Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 844/2020 in S.C.Suit No. 2690/2019. 1 Order.
MHCC010024202020
Presented on : 24-02-2020
Registered on : 24-02-2020
Decided on : 18-02-2023
Duration : 2 years, 11 months, 23 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 844 OF 2020
IN
S. C. SUIT NO. 2690 OF 2019
Kumari Jayshree Alji Rabhadiya )...Plaintiff
Versus
Smt. Ramila Alji Rabhadiya )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 18th FEBRUARY, 2023.
Miss Sandhya Mailagir, Advocate for the plaintiff.
None for the defendant.
ORDER
1. The plaintiff has filed the notice of motion for the relief of
temporary injunction restraining the defendant, her relatives/her legal
heirs, agent or any person acting for and/or under her behalf from
possessing over the suit premises by creating any right, title and interest
in respect of the suit premises. Perused notice of motion and the suit
proceeding. Heard learned counsel Sandhya Mailagir for the plaintiff.
-- 1 of 6 --
N/m No. 844/2020 in S.C.Suit No. 2690/2019. 2 Order.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is unmarried daughter of the defendant. The
plaintiff had been residing with the defendant along with other family
members in the suit premises. The defendant is the mother of the
plaintiff and widow of Shri Alaji Rabhadiya who died on 24/03/2005
leaving behind the defendant, two sons namely Ashok, Kailash and a
daughter i.e. the plaintiff. Shri Alaji Rabhadiya was employed in Central
Railway as A.C. Coach attendant at D.C.T.I.B.S in the commercial
department. After his demise, the defendant was paid with an amount
of Rs. 5,00,000/ as by way of gratuity, bonus, provident fund and other
benefits by the Central Railways. The defendant is also drawing pension
of Rs.7,000/ per month which has increased to Rs.10,000/–. Thus, the
defendant has been financially well provisioned. As the defendant was
financially well provisioned, she has given no objection to the central
railways to appoint her son Ashok in place of her deceased husband on
compassionate ground. Shri Ashok has been appointed in place of
deceased Alji Rabhadiya. Since then, son Ashok had been looking after
the entire family.
3. Shri Ashok had been the owner and otherwise sufficiently
entitled to use, occupy and enjoyment of one room being Zopadi
No.190, admeasuring about 269 square feet constructed at Zopadpatti
Vasahat, Village Mulund, Siddharth Nagar, Dr. Rabhadiya Prasad Road,
Mulund [West], Mumbai – 400080 on City Survey No.755 [hereinafter
referred to as "the said room"]. The Society through the developer has
taken up the development of the entire plot of City Survey No.755
wherein the said room had been situated by demolishing the structure
standing thereon including the said room and constructing the buildings
and agreed to allot the room to the persons holding the said
-- 2 of 6 --
N/m No. 844/2020 in S.C.Suit No. 2690/2019. 3 Order.
room/Zopadi at the said plot in lieu of the said room/Zopadi as an
alternate accommodation free of cost [hereinafter referred to as "the
suit premises"].
4. Shri Ashok being the elder son has been successfully
performing his duty towards members of the entire family and
accordingly, he wanted to settle his unmarried younger sister, the
plaintiff herein. Accordingly, Shri Ashok discussed his Will before the
family members that after his death, the said room/the suit premises be
given to the plaintiff as an owner and decided to make the Will in
writing, but he had apprehension that after his death, family members
will create a dispute and his wish or Will not fulfill. Therefore, he gifted
the said room/the suit premises to his unmarried sister, the plaintiff
herein vide the Gift deed dated 03/12/2015 duly notarized before the
Notary Government of India vide serial No. 5943 and the Power Of
Attorney so that she should not be shelterless in future due to any
untoward incidents and can lead her life safely. Thus, the plaintiff is
entitled and acquired the right in the suit premises to be offered as the
alternate accommodation in the new construction in lieu of the said
room by virtue of the said Gift Deed and Development Agreement. Shri
Ashok also died on 06/02/2019. Thus, the plaintiff has acquired the
exclusive right and otherwise sufficiently entitled to possess, use,
occupy and enjoy the said room/the suit premises and all other rights
and entitlement accrued thereto.
5. Having known this fact, the defendant has started to make
imaginary claim over the said room/the suit premises after the demise
of Shri Ashok. On 30/08/2019, picking up quarrels with the plaintiff
and threatening to claim her right over the said room/the suit premises
-- 3 of 6 --
N/m No. 844/2020 in S.C.Suit No. 2690/2019. 4 Order.
and take possession of the suit premises after construction, the
defendant had thrown the plaintiff out from the defendant's house
because at that time, the plaintiff was residing along with the defendant
at the address of the defendant mentioned in the title clause. Due to
dispossession, the plaintiff has become shelterless and she requested her
brother Shri Kailash to allow her till she gets possession of the suit
premises. The plaintiff is residing at the address mentioned in the title
clause at the mercy of Shri Kailash. The plaintiff is the owner of the said
room and has the legal right over the suit premises in the newly
constructed building and the defendant has no right to disturb
legitimate right of the plaintiff over the suit premises. However, the
plaintiff has a grave apprehension that the defendant may disturb the
rights of the plaintiff over the suit premises. Under these circumstances,
the plaintiff has sought reliefs prayed in the notice of motion.
REASONS
6. Learned counsel Sandhya Mailagir advanced arguments as
per case pleaded in the plaint. On perusal of the record, it appears that
the said room was in possession of brother of the plaintiff namely
Ashok. Agreement for Alternate Accommodation was executed on
10/08/2011 for alloting the suit premises in lieu of the said room
between Ashok and the developer. It has resulted into creation of rights
in the suit premises in favour of Ashok. Ashok exercised his discretion to
transfer his interest in the suit premises in favour of the plaintiff by
executing notarized Gift Deed dated 03/12/2015. Therefore, the
plaintiff wants protection by restraining the defendant from creating
third party interest or handing over possession of the suit premises to
anybody else. Considering the fact that prima facie case is in favour of
the plaintiff who has vested interest in the suit premises being legal heir
-- 4 of 6 --
N/m No. 844/2020 in S.C.Suit No. 2690/2019. 5 Order.
of Late Ashok. If interim protection is not granted, interest of the
plaintiff in the suit premises may be adversely affected due to creation
of third party rights in the suit premises. Balance of convenience is also
in favour of the plaintiff. Therefore, notice of motion can be allowed.
Hence, I pass the following order :
ORDER
1. Notice of Motion No. 844/2020 is made absolute in terms
of prayer clause (a).
2. Proceeding of N/m No. 844/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 18/02/2023. Mumbai.
1. Dictated online on : 18/02/2023.
2. Checked and Signed on : 20/02/2023.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 5 of 6 --
N/m No. 844/2020 in S.C.Suit No. 2690/2019. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/02/2023. 1.35 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 18/02/2023.
Judgment/Order signed by P.O. on 20/02/2023.
Judgment/Order uploaded on 20/02/2023.
-- 6 of 6 --