Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment SC SU 2237-2019
MHCC010077482019 Presented on : 22.07.2019
Registered on : 05.08.2019
Decided on : 07.05.2025
Duration : 05 Y : 09 M : 04 D
EXHIBIT-32.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO. 2237 OF 2019
Smt. Rahibai Keshav Khandagale
Age : 66 years, Occ : Household, Hindu Adult
Indian Inhabitant of Mumbai presently residing
Flat No : 624, Building No. K-8, New Amrapali
Co-operative Housing Society Ltd. M.M.R.D.A.
Vasahat, Kanjur Marg, Mumbai- 400 078.
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Versus
1. Smt. Housabai Shravan Pandit,
Age : 63 years, Occ : Household
2. Mr. Jagan Shravan Pandit,
Age : 38, Occ : not known
3. Smt. Sandhya Jagan Pandit,
Age : 32, Occ : Household,
Defendant Nos. 1, 2 and 3, All Hindu Adult
Indian Inhabitants of Mumbai residing at Flat
No : 624, Building No. K-8, New Amrapali Co-
operative Housing Society Ltd. M.M.R.D.A.
Vasahat, Kanjur Marg, Mumbai- 400 078.
4. Mumbai Metropolitan Regional Development
Authority,
A statutory authority appointed under Mumbai
Metropolitan Regional Development Act having
its registered office at Bandra Kurla Complex,
Bandra (East), Mumbai- 400 051.
5. Chief Officer, Social Development Cell,
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Mumbai Metropolitan Regional Development
Authority a statutory authority appointed under
Mumbai Metropolitan Regional Development
Act having its registered office at Bandra Kurla
Complex, Bandra (East), Mumbai- 400 051.
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Appearances :
Learned Adv. Mohit Darji for the plaintiff.
Learned Adv. Subhedar for defendant Nos. 4 and 5/MMRDA.
None for defendant Nos. 1 to 3.
CORAM : HER HONOUR JUDGE
SMT. A. V. KASTURE
(C.R.NO.09)
DATE : 07th MAY, 2025
JUDGMENT
(Delivered on 07th May, 2025)
1. This is the suit for injunction and declaration.
2. The brief facts of the plaintiff’s case are as under :
2.1 It is the case of the plaintiff that the plaintiff and the
defendant No.1 are the real sisters and the only legal heirs of their
deceased mother, Shewantabai Gawale. However, after the death of their
mother, the defendant Nos. 1 to 3 illegally occupied the suit flat. The
defendant No.2 by making bogus, false and fabricated documents, got
transferred the electricity connection of the said suit flat in his name. He
also applied for the transfer of the suit flat in his name being the
nominee made by the deceased Shewantabai to the said suit flat. The
plaintiff therefore, issued notice to the office bearers of the society and
also to the electricity company stating the fact that the suit flat was
allotted to the deceased Shewantabai and after her demise, the plaintiff
and the defendant No.1 are her sole legal representatives. On that basis,
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the electricity connection was again re-transferred in the name of
deceased Shewantabai and the office bearers of the society also promised
the plaintiff that they will not allow anyone to transfer the suit flat and
create any third party right in it without prior permission of the plaintiff.
The plaintiff, thereafter, wrote a letter to the defendant Nos. 4 and 5
mentioning all the facts and to take the proper action against the
defendant Nos. 1 to 3. But the defendant Nos. 4 and 5 did not take any
action. Hence, the plaintiff has filed the present suit.
3. Inspite of sufficient directions, the defendant Nos. 1 to 3
have failed to file say. Therefore, ‘No say order’ was passed against the
defendant Nos. 1 to 3 vide roznama dated 27.02.2023. Hence, suit is
proceeded exparte against the defendant Nos. 1 to 3.
4. Heard learned Adv. for the plaintiff and learned Adv. for the
defendant Nos. 4 and 5.
5. The following points arise for my determination. The
findings along with their reasons are recorded hereinafter :
Sr. no. Points Findings
1. Whether the plaintiff proves that she and the
defendant No.1 are the only legal heirs of the
deceased Shewantabai Gawale ?
In the
Affirmative
2. Whether the plaintiff proves that the
defendant Nos. 1 to 3 are in illegal and
unlawful use, occupation and possession of
the suit flat ?
In the
Affirmative
3. Whether the plaintiff proves that she has 50%
right, share and interest in the suit flat and
In the
Affirmative
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entitled for separate possession of 50% share
in the suit flat ?
4. Whether the plaintiff proves that she is
entitled for permanent injunction restraining
the defendant Nos. 1 to 3 creating third part
interest in the suit flat ?
In the
Affirmative
5. Whether the plaintiff is entitled for the
monetary compensation as prayed ?
In the Negative
6. Whether the plaintiff is entitled for the
direction to the defendant Nos. 4 and 5 to
evict the defendant Nos. 1 to 3 from the suit
flat and give its physical possession to her as
prayed ?
Yes, possession
of 50% share in
the suit flat.
7. What orders or decree ? As per final
order.
