Final Order 2

Order Details: Copy of Judgment
Pdf Text: Judgment ..1..
S.C. Suit No.2293 of 2019
MHCC010081772019
Exh.34
Lodged on : 05.08.2019
Registered on : 16.08.2019
Decided on : 30.03.2024
Duration : 04Y 07M 25D
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
SUIT NO.2293 OF 2019
Nilkant Dattaram Pawar
Age: 58 years,
Residing at R.C. Compound,
Chawl no.11, Sewree,
Bombay 400 015. .. Plaintiff
Versus
1. Mrs. Darshana wd/o Krishna Pawar.
Age: 45 years,
2. Vinayak Krishna Pawar.
3. Sarvesh Krishna Pawar.
All defendants being adults
residing at 6/19 R.G. Compound
T.J. Road, Sewree,
Bombay 400 015. .. Defendants
Appearance
Advocate Mr. Suresh Gole for the Plaintiff.
Advocate Mr. Vikas V. Khanolkar for the defendants.
CORAM : HIS HONOUR JUDGE
Anand P. Kanade
(COURT No.: 2)
DATED : 30th March, 2024.
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S.C. Suit No.2293 of 2019
J U D G M E N T
The plaintiff has filed the present suit praying for a permanent
order of injunction restraining the defendants from physically
preventing him and his family members from occupying the suit house
and enjoyment of the house jointly with the defendants. The Room
No.19, Chawl No.19, Ravji Shojpal Chawl, R.S. Compound, T.J. Road,
Sewree, Mumbai, is the subject matter of the suit (hereinafter referred
as suit property). The plaintiff and Krishna i.e., the husband of
defendant no.1 are real brothers whereas the defendant no.2 and 3 are
the sons of defendant no.1. The suit property is consisting of residential
room, which is specifically described in para 1 of the plaint. One
Sakharam Daji Pawar acquired suit room on tenancy basis way back
prior to the year 1930. Later on in the year 1930, original tenant
Sakharam Daji Pawar inducted Dattaram Pawar i.e., father of plaintiff in
suit propert. However the rent receipt was continued in the name of
original tenant Sakharam Daji Pawar. Dattaram Pawar continued to pay
rent to the landlord though receipt was issued in the name of original
tenant Sakharam Daji Pawar. Plaintiff’s father Sakharam Daji Pawar was
employed in a mill which was closed in the year 1982. Hence Dattaram
Pawar became jobless and shifted to his native place with his family.
Thereafter, the rent receipt of the suit property transferred in the name
of plaintiff’s father. After the death of plaintiff’s father rent receipt came
to be transferred in the name of plaintiff’s mother i.e., Chandrabhaga.
According to the plaintiff during the life time of mother the rent receipt
was transferred in the name of Krishna on the condition that the suit
property shall belong to all his children.
2. It is the specific case of plaintiff that Dattaram Pawar, his wife
Chandrabhaga and his four sons including plaintiff and Krishna were in
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S.C. Suit No.2293 of 2019
joint possession of the suit property. According to plaintiff his two
brothers procured their new residence. Thereafter plaintiff and Krishna
Pawar continued to reside in the suit property. Plaintiff father Dattaram
died on 19.08.2001 and mother Chandrabhaga died on 18.07.2007.
After demise of the parents plaintiff and his brother Krishna continued
to use the suit property as their residence jointly.
3. It is the case of plaintiff that in June 2008 his brother, Krishna
illegally dispossessed the plaintiff from the suit property. Then Krishna
filed the SC Suit No. 1828 of 2008 for perpetual injunction restraining
the present plaintiff and his two brothers from entering the suit
property. According to plaintiff in order to oust the plaintiff, Krishna
filed that mischievous suit. The plaintiff contested the said suit and filed
his written statement. That suit was partly decreed by an order dated
10.12.2010 and suit against defendant no.1 and 2 i.e., Sukhadev Pawar
and Vitthal Pawar i.e., brothers of plaintiff and late Krishna was
partially decreed and the suit against the present plaintiff stands
dismissed. Thereafter Krishna Pawar preferred an appeal before the
Hon’ble Bombay High Court being first Appeal No. 224 of 2011. On
04.08.2011 the Hon’ble Bombay High Court passed order restraining
the present plaintiff from entering the suit premises without following
due process of law and it is also ordered that it will be open to the
present plaintiff to adopt appropriate remedy notwithstanding the
pendancy of the appeal.
