Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3341-19 in SC. Suit no. 2129-19
1 Date : 17.09.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3341 OF 2019
IN
S.C. SUIT NO. 2129 OF 2019
(CNR NO.MHCC010091432019)
Shri. Amirzada Shahjada Rahmaullah Khan .. Plaintiff
Versus
Shri Sayed Sarwar Sayed Mustafa .. Defendant
Appearances :
None Present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 17.09.2019
ORDER
1. The plaintiff has filed instant Notice of Motion praying for
following reliefs:
a) That pending the hearing and final disposal of the
Suit, the Defendants, their servants, agents, and / or
any persons claiming through them be restrained by
an Order and Injunction of this Hon’ble Court from
interfering into peaceful use, occupation and
possession of the Plaintiffs in the suit premises i.e.
Gala No. D 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 and / or creating any third party right, title
and/or interest in respect thereof;
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2 Date : 17.09.2019
b) That this Hon’ble Court be pleased to appoint some fit
and proper possession as Court Commissioner of this
Hon’ble Court, with direction to visit the suit premises
i.e. Gala No. D 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 and submits its report;
c) That interim and adinterim reliefs in terms of prayer
clause (a) & (b) above, be granted;
2. 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.
3. 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 No.
1 died on 27.02.2019 and father of plaintiff no. 2 died on
17.05.2010.
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3 Date : 17.09.2019
4. 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.
5. 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).
6. The plaintiff thereafter given the said Gala on tenancy basis
to one Shaikh Badre Alam and Devdas Tukaram Rane by executing
Registered Tenancy Agreement.
7. 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
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
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4 Date : 17.09.2019
dated 01.01.2019 and No Objection. The plaintiff and defendant
accordingly executed Agreement for cancellation.
8. 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.
9. The defendants resisted the suit as well as Notice of Motion
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 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
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5 Date : 17.09.2019
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.
Hence, the defendants prayed for rejection of the Notice of Motion.
10. Heard both the sides at length. Perused Notice of Motion as
well as Written Statement. It is not in dispute that the father of
plaintiffs were the original landlord of Gala Nos. A, B, C and D and
the defendants were the tenants. It is contention of the plaintiffs
that the defendant no. 1 on 25.12.2018 surrendered the Suit Gala
to the plaintiffs. Accordingly, the Affidavit was came to be
executed between them. It is further contended by the plaintiffs
that they have given suit Gala on Leave and License basis to
Shaikh Badre Alam and Devdas Tukaram Rane by executing
Registered Leave and License.
11. The defendants claiming to be in possession of the suit
premises by virtue of alleged Agreement of conversion of tenancy
right into ownership and No Objection dated 01.01.2019. The
defendants in order to show their possession over the suit property
also filed unregistered tenancy Agreement with Shaikh Badre
Alam and Devdas Tukaram Rane.
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6 Date : 17.09.2019
12. Thus, on perusal of rival pleadings of the party, it appears to
me that both are claiming their rights and possession over the suit
property. The Affidavit dated 25.12.2018, by which the defendant
no. 1 surrendered the Tenancy of Suit Gala to the plaintiffs and the
alleged Agreement of conversion of tenancy rights to ownership
right, Agreement for cancellation of Agreement dated 01.01.2019
and Gift Deed all are unregistered documents. Admittedly, both
the parties are claiming possession on the suit premises on the
basis of tenants included in the suit Gala. At present, the legality
of documents can not be ascertained. It is difficult to ascertain the
possession of the parties. Hence in such a situation, in my view,
the Court Receiver can be appointed to protect the property till the
decision of the suit and the issue o possession and rights of the
parties needs to be adjudicated in the Trial. Thus, I proceed to
pass the following order.
ORDER
1. The Court Receiver is hereby appointed to take the
possession of the suit premises being Gala No. D
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
alongwith the tenants and to recover the rent from the
present tenant namely Shaikh Badre Alam and Devdas
Tukaram Rane and to deposit the same with this Court
till the decision of the suit.
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7 Date : 17.09.2019
2. On the expiration of the leave and license agreement of
tenants, the Court Receiver to receive the possession
from the tenant and the decision of further tenancy shall
be taken with the permission of the Court.
3. The copy of aforesaid order be forwarded to the Court
Receiver so that intimation of the same shall be given by
the Court Receiver to the tenant Shaikh Badre Alam and
Devdas Tukaram Rane.
4. The parties to bear their own cost of Notice of Motion.
5. In terms of the above, Notice of Motion No. 3341 of 2019
is hereby disposed off.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 17.09.2019 Gr. Bombay.
Dictated on : 17.09.2019
Typed on : 17.09.2019
Draft Submitted on : 17.09.2019
Checked on : 18.09.2019
Signed on : 18.09.2019
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NM 3341-19 in SC. Suit no. 2129-19
8 Date : 17.09.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
/10/2019 at 3.00 p.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
09/10/2019
JUDGMENT/ORDER signed by P.O.
on
/10/2019
JUDGMENT/ORDER uploaded on /10/2019
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