Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT
GR.BOMBAY
NOTICE OF MOTION NO.2849 OF 2019
CNR NO.MHCCO1-007874-2019
IN
S.C. SUIT NO.1376 OF 2018
Mr.Kumar Mahadeo Kamble ..Plaintif
V/s
1. Smt.Padmini Prakash
Kamble and others ..Defendants
Ld. advocate Mr.Attar for the plaintif
Ld. advocate Mr.Pathak for defendant no.1
Ld. advocate Deepali Kavi for defendant no.2
Ld. advocate Chitnis for defendant no.3
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 07/02/2020
ORAL ORDER
1. This notice of motion is tendered by the
plaintif for withdrawal of the amount
deposited in this Court by defendant no.3 in
pursuance of the order passed by the Hon’ble
High Court in Arbitration Proceedings no.1117
of 2018 dated 29/11/2018.
2. Heard. Perused the record.
3. Ld. Counsel for the plaintif submitted that in
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the Arbitration proceedings defendant no.3
was directed to deposit transit rent and other
charges in respect of the suit premises before
this Court. The plaintif contended that he has
filed the suit on the ground of adverse
possession and continuous possession of the
suit premises since last 40 years with the
consent of defendant no.1 as a exchange of
premises. By virtue of the resolution and
agreement with defendant no.3, it was
decided to pay the rent till the possession has
to be handed over by defendant no.3 and
accordingly defendant no.3 is paying rent to
the other occupants and plaintif was in
possession of the suit premises. He would
submit that as per the direction of the Hon’ble
High Court, plaintif has handed over the
vacant possession of the suit premises to
defendant no.3 for the purpose of
redevelopment and thereafter has taken
premises on leave and license and paying
Rs.25,000/- monthly rent. The defendant no.3
has deposited Rs.1.70 lacs towards the
charges of rent in respect of the suit premises
and further continued to deposit in this Court
and therefore plaintif prayed for permission
to withdraw the amount to pay the amount/
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license fees in respect of his current
accommodation.
4. Defendant no.1 has filed detailed reply. It is
the contention of defendant no.1 that plaintif
has suppressed the material facts. She would
submit that one Kundalik Baburao Manjrekar
was the original owner and occupant of the
suit premises. The deceased husband of
defendant no.1 has purchased the suit
premises vide agreement for sale dated
31/08/1978 and accordingly his name was
mutated in the share certificate. The
deceased husband of defendant no.1
nominated her as his nominee. After
necessary procedure, defendant no.2 has
transferred share certificate in the name of
defendant no.1 after the demise of her
husband. The building has gone for
redevelopment. The defendant no.1 has
given the consent letter. But at the request of
father-in-law, defendant no.1 shifted to the
premises at Mulund and plaintif used to
occupy the suit premises. The plaintif has no
right and title over the suit premises.
5. At this juncture, the plaintif is seeking
ownership on the basis of adverse possession.
The suit is for declaration of the ownership of
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the plaintif by adverse possession. The stand
of the plaintif is that he occupied the suit
premises by way of consent of defendant no.1
as well as her deceased husband. At this
juncture, the claim of ownership of the
plaintif is by adverse possession. The
question of the entitlement is directly related
to the proprietary rights of the parties. It
would not be proper to release the amount
deposited by defendant no.3 in favour of
plaintif when there is serious dispute about
title. No doubt possessory right was not
disputed but the entitlement based on the
proprietary right of the parties. Thus, notice
of motion needs no consideration. Hence, it is
expedient to pass following order:-
ORDER
1. N.M no.2849/2019 stands rejected.
2. Costs in the cause.
3. N/M No.2849/19 is disposed of
accordingly.
07/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on: 07/02/2020
Transcribed on: 17/02/2020
Signed on: 20/02/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
20/02/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
07/02/2020
Judgment and order signed by P.O. 20/02/2020
Judgment/order uploaded on 20/02/2020
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