Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4094/2019 ..1.. Suit No.2638/2019
CNR No.MHCC010112332019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.4094 OF 2019
IN
SUIT NO.2638 OF 2019
Shri Amirzada Shahjada Rahmatullah
Khan and another .. Plaintiffs
Versus
Shri Sayyed Ansar Sarvar Sayyed and others .. Defendants
Mr. Ashish Singh, advocate for plaintiffs
Mr. V. T. Dubey, advocate for defendant Nos.1 and 2
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 13th November, 2019
ORAL ORDER
Notice of motion is taken out by plaintiffs for grant of temporary
injunction restraining defendants, their servants, agents, and/or any
persons claiming through them from entering and/or interfering into
peaceful use, occupation and possession of plaintiffs in the suit premises
i.e. Gala No. D, situated at Khan Chaudhary Compound, Survey
No.15(B), Hissa No.1, C.T.S. No.308, N.S.S. Road, Asalpha Village,
Ghatkoper (West), Mumbai – 400 084 and/or taking forceful possession
of the same without following due process of law.
Plaintiffs also prayed for appointment of Court Commissioner to
visit the suit premises and submits its report.
2. It is the contention of plaintiffs that father of plaintiff No.1 late
Shahazada Rehmatulla Khan along with father of plaintiff No.2 late
Mohibbul Haq Choudhary were original occupiers of the plot of land
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and became owners by adverse possession of area of land admeasuring
351.7 sq. mtrs., situate at Survey No. 15(B), Hissa No. 1, CTS No. 308,
Village Asalpha, Tal. Kurla, Mumbai Suburban District. More
particularly situate at N.S.S. Road, Asalpha, Ghatkopar (W), Mumbai.
After demise of original occupiers, plaintiffs being legal heirs have
succeeded aforesaid suit property. Defendant No. 1 is son of Sayyed
Sarwar Sayyed Mustafa, the original tenant of plaintiffs and husband of
Defendant No.2. Defendant No. 3 is sister in law of Defendant No.1
who claims to be Constituted Attorney of Defendant No.1. Present
Notice of Motion relate to suit premises which consists of ground plus
first floor structure having area admeasuring about 600 sq. ft. on each
floor situated on suit property. Sayyed Sarwar the father of defendant
no.1 was erstwhile tenant of plaintiffs in respect of suit premises along
with other commercial premises being Gala no. A to C situate at suit
property. In the year 2018 said tenant has surrendered his tenancy right
along with suit premises in the plaintiffs and executed affidavit dated
25.12.2018 in respect thereof. However, in last week of December 2018
said tenant along with his son defendant no.1 visited to plaintiff and
requested for allowing them to use and occupy suit premises for
provisional period on the pretext that defendant no.1 has come from
England and wants to try his luck in India. Considering past relationship
landlords have agreed to the request of said tenant and allowed him to
occupy suit premises for temporary period. On the pretext of executing
Leave and License Agreement said tenant and defendant no.1
fraudulently and by misleading to the landlords have obtained their
signature on agreement for conversion of tenancy right into ownership
and affidavit cum no objection dated 01.01.2019 without informing
nature and contents of the same. Later on, it reveal to the plaintiffs that
defendant no.1 has fraudulently obtained signature of landlords on the
said agreements as well as on other writings in favour of said tenant.
Therefore, plaintiffs called said tenant for explanation and at that time
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said tenant was also shocked and surprised and has accepted and
agreed to cancel the said agreement. Accordingly, said tenant willingly
and voluntarily executed agreement for cancellation dtd. 18.01.2019,
thereby canceling agreement as well as affidavit cum No Objection dtd.
01.01.2018. After cancellation of said agreement possession of suit
premises was restored by said tenant to the plaintiffs. Thereafter vide
registered agreement for Leave and Licence dated 20.06.2019 plaintiffs
have given the suit premises to their licensees namely Shaikh Badre
Alam and Devdas Tukaram Rane for period of 11 months i.e. up to
30.04.2020.
3. It is further contended that said tenant has no right, title and
interest of whatsoever nature in the suit premises and even the
defendants have no right in suit premises. However, they were claiming
themselves as owner of suit premises. On 11.06.2019 some unknown
person has pasted Public Notice on the door of suit premises and asked
to the licencees of the plaintiffs that suit premises is owned by said
tenant and contractual rent of same has to be paid to him failing which
they have to face legal consequences. Thereafter plaintiffs have verified
with the concerned Authority and it revealed that defendant no.1 has
applied for transfer of property tax on his name to which they have
objected vide letter dated 28.06.2019. They also issued notice dtd.
