Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.2775/2019 1 Suit No.1595/2019
CNR No.MHCC010076502019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.2775 OF 2019
IN
SUIT NO.1595 OF 2019
Rehamunissa w/o Shahid Ali Sayyed .. Plaintiff
Versus
Wajid Ali Sayyed s/o Shahid Ali Sayyed and Ors. .. Defendants
Mr. K. R. Tiwari, advocate for plaintiff
Mr. Bhushan A. Vardhamane, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 13th December, 2019
ORAL ORDER
Notice of motion is taken out by the plaintiff seeking relief of
temporary injunction restraining defendants, their family members,
legal representatives and heirs, person and/or persons claiming through
and or under them from entering into, remaining upon and disturbing
peaceful use, occupation and enjoyment of plaintiff in respect of suit
premises i.e. admeasuring about 20 x 20 square feet, CTS No.321
situated at structure No.168, Sindhi Chawl, near Chirag Nagar police
station, Chirag Nagar, LBS Marg, Ghatkopar West, Mumbai, without
following due process of law.
2. It is the contention of plaintiff that she is in peaceful use,
occupation, possession and enjoyment of suit premises. Defendant
Nos.1, 3, 5, and 7 are her step sons and defendant Nos.2, 4, 6, 8 are
their wives respectively. They all in collusion and connivance with each
other are trying to dispossess the plaintiff from suit premises by means
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of force and pressure. It is further contended that her husband late
Shahid Ali Sayyed had acquired the suit premises from one Kishanchand
in the year 1960 and after acquiring suit premises plaintiff started
residing in the same. Her husband died on 26.11.2014 at suit premises
and since then plaintiff is in peaceful use, occupation and possession of
suit premises. Her husband has acquired one more residential premises
at Ghatkopar which plaintiff handed over to first wife of her husband as
well as defendants. Plaintiff is in possession of documents viz ration
card, Aadhar card, electricity bills, PAN card etc to show her possession
over suit premises. She is residing in the suit premises prior to datum
line of 1962 and carrying on business in the suit premises.
3. It is further contended that after defendants came to know that
MCGM will provide alternate accommodation to the project affected
person, they started pressuring plaintiff to vacate the suit premises and
on her refusal for the same, they assaulted plaintiff and her family
members with the help of local goons. Therefore, she lodged criminal
complaint against them with police. On 18.06.2019, defendants visited
the suit premises with local goon and started putting used furniture in
front of suit premises. When she objected for the same; defendants
threatened her and her family members of dire consequences. Though
plaintiff is in possession of suit premises prior to 1962 but defendants
have bent upon to dispossess her and her family members from suit
premises without following due process of law. Accordingly, plaintiff
urged in above terms.
4. Written statement filed by defendants is treated as reply to
notice of motion. It is contended that plaintiff has not come before this
Court with clean hands and suppressed material facts. She has no right,
title and interest in suit premises. Deceased Najukbee Shahid Ali Sayyed
was first wife of Shahid Ali Sayyed and mother of defendant Nos.1, 3, 5
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and 7. After her death, said Shahid Ali (in short 'Father') got married
with plaintiff in the year 1985 and brought her at premises situated at
G4, Pathan Chawl, Gaodevi, Ghatkopar (W), Mumbai and started
residing there with defendants. Their father was owner of 4 premises in
Pathan Chawl. However, their father and plaintiff have sold said four
premises and used the sale consideration of the same for themselves.
They were residing in independently in another premises on leave and
licence basis. Defendants used to visit suit premises to assists their
father in fruit business. But plaintiff never visited the suit premises and
resided separately at Chirag Nagar, Ghatkopar. Plaintiff intentionally
and deliberately behind the back and without consent of defendants
transferred the electricity bill in her name. It is further contended that
defendants are in possession of Aadhar Card, Election I card, birth
certificate of their children at the address of suit premises to show their
possession over suit premises. Defendants have denied the contentions
and allegations of plaintiff and prayed for dismissal of notice of motion.
5. Perused notice of motion, affidavit in support of it and reply of
defendants. Heard respective counsel for parties.
6. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under :
POINTS FINDINGS
1. Whether plaintiff has got prima facie case? …No.
2. Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
…No.