4. According to the plaintiff his brother Krishna died on 26.12.2012
leaving defendants as his heirs. The defendants did not implead them as
a party in the appeal and that appeal came to be dismissed by order
dated 22.11.2017. According to plaintiff after order dated 04.08.2011
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S.C. Suit No.2293 of 2019
passed by the Hon’ble Bombay High Court the plaintiff attempted to
resume joint possession in the suit property with Krishna. At that time
Krishna and defendants objected the plaintiff from joint use, enjoyment
and possession of suit property. According to plaintiff in the first week
of July 2019 plaintiff alongwith his family members went to reside in
the suit property jointly with the defendants but the defendants
physically obstructed the plaintiff to enter in the suit property.
According to plaintiff in the Judgement of suit no. 1828 of 2008 it has
been held that plaintiff was forcibly dispossessed from the suit property
by Krishna and plaintiff has right to remain in possession of suit
property. As the defendants are restraining the plaintiff from entering in
the suit property. Hence plaintiff is constrained to file the present suit.
5. The defendants appeared and filed their written statement at
Exh.3. They have denied in toto all the material allegations in the
plaint. According to defendants they are lawful tenants of the suit
property and are in exclusive possession of suit property since prior to
1990. The plaintiff has already left the suit property prior to year 1990
and leaving separately at his residence. Plaintiff has not taken any legal
steps to seek redressal against his alleged forcible dispossession in 12
years. Thus, the present suit is not filed within limitation. According to
defendants the plaintiff has not filed any legal proceeding under
Specific Relief Act, against the suit filed by Krishna. As per Order dated
04.08.2011 passed in Appeal no.224 of 2011 plaintiff was directed by
the Hon’ble Bombay High Court to adopt appropriate proceeding but
instead of challenging the suit filed by late Krishna, plaintiff only
defended the said suit. Plaintiff has not filed any suit after the said suit
was dismissed and after he was instructed to adopt legal proceeding as
per order passed by the Hon’ble High Court. According to defendants
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S.C. Suit No.2293 of 2019
the present suit is not within limitation. Defendants have specifically
denied that the plaintiff was in joint possession of the suit property and
he has right to remain in possession of suit property. On the aforesaid
grounds defendants prayed to dismiss the suit.
6. On the rival pleading of the parties issues are framed at Exh.4
and I would like to reproduce those issues herein under, for the reasons
given thereunder :-
Sr.
No.
ISSUES FINDINGS.
1. Does the plaintiff prove that he is in joint
possession of suit premises as claimed ? In the affirmative.
2. Does further prove that obstructions in his
lawful possession of suit premises ? In the affirmative.
3. Is plaintiff entitled to get decree of
injunction as prayed ? In the affirmative.
4 What order ? As per final order.
REASONS :-
7. This is a dispute amongst parties at the instance of right in the
suit premises, which is admittedly tenanted premises. Plaintiff claims to
be joint tenant and possession of the suit property and prayed for
injunction against the defendants who are the heirs of his deceased
brother Krishna. In order to establish averments of suit claim, plaintiff
Nilkant lead his evidence on affidavit at Exh.9 and also examine PW 2
Prakash Vasant Shivalkar, resident of room no.18 at Exh.16 as his
witness. On the other hand defendant no.1 examined herself at Exh.18.
Defendants have examined PW 2 Hemant Yadav, brother of defendant
no.1 at Exh.29. Defendant no.3 has examined himself at Exh.30.
