Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4072/2019 ..1.. Suit No.2752/2019
CNR No.MHCC010111832019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.4072 OF 2019
IN
SUIT NO.2752 OF 2019
Mr. Mohammed Husain Ata Husain Rizvi .. Plaintiff
Versus
Mr. Aslam Saukat Shaikh .. Defendant
Mr. O. P. Singh, advocate for plaintiff.
Mr. Ahmad Ali Khan, advocate for defendant.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 29th November, 2019
ORAL ORDER
Notice of motion is taken out by plaintiff for order of temporary
injunction restraining defendant, his servants, agents, person or persons
claiming through him or them from dispossessing plaintiff from suit
premises and/or interfering, disturbing the plaintiff's use, occupation
and possession of suit premises admeasuring 10 x 15 square feet,
situated at Plot No.2, Room No.1248, Lotus Colony, Govandi, Mumbai
400 043 without following due process of law.
2. It is the contention of plaintiff that Municipal Corporation of Gr.
Mumbai has allotted the suit premises to one Abdul Gaffar Sirajuddin in
lieu of demolition of his premises under some project. MCGM by its
letter dated 05.07.2002 directed the allottee to pay the arrears of taxes
immediately; failing which action would be initiated. Said Abdul Gaffar
has transferred the suit premises in the year 1985 to plaintiff and since
then plaintiff is in use, occupation and possession of the suit premises.
But taxes continued to stand in the name of Abdul Gaffar Sirajuddin.
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3. It is further contended that plaintiff has given suit premises to
one Khadim Abbas Rizvi on leave and licence basis. Said licensee has
occupied the suit premises for 32 years and was doing business in suit
premises. During his lifetime Khadim Rizvi had obtained documents like
ration card, election ID card, income tax and GST papers at the address
of suit premises. As plaintiff was in need of suit premises; said Khadim
Rizvi handed over possession of suit premises to plaintiff in the month
of June, 2019 and by writing dated 21.09.2019 he has surrendered the
suit premises to plaintiff. Licensee was using electricity given by
neighbour and after coming into possession of suit premises plaintiff
applied for electricity connection. Electricity Authority after inspection
has installed electric meter in the name of plaintiff in suit premises.
4. It is further contended that defendant has no right, title and
interest in suit premises. But he is attempting to enter in suit premises
by showing forged documents to justify his illegal claims. On
16.10.2019 at about 4.30 p.m. defendant attempted to enter in the suit
premises. Plaintiff has made several complaints with police station
Shivaji Nagar against defendant but no action has been taken against
him and they suggested plaintiff to seek relief from Civil Court. Plaintiff
is in settled possession of suit premises and he, therefore, is entitled for
protection. Accordingly, plaintiff urged in above terms.
5. Defendant filed reply and objected the notice of motion. He has
not disputed that Abdul Gaffar Sirajuddin was original allottee of suit
premises. However, it is his contention that said Abdul Gaffar by
executing affidavit dated 22nd May, 1980 has transferred the right, title
and interest in respect of suit premises to Sayed Manzoor Husain Rizvi
and thereby put him in exclusive use, occupation and possession of suit
premises. Said Sayed Rizvi used to make payments of municipal taxes in
the name of Abdul Gaffar. Documents like electricity bill and photo
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pass having census number issued by MCGM stands in the name of
Sayed Rizvi at the address of suit premises.
6. It is further contended that plaintiff and Sayed Manzoor Rizvi
are brothers. Sayed Manzoor Rizvi has given suit premises to his cousin
namely Khadim Rizvi for use and occupation on friendly term and
permitted him to avail other documents, which have been referred and
relied by the plaintiff. Manzoor Rizvi also gave NOC dated 22nd May
2010 to Khadim Rizvi for issuance of passport to his two sons at the
address of suit premises. Said Khadim also obtained documents like
ration card and election ID and to apply VAT/TAN in his name at the
address of suit premises. It is further contended that Khadim Rizvi has
no document on his name in respect of suit premises other than the
documents referred and relied by plaintiff. He has handed over
possession of suit premises to Sayed Manzoor Rizvi in the year 2008.
7. It is further contended that since Khadim Rizvi availed
documents of suit premises, so by taking benefit of the same he falsely
issued surrender letter dated 21.09.2019 and alleged to have
surrendered possession on 27.12.2017. Even plaintiff tried to change
the electric connection in his name. Plaintiff has no documentary proof
in respect of suit premises and therefore he has tried to take benefit of
documents of original allottee and Khadim Abbas and falsely alleged
that he is in use and occupation of suit premises.