3. Whether balance of convenience lies in favour of
plaintiff?
…No.
4. What order? As per final order
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REASONS
As to point Nos.1 to 3
7. At the outset, I would like to mention that it is not in dispute
that plaintiff is second wife of Shahid Ali Sayyed who was father of
defendant Nos.1, 3, 5 and 7. It is also not in dispute that deceased
Shahid Ali during his lifetime acquired suit premises. Plaintiff has come
with the case that her deceased husband allotted suit premises to her
and other premises acquired by her deceased husband to defendants so
as to use and occupy the same. But she has not filed any document in
that respect. She has not described suit premises by giving its room
number and four side boundaries. It can be said that description of the
suit premises is vague. From the contention of both parties it is clear
that defendant Nos.1, 3, 5 and 7 are coowners of the suit premises. It is
settled law that possession of one coowner is for and on behalf of other
coowners and coowner cannot claim injunction so as to exclude other
coowners from exercising their right as coowners. Under the garb of
present notice of motion, plaintiff is seeking relief of injunction so as to
deprive above referred defendants from enjoying the suit premises as
coowners of the same. That being so plaintiff is not entitled for relief of
injunction as sought.
8. Defendants have claimed that suit premises has been
demolished by the Corporation but no document is produced on record
to show that whole structure of suit premises has been demolished by
the Corporation. So, contention of defendants in that respect cannot be
accepted at this stage.
9. Plaintiff has filed copy of birth certificate of Mohd. Muid Raza
Shaikh to show that address of parents of said child is shown that of
room No.5, Chirag Nagar, Sindhi Chawl, Ghatkopar West, Mumbai.
However, in plaint, plaintiff has not specifically mentioned room
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number of the suit premises so it cannot be said that it relates to suit
premises only. She has also filed copy of Aadhar card of Sherbano to
show that it was issued at the address of suit premises. She has also
filed copy of electricity bills dated 29.01.2018 and 28.01.2019 to show
that same were issued in the name of plaintiff at the address of suit
premises. She has also filed copy of ration card to show that ration card
No. SD 0141276 has been issued at the address of suit premises and her
name has been entered in the said ration card. It is pertinent to note
that names of defendant Nos.1, 3, 5 and 7 are also entered in the said
ration card. So, it cannot be said that said document demonstrate
exclusive possession of plaintiff over suit premises or on any particular
portion of the suit premises. She has also filed copy of registration
certificate of establishment showing address of suit premises but said
certificate was standing in the name of deceased Shahid Ali. It is not of
much assistance to the plaintiff. She has also filed copy of NC report
and complaints to show apprehension to her from the defendants. But
she failed to bring prima facie material to show her exclusive possession
over suit premises or any portion thereof. On the other hand,
defendants have also filed copy of birth certificate of Tabassum Shaukat
Ali, copy of Aadhar card of defendant Nos.1, 5, sons of defendant No.1
so also copy of Aadhar card of defendant No.3 and his son and that of
defendant No.6 to show that same were issued at the address of Sindhi
Chawl, Chirag Nagar, Agra Road, Ghatkopar West. It tallies with the
address of suit premises. Those documents are of different dates. Had
the defendants have no connection with the suit premises then those
documents would not have been issued at the address of suit premises.
In above facts and circumstances prima facie I do not find merits in the
contention of plaintiff that she is in exclusive possession of suit
premises. As already pointed out the possession of co owner is that of
other coowner so plaintiff has not made out prima facie case for grant
of temporary injunction as sought. So also balance of convenience does
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not lie in her favour and she failed to prove that she will suffer
irreparable loss if relief sought is refused. Hence, I answer point Nos.1
to 3 in negative.
In view of my findings to point Nos.1 to 3 in negative, present
notice of motion deserves to be dismissed. Hence, pass following order.
ORDER
Notice of Motion No.2775 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 13.12.2019 Gr. Bombay
Typed on : 13.12.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.12.2019,
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
13.12.2019
JUDGMENT/ORDER signed by P.O.
on
16.12.2019
JUDGMENT/ORDER uploaded on 17.12.2019
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