Defendants have also examined DW 4 Sadanand Zagade, who is
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S.C. Suit No.2293 of 2019
residing in room no.7, Chawl no.3, as their witness at Exh. 31. Besides
oral evidence plaintiff relied on certain documents, which are produced
on record alongwith list Exh.6. On the other hand, defendants produced
documents with list Exh.19. On the basis of said oral and documentary
evidence, rights of the parties are to be decided. In the present suit it is
not disputed that the suit property is tenanted property. It is also not
disputed that the rent receipt of suit property stands in the name of
deceased Krishna. It is also not disputed that the deceased Krishna filed
suit SC suit no.1828 of 2008 against the present plaintiff and his two
brothers. That suit was partly decreed. That suit was for the same
subject matter of present suit. It is also not disputed that deceased
Krishna Pawar preferred an appeal before the Hon’ble Bombay High
Court being First Appeal No. 224 of 2011. It is also not disputed that
Krishna Pawar died on 26.12.2012 leaving the defendants as his heirs.
Defendants did not implead them as a party in that appeal and
continued that appeal. Hence that appeal was dismissed on 22.11.2017.
AS TO ISSUE NOS. 1 TO 3
8. These issues are interlinked with each other, for the sake of
brevity, they are discussed together. It is the case of plaintiff that
during the life time of his parents he was residing in the suit property
jointly with the parents and with his four brothers. According to
plaintiff till June 2008 he was residing in the suit property jointly with
the deceased Krishna and plaintiff was illegally dispossessed from the
suit property. As against this it is the case of defendants that since year
1990 onwards Krishna and defendants are in exclusive possession of
suit premises with which plaintiff has no concerned. According to
defendants plaintiff has shifted elsewhere in the year 1990 itself.
Therefore, he has no right to enter in suit property. As a matter of fact,
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S.C. Suit No.2293 of 2019
this is not Rent Court to decide the question of tenancy, for which Small
Causes Court has exclusive jurisdiction to deal with the subject. The
aspect raised in the present suit can be independently looked in relation
to the rights of the party to limited extent. Thus, this Court neither can
decide nor declare that the defendants are exclusive tenants or plaintiff
is joint tenant of the suit property on the provision of Rent Act.
9. It is the specific case of plaintiff that till June 2008 he was in joint
possession of suit property alongwith defendants and in June 2008
Krishna illegally dispossessed him from suit property. As against this, it
is the defence of the defendants that plaintiff is not in joint possession
of suit property and he left the suit property prior to 1990. Hence he
has no right to ask for the right to remain in possession of suit property.
Plaintiff has pleaded and testified that he was in possession of suit
property till June 2008. He further pleaded and testified that in June
2008 Krishna Pawar illegally dispossessed him from suit property.
Plaintiff has also pleaded and testified that after order dated 04.08.2011
in CA No. 452 of 2011 in FA No. 224 of 2011, plaintiff attempted to
resume joint possession of suit property. He has also pleaded and
testified that about lodging complaint on 03.01.2018 with RAK Marg
Police Station for police help. He further pleaded and testified that in
the first week of July 2019 plaintiff alongwith his family members again
went to use, enjoy joint possession of suit property but defendants
obstructed their entry in the suit property. In the cross examination
plaintiff denied that he was not residing in the suit property. He has also
denied that in the year 1995 his mother drove him out of house. In the
cross examination plaintiff also denied that he did not make any
attempt to enter in suit premises. He has also denied that no incident
had taken place between him and defendants in the year 2018. Plaintiff
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S.C. Suit No.2293 of 2019
has produced documents alongwith Exh.6/1 to show his possession. He
has produced voters extract of the yet 1995. Wherein he was shown as
resident of suit premises. It is to be noted that in the said voters extract
the name of plaintiff was entered on the address of suit property. Thus,
this extract shows that even after the year 1990 i.e., particularly in the
year 1995 name of plaintiff was shown on the address of suit property.
10. In the oral evidence of PW 2 Prakash Vasant Shivalkar has also
testified that plaintiff was residing in the suit property alongwith his
parents and after the death of parents plaintiff continue to reside with
his family members in the suit property. He has also testified that
plaintiff made several attempt to come and reside jointly with the
defendants but defendants physically prevented the plaintiff from
entering in the suit property. This witness has denied that plaintiff
alongwith his family was not residing in the suit property. In the cross
examination defendant no.1 admitted that name of plaintiff was
appearing in the ration card alongwith the defendants. She denied that
she and her husband evicted the plaintiff from suit property.
