Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3999/19 in S.C.Suit No. 2504/19. [ 1 ] Order.
MHCC010110432019
Presented on : 02.11.2019
Registered on : 02.11.2019
Decided on : 24.09.2025
Duration : 5 Y, 10 M, 23 D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3999 OF 2019
IN
S. C. SUIT NO. 2504 OF 2019
Shri Ashish Prakash Keer )...Plaintiff
Versus
Shri Rajendra Dhondu Keer and others )...Defendants
CORAM : JUDGE H. C. SHENDE
(COURT ROOM NO.65).
DATE : 24th SEPTEMBER, 2025.
Appearances :
Smt. Deepika Mule, Advocate for plaintiff.
Smt. Priyanka Patil, Advocate for defendant no.1.
ORDER
By way of suit, present notice of motion and through oral
arguments, it has been submitted by learned advocate for plaintiff that
father of the plaintiff had 25% share in right, title and interest in the
suit flat for which defendant no.1 offered Rs.1,50,000/- to defendant
no.5. However, the defendant no.5 denied the execution of alleged
declaration surrendering the right, title and interest in the suit property.
The value of the property was about Rs.40,00,000/- at the relevant
time. Admittedly there was no partition occurred in the family. The
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N/m No. 3999/19 in S.C.Suit No. 2504/19. [ 2 ] Order.
defendant no.1 claiming that he has given share to the defendant no.5 –
mother of the plaintiff, however at the relevant time the plaintiff was
minor. He became major in the year 2012. Thereafter no share was
offered to the plaintiff. Defendant no.5 denied the fact of receiving
amount towards share in the affidavit in reply. The plaintiff and
defendant no.5 so also defendant no.6 have not relinquished or released
their 25% right, title, interest in the property by way of unregistered
deed. The plaintiff by filing the present suit asking his share in the
property. By way of present notice of motion the plaintiff seeking relief
that pending hearing and final disposal of the suit the defendants or any
person acting for and on behalf of the defendants be restrained from
transferring or alienating the suit property, so also requested to appoint
Court Receiver or any other person to receive the property till final
disposal of the suit.
2. The defendant no.1 objected the claim of plaintiff, however
through reply and written arguments it has been submitted that
defendant no.1 is paternal uncle of plaintiff and brother of plaintiff’s
father Mr. Prakash Dhondu Keer. They all are legal heirs of Late Dhondu
Shivram Keer who expired on 09/03/1982. Deceased Dhondu Shivram
Keer was lawful tenant of Room No.13, Chawl A, Dwarkadas
Tribhuvandas Chawl, Plot No. 1091, T.P.S. IV (Mahim), New Prabhadevi
Road, Mumbai-25. The defendant no.1 was studying at the time of
death of his father Dhondu Shivram Keer. He has completed his entire
education from the suit premises and continued to stay in the suit
premises till redevelopment. Defendant no.1 was the only son to take
care of defendant no.3 who is mother of defendant no.1 and
grandmother of plaintiff. She is still staying with defendant no.1 at the
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N/m No. 3999/19 in S.C.Suit No. 2504/19. [ 3 ] Order.
address mentioned in the plaint. After marriage also he is residing in the
suit premises. However, the other brothers of defendant no.1 Prakash
Dhondu and Vijay Dhondu got separated after their marriages. There
was a family dispute in between Prakash Dhondu and his wife. The
criminal complaint and litigation are also filed between the parties.
3. Meanwhile in 2001 developer approached to defendant
no.3 as a legal heir of Dhondu Shivram Keer and they decided to
redevelop the property. Till that period the defendant no.1 with his
family and defendant no.3 all resided in the old premises. The
permanent alternate accommodation dated 16/06/2001 entered into
between developer and defendant no.3 and the transit accommodation
allotted to defendant no.3 in lieu of the suit premises. The defendants
after receipt of agreed amount as decided in between them to be given
by the defendant no.1 to them cannot claim right, title and interest in
the original room or in the transit accommodation or in the permanent
alternate accommodation. In fact, as mutually agreed in between them,
the defendant no.1 had paid amount of Rs.1,25,000/- each to the legal
heirs of deceased Dhondu Shivram Keer i.e. defendant no.3, 2 and 5
within span of two years and defendant no.2 and 3 accordingly
executed declaration. Defendant no.3 executed Gift Deed. It is placed
on record by the defendant no.1. On 30/12/2015 defendant no.1
entered into an agreement for sale with defendant no.4 and sold the
transit accommodation by executing registered deed. Defendant no.5
has already received the entire amount mutually agreed between the
parties. Still one notice dated 06/05/2016 issued by her to defendant
no.1. It was duly replied by defendant no.1 and after receiving the reply
they approached before this court. As per the defendant there is no
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N/m No. 3999/19 in S.C.Suit No. 2504/19. [ 4 ] Order.
merit in the suit filed by the plaintiff. It needs to be dismissed limline
with heavy cost and there is no merit in the notice of motion also.