REASONS
6. To prove her case, the plaintiff has examined one witness,
Mr. Sheshrao Keshav Khandagale as PW-1, by filing his affidavit-in-lieu of
examination-in-chief at Exh.7. She filed documents along with list of
documents at Exh.8. The documents which are annexed with Exh.8 are
as follows :
Sr.
No.
Documents Exh.
Nos.
1. The death certificate of deceased mother of the plaintiff,
Smt. Shewantabai Gawale.
Exh.9
2. The Ration card of deceased mother of the plaintiff. Exh.10
3. The Electricity bills issued by MSEDL in the name of
deceased mother of the plaintiff.
Exh.11
Colly
4. The Allotment letter in respect of suit flat dated
15.07.2005 issued in the name of deceased mother of the
plaintiff.
Exh.12
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5. The two bank passbooks of Abhyudaya Co-op Bank Ltd.
and one bank passbook issued by Dena Bank in the name
of deceased mother of the plaintiff
Exh.13
Colly
7. The advocate’s notice dated 29.01.2015 addressed to
New Amrapali CHS on behalf of the plaintiff
Exh.14
8. The advocate’s notice dated 25.08.2015 addressed to
New Amrapali CHS and MSEDL making complaint of
change of name on Electricity bill.
Exh.15
Colly
9. The copy of Nomination form given by deceased mother
of the plaintiff to the plaintiff
Exh.16
10. The copy of letter dated 28.08.2015 given by the plaintiff
to the MSEDL
Exh.17
11. The Reply dated 01.09.2015 given by MSEDL to the
plaintiff a/w annexures
Exh.18
12. The Slip of N.C. Complaint No. 2316/2016 dated
01.10.2016 lodged by the plaintiff at Vikhroli Police
Station.
Exh.19
13. The plaintiff’s advocate’s letter dated 19.09.2017
addressed to the defendants
Exh.20
14. The copy of letter dated 26.09.2017 given by Vikhroli
Parksite Police Station to the plaintiff
Exh.21
15. The Reply of defendant Nos. 1 to 3’s advocate dated
23.12.2017
Exh.22
16. The plaintiff’s advocate’s rejoinder dated 29.12.2017 Exh.23
17. The plaintiff’s advocate’s letter dated 29.12.2017
addressed to the defendant Nos. 4 and 5
Exh.24
He also filed additional list of documents vide Exh.25 and Exh. 27
Sr.
No.
Documents Exh.
Nos.
1. The original irrevocable General Power of Attorney dated
07.01.2023 given by the plaintiff to his constituted
Attorney i.e. Deponent herein.
Exh.26
2. The certified true copy of the statement of consumption
of Electricity consumed at the suit premises showing the
name of the plaintiff’s mother on record and in August
2015, the Electricity connection was transferred in the
Exh.28
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name of the defendant No.2
3. The certified true copy of defendant No.2’s advocate’s
letter addressed to the Chairman/Secretary of the said
New Amrapali CHS a/w xerox copies of all annexures
Exh.29
The plaintiffs closed the evidence by filing pursis vide Exh. 30.
As to Point Nos. 1 to 4 and 6 :
7. According to the plaintiff, the plaintiff and the defendant
No.1 are the real sisters and the daughter of Smt. Shewantabai Yeshwant
Gawale. The defendant No.2 is the son of the defendant No. 1 and
defendant No. 3 is daughter-in-law of the defendant No.1 and the wife of
defendant No.2. Mother of the plaintiff, Shewantabai was allotted Flat
No. 112 situated in Building No.I-8 situated at New Amrapali Co-
operative Housing Society Ltd. situated at MMRDA complex, Kanjur Marg
(West), Mumbai- 400 078 as a project affected person. The mother of the
plaintiff Shewantabai died on 28.04.2014 leaving behind her the plaintiff
and the defendant No.1 as a sole legal heirs. The defendant Nos. 4 and 5
are the statutory authorities who has constructed the suit building in the
said suit building Flat No.112 (hereinafter, referred as, “Suit Flat”) was
allotted to the deceased mother of the plaintiff during her life time. The
said suit flat was allotted by MMRDA to the deceased mother of the
plaintiff and accordingly, MMRDA has issued allotment letter in her
name. To support this contention, the plaintiff has filed on record the
Ration Card of her deceased mother, Electricity Bill, copy of Allotment
Letter issued by MMRDA and the copy of Bank Passbook in the name of
deceased mother of the plaintiff and the death certificate of deceased
mother of the plaintiff. [Exh. 10, Exh.11 (Colly), Exh.12 and Exh.13
(Colly)].
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8. It is contended by the plaintiff that after the demise of her
mother, the defendant Nos. 1 to 3 alongwith Smt. Daya Shinde and her
husband Sahebrao Shinde illegally and unlawfully entered into the suit
flat and continued to occupy it with dishonest intention and ulterior
motive to grab the suit flat. Initially, the defendant No.2 by fabricating
the false and bogus documents showing that he was made nominee by
the deceased mother of the plaintiff got the electricity connection
transferred in his name and they approached the Amrapali CHS through
advocate to transfer the suit flat in his name. Therefore, the plaintiff
issued notice dated 25.08.2015 to Electricity company intimating them
that suit flat was exclusively belonged to the deceased mother of the
plaintiff and after her demise, the plaintiff and the defendant No.1 only
are her legal representatives. In view of the documents filed by the
plaintiff with the said electricity company, she transferred the connection
in the name of deceased mother of the plaintiff. The plaintiff has relied
on the office copy of notice dated 25.08.2015 vide Exh.15 (colly).