11. The plaintiff has produced on record copy of Judgment in SC Suit
No. 1828 of 2008 at Exh.7. The subject matter of that suit was the same
subject matter of present suit. That suit was filed by the husband of
defendant no.1 for perceptual injunction restraining the defendants
including present plaintiff from entering in the suit property. That suit
was partly decreed by order dated 10.12.2010 and that suit was
dismissed against defendant no.3 i.e., present plaintiff. It has also
brought on record that the deceased Krishna preferred F.A.No. 224 of
2011 against the decreed passed in Suit No. 1828 of 2008. It has also
brought on record that Krishna Pawar died on 26.12.2012. Thereafter
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S.C. Suit No.2293 of 2019
the appeal preferred by the Krishna came to be dismissed by order
dated 22.11.2017. In the oral evidence of defendant no.1 testified that
due to the financial restrain she was not inclined to proceed with the
legal proceeding pending before the Hon’ble High Court. It reflect that
defendants have not impleaded themselves in that appeal as a heirs of
deceased Krishna and contested that appeal. Considering that the
defendants are the legal heirs of deceased Krishna and subject matter in
the suit no. 1828 of 2008 is the same subject matter. I am of the view
that the decree passed in suit no. 1828 of 2008 is binding on the
defendants.
12. After going through the judgment Exh.7 it reveals that in para
no.18 Court held that there is no reason to discard the case of
defendant no.3 i.e., present plaintiff that soon before institution of suit,
he has been forcibly evicted. In para no. 19 it has been held that the
defendant no.3 i.e., present plaintiff has only proved that he has right to
remain in possession of suit property. In para no. 21 it has been held
that it has come on record that defendant no.3 i.e., present plaintiff was
very much living in suit premises until recently i.e., up to the date of
filing of suit. Temporary phase of his forcible dispossession cannot be
capitalised to prevent him from entering into suit premises, where he
was very much residing. The Court by observing the above reasons
dismissed the suit against defendant no.3 i.e., present plaintiff. The
finding in the said judgment are binding on the defendants in the
present suit.
13. In the oral evidence defendant no.1 has testified that plaintiff left
the suit premises in the year 1995 after his marriage. In the oral
evidence of DW 3 has also testified that plaintiff is residing at the
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S.C. Suit No.2293 of 2019
address specifically mentioned in the cause title of the suit since 1995.
The defendants have testified that in the year 1995 mother of plaintiff
drove the plaintiff out of the house and since then plaintiff is not in
possession of suit property. It is no where case of Krishna that in the
year 1995. Plaintiff’s mother drove the plaintiff out of suit property and
since then plaintiff was not in possession of suit property. Hence that
contention of defendants is not at all acceptable.
14. In the oral evidence DW 4 has also testified that plaintiff was
residing in the suit property prior to 1995 and plaintiff mother removed
him from the suit property in the year 1995. He further testified that
plaintiff alongwith family never ever resided in the suit property. In the
oral evidence DW 3 has testified that in between 05.05.2008 to
05.06.2008 he and his family members had been to their native place at
that time plaintiff tried to broke open the lock of the suit premises and
enter in the suit premises. After scrutinizing oral and documentary
evidence on record particularly the observations in the judgment in suit
no.1828 of 2008 it reveals that till June 2008 plaintiff was in joint
possession of suit property and plaintiff has right to remain in
possession of suit property.
15. The learned Counsel for the defendants submitted that in the
cross examination plaintiff Nilkant has admitted that the evidence
affidavit is prepared by his advocate on his own. He submitted that the
admission of plaintiff shows that the plaintiff has not complied the
provision of order XVIII Rule 14 of C.P.C. and due to it it is necessary to
discard the evidence affidavit of plaintiff at Exh.5. The defendant has
relied on a case of Smt. Savithramma Vs. Cecil Naronha and another,
reported in 1988 AIR 1987, it has been held by the Hon’ble Apex Court
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S.C. Suit No.2293 of 2019
that the party stating facts must disclose as to what facts are true to his
personal knowledge, information or belief. If the statement of fact is
based on information the source of information must be disclosed in the
affidavit. An affidavit which does not comply with the provisions of
order XI of the Supreme Court Rules, has no probative value and it is
liable to be rejected.
