Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT
GR.BOMBAY
NOTICE OF MOTION NO.4065 OF 2019
CNR NO.MHCCO1-001176-2019
IN
S.C. SUIT NO.828 OF 2019
Prashant Shriniwas Bapat ..Plaintif
V/s
1. Shaikh Shehzad Maqsood
Ahmed and anr ..Defendants
Plaintif in person
Ld. advocate J.P.Thakkar for defendant no.1
Defendant no.2 in person
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 04th February, 2020
ORAL ORDER
1. This notice of motion is tendered
by the plaintif interalia for restraining
defendant no.1 from creating any third party
right in respect of room no.1, Bapat Banglow,
ground foor, house no.266, Patankar Marg,
Kurla(W), Mumbai-400 070 (hereinafter
referred to as suit premises).
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2. Heard.
3. In short the case of the plaintif is
that defendant no.1 is an illegal occupier of
the suit premises. Defendant no.2 is the real
brother of the plaintif. Defendant no.1 has
executed the registered deed of transfer
dated 16/03/2016 with defendant no.2 without
consent and knowledge of the plaintif. The
plaintif is also co-owner of the suit premises.
The plaintif has fled RAE and R Suit no.618 of
2007 before the Small Causes Court against
Ajit Narayan Ketkar, the erstwhile tenant of
the suit premises. The suit was decreed. The
plaintif has fled execution and at the time of
execution defendant no.1 was found in
possession. The plaintif has taken out
obstructionist proceedings before the Small
Causes Court wherein defendant no.1 led
evidence and tendered deed of transfer. The
plaintif would submit that defendant no.1
would create third party interest in the suit
premises and complicate the matter and
therefore fled the suit for declaration
alongwith the present notice of motion.
4. The defendant no.1 has fled
written statement and denied the contents of
the plaintif. The stand of defendant no.1 is
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that property card stands in the name of
plaintif and defendant no.2’s deceased father
and father’s real sister. The plaintif and
defendant no.2 are only two legal heirs of two
deceased co-owners of the suit property.
Defendant no.2 who is the co-owner by
registered deed of transfer dated 16/03/2016
transferred the suit premises in favour of
defendant no.1 and therefore defendant no.1
became lawful owner of the suit premises.
Defendant no.2 was competent to transfer the
suit premises. Defendant no.1 has paid
valuable consideration to defendant no.2. The
notice of motion is not maintainable and liable
to be dismissed.
5. Defendant no.2 in his reply
contended that the plaintif owns one
tenement on the said address but since for
past around 18 months he has rented the
same and shifted at Mulund. The building is in
dilapidated condition. Defendant no.1 is not
illegal occupant. He further submitted that he
being co-owner has executed registered sale
deed of suit premises in favour of defendant
no.1. The plaintif by hiding his name has
fled suit in Small Causes Court in order to
acquire possession from the tenant. The
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original tenant who was in need of money for
kidney ailment and went with request at the
house of plaintif to surrender the tenancy.
The plaintif did not entertain him. The
original tenant surrendered tenancy to
defendant no.2 and Rs.2 lacs as the
surrender value was paid by defendant no.2 to
the original tenant by selling the premises to
defendant no.1. The suit premises was
transferred by defendant no.2 being co-owner
and hence prayed for rejecting the notice of
motion.
6. On the rival contentions of the
parties, following points arise for my
determination and fndings to it are recorded
for the reasons stated hereinafter:-
POINTS
(i) Whether the plaintif has made out a
prima facie case in his favour?
(ii) Whether the needle of balance of
convenience tilt in favour of plaintif?
(iii) To whom irreparable loss would be
caused?
(iv) What order?
FINDINGS
(i) In the afrmative
(ii) In the afrmative
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(iii) To the plaintif.