8. It is further contended that Manzoor Husain Rizvi has sold and
assigned the right, title and interest in respect of suit premises to
defendant by executing Agreement for Sale, Power of Attorney and
affidavit all dated 2nd September, 2019 for total consideration of
Rs.22,50,000/. Defendants by denying all allegations made by plaintiff
against him prayed for dismissal of notice of motion.
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9. Plaintiff filed rejoinder to the reply of defendant and denied the
contentions of defendant and prayed to allow notice of motion.
10. Perused notice of motion, affidavit in support of it, reply of
defendant, rejoinder of plaintiff, pleadings of party and documents filed
on record. Heard respective counsel for parties. Learned advocate for
plaintiff relied upon the authority in the case of Shamsher Vs. Rustam
and others, AIR 1988 Rajasthan 188 in support of his submission.
11. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under:
POINTS FINDINGS
1.Whether plaintiff has got prima facie case? …No.
2.Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
…No.
3.Whether balance of convenience lies in favour of
plaintiff?
…No.
4. What order? As per final
order
REASONS
As to point Nos.1 to 3:
12. There is rival claim in relation to possession over suit premises
made by the parties. However, there is no dispute that suit premises
was allotted to one Abdul Gaffar Sirajuddin and previously Khadim
Abbas Rizvi was in occupation of suit premises.
13. Plaintiff has claimed that he has acquired suit premises in the
year 1985 from Abdul Gaffar Sirajuddin. However, he has not filed any
document in that respect. He only mentioned that transfer letter has
been misplaced. Nowhere he contended that Abdul Gaffar has
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transferred suit premises by executing any document in his favour.
Further, he claimed that he had given suit premises to one Khadim
Abbas Rizvi on leave and licence basis. But no such leave and licence
agreement is placed on record by the plaintiff. However, he has filed
affidavit of Khadim Abbas Rizvi who stated that he was gratuitous
licensee of plaintiff in respect of suit premises and handed over
exclusive possession of suit premises to plaintiff in the year 2017 and
also executed surrender letter dated 21.09.2019 in favour of him. It is
pertinent to note that plaintiff has come with the case that said licensee
handed over possession of suit premises to him in the month of June,
2019 and thereafter said licensee vide writing dated 21.09.2019
admitted surrender of suit premises to plaintiff. Thus, there is
inconsistency in the contention of plaintiff and statement of Khadim
Abbas Rizvi as to when possession of suit premises was delivered to the
plaintiff by him.
14. I have gone through copy of surrender letter dated 21.09.2019.
It shows that Khadim Abbas Rizvi has handed over suit premises on
27.12.2017 and removed all his belongings from there. But as pointed
above, plaintiff has averred that possession of suit premises was handed
over to him in the month of June, 2019. If possession of suit premises
was delivered by Khadim Abbas Rizvi on 27.12.2017 then why
surrender letter was not executed on the same date and what made him
to write the said letter on 21.09.2019 i.e. after about 20 months of date
of alleged handing over possession of suit premises. More so, nowhere,
it is specifically mentioned in the said surrender letter that possession of
suit premises has been handed over to the plaintiff. On careful scrutiny
of said letter dated 21.09.2019 it reveals that it was addressed to
plaintiff by said Khadim Abbas Rizvi from the address of suit premises
and address of plaintiff is mentioned as AlQuba Tower, Behind Naaz
Hotel, Navpada, Kurla (West), Mumbai. Had Khadim Abbas Rizvi
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handed over possession of suit premises to the plaintiff on 27.12.2017
as per letter dated 21.09.2019 then why address of Khadim Abbas Rizvi
is shown that of suit premises and that of plaintiff is shown of some
different premises. Address of the plaintiff in cause title of the plaint is
shown that of suit premises while in letter dated 21.09.2019 it is shown
that of AlQuba Tower, Behind Naaz Hotel, Navpada, Kurla (West),
Mumbai. Above facts prima facie put cloud over the contention of the
plaintiff and it shows that he has not come with clean hands. No doubt,
electricity bill dated 07.11.2019 is shown to have been issued in the
name of plaintiff at the address of suit premises. Merely on that basis it
cannot be said that he is in settled possession of suit premises.
Defendant has also filed document i.e. copy of electricity bill dated
22.05.2019 which stands in the name of one Sayyad M. Ahamad. This
fact prima facie cast shadow over the contention of plaintiff that
licensee has been using electricity given by neighbour.