The defendants have also relied on a case of Banganga Co-op.
Hsg. Soc. Ltd vs Mrs. Vasanti Gajanan Nerurkar reported in AIR 2015
(NOC) 1132 (BOM.),.
After going through the verification it reveals that plaintiff has
affirmed that whatever stated in the paragraphs of affidavit of evidence
is true to his own knowledge and belief. It has come on record that the
plaintiff studied upto second standard and he cannot read and write
English language. From the cross examination of the plaintiff it reveals
that he is labourer. Considering the education of the plaintiff I am of the
view that the admission given by the plaintiff that his evidence affidavit
is prepared by his advocate on his own cannot be accepted to discard
his examination in chief affidavit vide Exh.5.
16. It is the case of defendants that suit is not within limitation. On
perusal of plaint it is clear that all though plaintiff has claimed relief in
the form of injunction but in fact, he has claimed relief of joint
possession of suit property. Defendants have pleaded and testified that
plaintiff has not taken any legal steps to seek redressal against his
alleged forcible dispossession for 12 years. They also pleaded and
testified that the plaintiff has not filed any legal proceeding under
Specific Relief Act, against the suit filed by Krishna Pawar. They also
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S.C. Suit No.2293 of 2019
pleaded and testified that as per order dated 04.08.2011 passed in
Appeal No. 224 of 2011 plaintiff was directed by the Hon’ble High
Court to adopt appropriate proceeding. But instead of challenging the
suit filed by Krishna Pawar plaintiff only defended the said suit. They
also pleaded and testified that plaintiff has not filed any suit. After the
said suit was dismissed against him or after he was instructed to adopt
legal proceeding as per order passed by the Hon’ble High Court. It is
pertinent to note that plaintiff has filed this suit on the basis of previous
possession of suit premises claiming joint possession of suit property. In
such case Article 64 of the Limitation Act is invoked and period of
limitation is 12 years from the date of dispossession. I have already
pointed out that it has come on record that Krishna Pawar illegally
dispossessed the plaintiff from suit property in June 2008 and plaintiff
has filed the present suit in the year 2019 claiming joint enjoyment and
use of suit property. Considering that aspect I am of the view that the
suit is well within limitation.
17. After scrutinizing an oral and documentary evidence on record it
reveals that till July 2008 plaintiff was in joint possession of the suit
property. Plaintiff has pleaded and testified that he attempted to resume
joint possession of suit property but the defendants objected the
plaintiff from joint use, enjoyment and possession of suit property. The
defendants are claiming exclusive possession over the suit property. It is
nothing but obstructions to the plaintiff joint possession over the suit
property. In the suit no.1828 of 2008 it has been held that the plaintiff
has proved that he has right to remain in possession of suit property as
he was in joint possession of suit property. Considering those aspects, I
am of the view that plaintiff has proved the obstructions to his lawful
possession over the suit property. For the aforesaid reasons I am of the
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S.C. Suit No.2293 of 2019
view that plaintiff is entitled to get relief of perpetual injunction as
prayed. For the forgoing reasons, I record my affirmative findings to
issue nos.1 to 3 and I am inclined to decide issue no.4 by the following
order.
ORDER
1. Suit No.2293 of 2019 is decreed with costs.
2. Defendants nos.1 to 3 are hereby perpetually restrained from
obstructing plaintiffs entry in the suit property and his use enjoyment
and joint possession of suit property without due process of law.
3. Decree be drawn up accordingly.
(Anand P. Kanade)
Judge
City Civil Court, Gr.Mumbai
Date : 30.03.2024
Typed on : 30.03.2024
HHJ signed on : 04.04.2024
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S.C. Suit No.2293 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 04.04.2024, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. Anand P. Kanade
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
30.03.2024
JUDGMENT/ORDER signed by P.O.
on
04.04.2024
JUDGMENT/ORDER uploaded on 04.04.2024
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