Objection”. The defendants paid an amount of Rs. 5,00,000/
which has been duly acknowledged by the father of plaintiff no. 1
-- 5 of 8 --
OBE 10. in SC Suit No. 2129/19
6 Date : 24.09.2019
and 2. Thus, on the basis of the aforesaid documents, the
defendants are in possession of suit Gala. On the basis of the
same, the defendant no. 1 on 01.01.2019 executed the Gift Deed
by which the defendant no. 1 gifted the suit Gala to the defendant
no. 2. In pursuance of the aforesaid Agreement, the defendant
inducted the tenant in the suit Gala by name Devdas Tukaram
Rane and Shaikh Badre Alam. The defendant also issued notice to
the tenant Shaikh Badre Alam for vacating the suit premises as the
tenure of the tenancy was completed. Thus, it is contended by the
defendants that they are in possession of the Suit Gala and
plaintiffs have no right, title and interest in the same.
14. On perusal of the pleadings of the parties, it appears to me
that, the real dispute is between the plaintiff and defendant no. 1.
As per Written statement, it is contended by the defendant no. 2
and 3 that, the defendant no. 1 executed Gift Deed in their favour
and thus, they became the owner of the property. Admittedly, the
aforesaid Gift Deed is unregistered document. The alleged right in
favour of defendant no. 2 and 3 flows from the defendant no. 1.
Thus, in view of compromise between the plaintiff and defendant
no. 1, there is no unlawful contract entered into between parties.
Hence, the judgment cited by the defendant no. 2 and 3 is not
applicable in the given case.
15. In view of the judgment of Bombay High Court cited by the
plaintiff, no permission of the Court is necessary for the plaintiff to
abandon his claim. Even otherwise also, the plaintiff is a master of
-- 6 of 8 --
OBE 10. in SC Suit No. 2129/19
7 Date : 24.09.2019
his suit. He can add or delete the parties at his peril. Thus, in
view of the above discussion, in my view, there is no difficulty in
accepting the Consent Term and permitting the plaintiff to delete
the defendant no. 2 and 3. Thus, I proceed to pass the following
order :
ORDER
1. In view of the Consent Term, the plaintiff is allowed to
delete the name of the defendant no. 2 and 3
unconditionally from the array of the suit.
2. Parties to bear their own cost.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 24.09.2019 Greater Mumbai
Dictated on : 24.09.2019
Typed on : 24.09.2019
Draft Submitted on : 24.09.2019
Checked on : 25.09.2019
Signed on : 25.09.2019
-- 7 of 8 --
OBE 10. in SC Suit No. 2129/19
8 Date : 24.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27/09/2019 at 11.05 a.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
24/09/2019
JUDGMENT/ORDER signed by P.O.
on
25/09/2019
JUDGMENT/ORDER uploaded on 27/09/2019
-- 8 of 8 --