(vi) As per fnal order
REASONS
Point Nos. 1 to 3
5. At the outset, from the brief
narration of the above said facts it is
undisputed that defendant no.2 executed
deed of transfer dated 16/03/2016 in favour of
defendant no.1. Even it is not disputed that
plaintif and defendant no.2 are co-owners of
the property wherein the suit premises is
situated. There is nothing on record either
from the plaintif or from defendant no.2 that
the property wherein the suit premises is
situated was subjected to partition between
them. The property card shows the name of
Shriniwas Balkrishna Bapat and Kum. Sumati
Balkrishna Bapat i.e. name of father and aunt
of plaintif and defendant no.2. The death
certifcate of Shriniwas Bapat shows his death
on 22/09/2006 and that of Kum.Sumati Bapat
on 26/10/2002. After their death, the plaintif
and defendant no.2 became the co-owners of
the said plot wherein the suit premises is
situated i.e. Bapat bunglow. The plaintif
being co-owner of the suit premises fled
eviction suit against erstwhile tenant Ajit
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Ketkar being RAE and R Suit no.618 of 2007
before the Small Causes Court and the suit
was decreed. The tenant was directed to
hand over the possession to the plaintif. The
copy of the said judgment dated 03/01/2013
is also annexed by the plaintif. The plaintif
further submitted that plaintif has fled
execution proceedings and while executing
the decree for possession, there was
obstruction by defendant no.1 and plaintif
therefore tendered obstruction proceedings
bearing no.332 of 2016 before the Small
Causes Court. In the said proceedings,
defendant no.1 submitted deed of transfer in
his favour. The said document is registered
document. The plaintif’s contention is that
defendant no.2 had made false statement in
the document of transfer deed. At this
juncture, it would not be proper for this Court
to go into the validity of the deed of transfer.
The deed of transfer is subject matter of the
challenge in the suit and it is to be decided
after the evidence of the parties.
6. The plaintif is the co-owner of the
property wherein the suit premises is situated.
Admittedly the said property is not subjected
to partition between plaintif and defendant
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no.2. Defendant no.2 prima facie was not
having exclusive right over the suit premises.
Again it is a question to be decided after the
evidence whether defendant no.2 had
absolute right to execute deed of transfer in
respect of the suit premises. The plaintif had
fled the suit for eviction against erstwhile
tenant before Small Causes Court. The decree
was passed in his favour. There is no whisper
about the same in the deed of transfer and as
regard the possession of the erstwhile tenant.
The question for consideration is to maintain
status quo as regard the ownership of the suit
premises pending thesuit to avoid multiplicity
of the proceedings. The defendant no.1 failed
to point out that he will face any irreparable
loss if he is restrained from creating third
party interest in the suit premises. The
admitted position of fact shows that plaintif is
having colour of title in the suit premises
being co-owner of the entire plot of land. The
plaintif even prosecuted against erstwhile
tenant for eviction from the suit premises.
Prima facie the plaintif has made out the case
for grant of injunction as he has colour of title
over the entire plot of land and the needle of
balance of convenience tilt in his favour. If
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defendant no.1 is not restrained from creating
third party interest in the suit premises, then
it would lead to multiplicity of the proceedings
and further complications as it is evident from
the deed of transfer that defendant no.2
executed the said deed of transfer of the suit
premises in favour of defendant no.1, pending
the execution. Hence, in order to curb the
multiplicity of the proceedings, the plaintif
had made out case for grant of protection
pending the suit. Hence, I answer point
nos.1 to 3 in the afrmative.
Point No.4
7. In view of the above discussions
and fndings to point nos.1 to 3, notice of
motion needs consideration. Hence, it is
expedient to pass following order:-
ORDER
1. N/M No.4065/2019 is made absolute in
terms of prayer clause (a).
2. Cost in the cause.
3. N/M No.4065/2019 is disposed of
accordingly.
04/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on: 04/02/2020
Transcribed on: 12/02/2020
Signed on: 17/02/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
18/02/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
04/02/2020
Judgment and order signed by P.O. 17/02/2020
Judgment/order uploaded on 18/02/2020
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