15. There is no dispute that from the copy of ration card, copy of
election identity card, copy of intimation under section 143 of the
Income Tax Act, copy of registration certificate it is clear that those
documents stand in the name of Khadim Abbas Rizvi at the address of
suit premises. It is pertinent to note that defendant has filed document
i.e. copy of affidavit affirmed by Abdul Gaffar Sirajuddin to show that
brother of plaintiff namely Manzoor Husain Rizvi acquired rights in
relation to suit premises on 22.05.1980. That document is not
registered. Certainly, transfer of immovable property valued more than
Rs.100/ is required to be made by registered document. However, that
document can be used for collateral purposes to consider character of
possession of Manzoor Hussein Rizvi in relation to suit premises. It
prima facie shows delivery of possession of suit premises in favour of
Manzoor Hussein Rizvi by Abdul Gaffar Sirajuddin. Copy of electricity
bills of suit premises dated 11.10.1985 and 20.09.1986 show that same
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stands in the name of Sayyad M. Ahamad. Learned advocate for
plaintiff submitted that it does not stand in the name of Manzoor
Husain Rizvi. Learned advocate for defendant drawn my attention to
letter dated 25.01.1986 issued by Sayyed Manzoor Husain Rizvi
addressed to the Managing Director of BEST in relation to suit premises
to point out that Sayyed M. Ahamad and Sayyed Manzoor Husain Rizvi
are name of one and same person. It is apparent from said letter that
prima facie those names relate to one person. So, contention of learned
advocate for the plaintiff pertaining to the electricity bills of suit
premises cannot be considered.
16. Khadim Abbas Rizvi stated in affidavit that he was gratuitous
licensee of plaintiff in respect of suit premises and handed over
possession of suit premises to plaintiff in the year 2017. But he has not
specifically stated date when he has handed over possession of suit
premises to plaintiff.
17. I would like point out that defendant has also filed no objection
certificate of said Sayyed Manzoor Husain Rizvi affirmed on 20.05.2010
to show that he has given no objection for issuance of passport in favour
of sons of Khadim Abbas Rizvi at the address of suit premises which he
claimed that same belongs to him. Had Khadim Abbas Rizvi would
have taken suit premises from plaintiff on licence as stated by him then
why no objection certificate for issuance of passport of his sons at the
address of suit premises was taken from Sayyed Manzoor Husain Rizvi.
This fact casts shadow over the affidavit of Khadim Abbas Rizvi and also
over the said surrender letter.
18. Defendant has also filed copy of Agreement for Sale to show
that Sayyad Manzoor Husain Rizvi has agreed to sale suit premises to
him and he has paid full and final consideration of Rs.22,50,000/ to
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him. However, he has not clarified whether said amount was paid by
cash or cheque and copy of receipt annexed to the said agreement does
not bear signature of Sayyad Manzoor Husain Rizvi. More so, that
document is not registered so prima facie it cannot be considered for
arriving at conclusion in relation to transfer of right and title of suit
premises in favour of defendant. In copy of affidavit shown to have
affirmed by Sayyad Manzoor Husain Rizvi, it is mentioned that he has
acquired suit premises from Balaji Chandar Sakat vide affidavit dated
12.05.1988 but it is not inconsonance with theory of defendant.
Defendant has contended that possession of suit premises was delivered
by Khadim Abbas Rizvi to Sayyed Manzoor Husain Rizvi in 2008. Had it
been so then he would not have given no objection in favour of sons of
Khadim Abbas Rizvi for issuance of passport at the address of suit
premises and copy of intimation under section 143 of the Income Tax
Act and copy of registration certificate would not have been issued at
the address of suit premises after few years of 2008. Thus, contention of
defendant in that regard does not inspire confidence. Even defendant
has not filed any document to show as to when possession of suit
premises was delivered by Khadim Abbas Rizvi to Sayyed Manzoor
Husain Rizvi.
19. In the present facts of matter considering the fact that plaintiff
has not come with clean hands and made inconsistent contention as to
when possession of suit premises was delivered to him by Khadim Abbas
Rizvi and he has not filed any document to show that he has acquired
suit premises from Abdul Gaffar in the year 1985 and in view of
discussion made earlier authority cited is not of assistance to the
plaintiff and I hold that plaintiff has failed to prove prima facie case and
balance of convenience also does not lie in his favour and he also failed
to prove that he will suffer irreparable loss if relief sought is refused.
Hence, I answer point Nos.1 to 3 in negative and pass following order:
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ORDER
Notice of Motion No.4072 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 29.11.2019 Gr. Bombay
Typed on : 29.11.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.11.2019
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
29.11.2019
JUDGMENT/ORDER signed by P.O.
on
30.11.2019
JUDGMENT/ORDER uploaded on 30.11.2019
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