9. The plaintiff further contended that she learnt from the
office bearers of the Amrapali CHS that the defendant No.2 through his
advocate’s letter dated 22.07.2015 had informed to the Chairman and
Secretary of the society to transfer the suit flat in the name of the
defendant No.2 alongwith certain documents like Nomination form and
Notarized declaration of defendant No.2, the copy of Indemnity bond,
Ration card of deceased mother of the plaintiff and Electricity bill, etc.
The plaintiff obtained copy of said letter and the documents. However,
after perusal of the documents, it revealed that on the original
Nomination form, there is no signature of the witnesses and no stamp of
the society. When the plaintiff informed the society about the fraudulent
act done by the defendant No.2 vide her letter dated 29.01.2015, the
office bearers of the society assured her that they will not grant NOC for
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transfer of the suit flat in the name of third party without obtaining prior
written permission of the plaintiff. The plaintiff further wrote a letter
dated 28.08.2015 to Electricity company and called from them about the
documents submitted by the defendant No.2. The plaintiff has filed on
record the copy of letter dated 28.08.2015 given to Executive Engineer of
MSEDL company and the reply filed by them dated 01.09.2015.
According to the plaintiff, when the electricity connection reinstated in
the name of deceased mother of the plaintiff, the defendant No.2 picked
up quarrel with the plaintiff. Hence, the plaintiff lodged the Complaint
No. 2316/2016 dated 01.10.2016 with Vikhroli Park Site Police Station.
She has filed the copy of the said complaint vide Exh.19. Thereafter, the
plaintiff through her notice dated 19.07.2017, issued to the defendant
Nos. 1 to 3 called upon them to vacate the suit flat and to transfer 50%
share of the plaintiff in the said flat. The defendant Nos. 1 to 3 through
their advocate sent reply dated 21.12.2017 and set up their false defence
to the suit flat. The plaintiff filed rejoinder dated 29.12.2017 to the said
reply. In support of this, the plaintiff has produced office copy of notice
dated 19.09.2017, letter dated 26.09.2017 and the reply dated
23.12.2017 and the copy of rejoinder given by the plaintiff dated
29.12.2017 vide Exh. 19, Exh.20, Exh.22 and Exh.23 respectively.
10. The plaintiff further contended that thereafter, she through
her letter dated 22.06.2018, requested the defendant Nos. 4 and 5 to
take action against the defendant Nos. 1 to 3 and to transfer the suit flat
in the name of the plaintiff and the defendant No.1. However, no action
was taken by MMRDA. The plaintiff has produced on record the copy of
letter dated 22.06.2018 given to the defendant Nos. 4 and 5 (Sr No.20 of
list of documents filed alongwith the plaint). However, prior to filing of
the suit, Mr. Sahebrao Shinde and Daya Shinde vacated the suit flat,
therefore, they have not joined as defendant in the suit.
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11. The plaintiff has filed the documents in support of her
contention. The defendants though served with the writ of summons,
failed to appear before the Court. Therefore, the evidence, oral and
documentary of the plaintiff remained unchallenged. The evidence filed
by the plaintiff shows that the suit flat was allotted to the deceased
mother of the plaintiff and after her death, the plaintiff and the
defendant No.1 are only legal heirs of the deceased mother. Under such
circumstances, the plaintiff is entitled for 50% interest in the suit flat and
also entitled for the other reliefs as claimed. Hence, I answered point
Nos. 1 to 4 and 6 accordingly.
As to point No. 5 :
12. Being the legal heir of deceased, Shewantabai Gawale, the
plaintiff shown that she is entitled for 50% share in the suit flat.
However, the plaintiff failed to show how she is entitled for
compensation. Hence, I answered point No.5 in the negative and to
answer point No. 7, I pass the following order :
ORDER
1. The S.C. Suit No. 2237 of 2019 is hereby partly decreed with costs.
2. The decree be drawn up accordingly.
3. The Suit is disposed of accordingly.
(Dictated and pronounced in Open Court)
(A. V. KASTURE)
Judge,
City Civil Court,
Date: 07.05.2025 Gr. Bombay.
Dictated on : 07.05.2025
Transcribed on : 12.06.2025
Checked on : 16.06.2025
Signed on : 16.06.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18.06.2025 At 13.35 P.M. Mrs. Poonam Y. Pawar
UPLOAD DATE AND TIME Stenographer, Grade-I
Name of the Judge (With Court Room
Number)
HHJ SMT. A. V. KASTURE
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
07.05.2025
Judgment/Order signed by P.O. on 16.06.2025
Judgment/Order uploaded on 18.06.2025
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