Defendant no.4 also filed reply and made submission that the real
dispute if at-all is between the plaintiff and defendant no.1. The suit
property was purchased by defendant no.4 from defendant no.1 by
complying all legal formalities and they are innocent purchaser. At that
time defendant no.1 represented himself as sole owner of the suit
property. Defendant no.4 is in occupation and possession of the
property purchased from defendant no.1 by executing the registered
documents. Defendant no.4 has no concern with the dispute between
the family members. All false allegations made by plaintiff by way of
suit and notice of motion. There is no merit in it. No prima facie case
lies in favour of plaintiff. Injunction if granted the prejudice will be
caused to defendant no.4. Plaintiff will not suffer with any loss. So the
suit and notice of motion needs to be dismissed.
4. The plaintiff has filed present suit seeking declaration of his
share in the suit premises and for injunction restraining defendants
from creating third party right, interest in respect of suit property. The
plaintiff is claiming that he is one of the legal heirs of Late Dhondu
Shivram Keer who was the original tenant of the premises. The plaintiff
is claiming his share through his father and defendant no.5 mother. As
per the plaintiff, he is entitled to his share in transit accommodation
and in lieu of flat to be allotted in redevelopment. Defendant no.1
resisted the notice of motion by contending that in the year 2007 all the
legal heirs including the plaintiff’s mother i.e. defendant no.5
relinquished their right in the property by accepting Rs.1,25,000/- from
the defendant no.1. So plaintiff did not have any subsisting right in the
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N/m No. 3999/19 in S.C.Suit No. 2504/19. [ 5 ] Order.
suit property. The defendant no.4 also filed written statement who
claims to be a purchaser of the property i.e. the transit accommodation.
It is their contention that defendant no.4 is bonfide purchaser for value
without notice and injunction would cause great harm to them.
5. Having considered the rival contentions, it is evident that
the plaintiff has raised a serious triable issue regarding his alleged right
in the tenancy and consequent redevelopment premises. So far as the
question as to whether the alleged relinquishment allegedly made by
defendants in the year 2007 or prior to it was valid, whether it was
binding upon the plaintiff who claiming himself to be a minor person at
the relevant time, and whether the defendant no.4 is a bonafide
purchaser for the value without notice are all the matters requiring trial
and cannot be conclusively decided at this interim stage.
6. The record if scrutinized minutely, then it reveals that the
balance of convenience certainly lies in protecting the suit premises
from being alienated or transferred so as to avoid multiplicity of
proceeding and to preserve the subject matter of the suit. No doubt, the
court is considering the contention raised by the defendant no.4.
However, it is also matter to be decided at the time of trial by recording
of evidence.
7. In such circumstances, a limited injunction deserves to be
granted as per the final order which would not cause any prejudice to
any party. Even the possession of defendant no.4 on the suit property
cannot be disturbed but the property will certainly get preserved from
the alienated further. Hence in the circumstances and for the reasons
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N/m No. 3999/19 in S.C.Suit No. 2504/19. [ 6 ] Order.
the court proceed to pass following order :
- ORDER -
1. Notice of Motion No. 3999/2019 is partly allowed.
2. All the defendants i.e. defendants no.1 to 6 are
hereby restrained by temporary injunction from creating
third party rights in suit property (described in para 3 of
plaint and in Exh.B annexed with plaint) so also restrained
from alienating, transferring it in any manner pending
hearing and final disposal of suit.
3. Parties to take note.
4. No order as to costs.
5. Proceeding of Notice of Motion No. 3999/2019 in
Suit No. 2504/2019 is closed.
Date : 24/09/2025. (H. C. SHENDE)
Judge, City Civil Court,
Gr. Bombay.
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N/m No. 3999/19 in S.C.Suit No. 2504/19. [ 7 ] Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01.10.2025 at 5.30 pm
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Smt. H. C. Shende.
(Court Room No.65).
Date of Pronouncement of Judgment/Order 24/09/2025.
Judgment/Order signed by P.O. on 01.10.2025
Judgment/Order uploaded on 01.10.2025
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