Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 3804-19 in S.C. Suit no. 2585-19
1 Date : 23.10.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3804 OF 2019
IN
S.C. SUIT NO. 2585 OF 2019
(CNR NO.MHCC01 0102762019 )
Shri. Shantaram Ganu Pate & Ors. .. Plaintiffs
Versus
Shri. Harishchandra Ganu Pate .. Defendant
Appearances :
Ld. Adv. Kishor Pashte for plaintiff present.
Ld. Adv. Santosh Sitap for defendant present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 23.10.2019
ORDER
1. The plaintiffs filed instant Notice of Motion seeking following
reliefs :
(a) That the pending hearing and final disposal of the suit
this Hon’ble Court be pleased to restrain the defendant,
his agents, servants, representatives and / or any
person or persons claiming through them by an Order
of injunction of this Hon’ble Court from alienating,
parting with possession of the suit properties and / or
creating a third party interest in respect of the suit
property i.e. Room No. 3, Sahyog Building, Ground
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Floor, 5, Mint Road, Fort, Mumbai – 400 001
admeasuring about 160 sq. ft. in any manner.
(b) That the pending hearing and final disposal of the suit
this Hon’ble Court be pleased to restrain the defendant,
his agents, servants, representatives and / or any
person or persons claiming through them by an Order
of injunction of this Hon’ble Court from disturbing the
peaceful possession of the Plaintiffs and / or abusing,
quarreling with the plaintiff no. 1 and his family
member disturbing their peaceful possession in the suit
properties in any manner.
(c) Interim and adinterim reliefs in terms of prayer clause
(a) and (b) above be granted.
(d) For such other and further reliefs as the nature and
circumstances of the case may required.
2. It is the case of plaintiffs that they have filed suit seeking
partition and determination of their ¾th share in Room No. 3,
Sahyog Building, Ground Floor, 5, Mint Road, Fort, Mumbai – 400
001 admeasuring about 160 sq. ft. (hereinafter shall be referred to
as suit property).
3. It is contended by the plaintiffs that they and defendant are
the legal heirs of the common ancestor deceased Ganu Bhaya Pate,
who died on 06.09.1987, leaving behind him the plaintiffs and
defendant as his only legal heirs to succeed his property. It is
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contended by the plaintiffs that the deceased during his life time,
purchased the suit property out of his own income and the
plaintiffs and defendant were resided in the suit property since
their birth. The father of plaintiffs died intestate. The plaintiff no.
1 is resided in the suit property alongwith the his family as well as
with the family of defendant. However, the defendant in order to
deny his claim trying to dispossessed the plaintiff no. 1 from the
suit property. Hence, plaintiff constrained to file instant suit
alongwith the Notice of Motion.
4. Per contra defendant opposed Notice of Motion by filing say.
It is contended by the defendant that he is the sole owner of the
suit property. Entire correspondance with the Government as well
as NonGovernment Institutions are in the name of defendant. It is
further contended by the defendant that during life time of his
father oral family arrangement was made whereby, the defendant
was allowed to occupy the suit property alone and plaintiff no. 1
was given property at native place. It is further submitted by the
defendant that he allowed the plaintiff no. 1 and his son to reside
in the suit property during bad days of the plaintiff. However, the
plaintiff no. 1 is trying to show his right, title and interest in the
suit property. Hence, defendant prayed for dismissal of Notice of
Motion.
5. Heard both the sides. Perused Notice of Motion, reply as
well as plaint. The defendant did not dispute that the plaintiff no.
1 is residing in the suit property alongwith his family. The
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4 Date : 23.10.2019
defendant only contended that plaintiff no. 1 is residing on a
humanitarian ground. Thus, the possession of the plaintiff no. 1 is
permissive possession. From the pleadings of the defendant, it is
clear that he has admitted the possession of plaintiff no. 1
alongwith his family in the suit property. The parties have raised
contentious issues such as limitation and oral family arrangement,
which is in my view, is subject matter of trial. It is further not in
disputed by the defendant that the suit property was purchased by
common ancestor namely Ganu Bhaya Pate. Hence, Primafacie, it
appears that the plaintiffs are having share in the suit property.
Thus, in view of the above fact and circumstances, in my view, the
plaintiffs have made out case for allowing the Notice of Motion.
Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion No. 3804 of 2015 is hereby made absolute
in terms of prayer clause (a) and (b).
2. Parties to bear their own cost.
3. Notice of Motion No. 3804 of 2015 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 23.10.2019 Greater Bombay.
Dictated on : 23.10.2019
Typed on : 23.10.2019
Draft Submitted on : 23.10.2019
Checked on : 24.10.2019
Signed on : 24.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/10/2019 at 5.00 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
23/10/2019
JUDGMENT/ORDER signed by P.O.
on
24/10/2019
JUDGMENT/ORDER uploaded on 24/10/2019
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