18.06.2019 to said tenant and thereby requested him not to execute any
document which would prejudice the interest of plaintiffs but he failed
to give reply to the said notice. Defendant No.1 has lodged complaint
in Ghatkopar Police Station about commission of offence of cheating
against plaintiffs and their licensees. They cooperated in investigation.
On 09.07.2019 defendant No.3 claiming herself as Constituted Attorney
of Defendant No.1 issued notice to the licensee of plaintiffs namely
Badre Alam who is in occupation of ground floor portion of suit
premises to vacate suit premises within 7 days failing which he has to
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face serious consequences. In view of Agreement for Cancellation
executed by said tenant none of the defendants have any independent
right, title or interest in the suit premises. In above background
plaintiffs have filed suit bearing no. 2129/19 against said tenant and
defendant nos.1 and 3 herein for the reliefs mentioned therein. The
defendant nos. 1 and 2 therein filed their written statement and
contended that said tenant on 01.01.2019 gifted suit premises by
executing Gift Deed and Affidavit dated 01.01.2019 and licensees in
occupation of suit premises are their licensees and they are in
possession of suit premises through them. Thereafter said tenant has
entered into Consent Term dated 17.09.2019 with plaintiffs wherein he
has admitted execution of Agreement for Cancellation dated 18.01.2019
and denied execution of Gift Deed or any other Deed whereby he has
transferred any right, title or interest in favour of defendant no.1. In
view of said Consent Terms plaintiffs have withdrawn suit against
defendant nos. 2 and 3 therein and accordingly suit was decreed against
defendant no.1 therein on 24.09.2019.
4. It is further contended that after execution of said Consent
Terms, defendants herein have attempted to take forcible possession of
suit premises on the pretext that suit against them is withdrawn by the
plaintiffs. Plaintiffs have lodged Report in that regard on 20.09.2019
and 26.09.2019 at Ghatkopar Police Station. Due to harassment caused
by defendants even licensee of the plaintiff Badre Alam Shaikh has
lodged report on 26.09.2019 and 28.09.2019 with Ghatkopar Police
Station but no action has been taken against defendants. Defendants
particularly defendant no.2 made various unsuccessful attempts to take
forcible possession of suit premises. However, due to timely
intervention of police they could not succeed in their intention. On
28.09.2019 defendants and their hirelings have illegally attempted to
take forcible possession of suit premises by threatening licensee Badre
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Alam Shaikh to vacate suit premises and hand over possession of same
to defendants. Plaintiffs have lodged report in that respect with
Ghatkpopr Police Station on 30.09.2019. They also issued notice to
defendants on same date to refrain themselves from interfering with
possession of the suit premises. It is contended that in above
circumstances plaintiffs are constrained to take out present Notice of
Motion. Accordingly, plaintiffs have prayed in above terms.
5. Defendant Nos.1 and 2 appeared and filed their reply to the
Notice of Motion on affidavit. It is contended that plaintiffs are not in
possession of suit premises and so question of giving any threat to the
plaintiffs by the defendants as alleged is false. Plaintiffs have already
filed suit bearing no.2129 of 2019 in respect of same suit premises
against these defendants on same cause of action which has been
withdrawn by them unconditionally and without obtaining any leave
from this Court to file fresh suit against these defendants in respect of
same subject of matter. Therefore, suit is not maintainable. It is
contended that plaintiffs are only concerned with land and not in any
manner with structure which is constructed by Mr. Sarwar Sayyed. They
have also adopted contents of the Written Statement in Suit No.
2129/2019.
6. It is further contended that plaintiffs by misguiding to Mr.
Sarwar Sayyed, by playing fraud upon him and in collusion with
advocate Deepak Singh and their advocates on the pretext of
withdrawing suit no. 2129/19 have filed Consent Terms dtd.
17.09.2019. They have abused process of law. They are not in
possession of suit premises so question of taking forcible possession by
them does not arise and Reports dated 20.09.2019 and 26.09.2019 are
lodged to create evidence. It is further contended that Sayyed Sarwar
Mustafa in his affidavit dated 10.10.2019 stated that plaintiffs have
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received valuable consideration and converted tenancy right into
ownership in his favour and he has already gifted suit premises in
favour of defendant no.1 by executing Gift Deed dtd. 01.01.2019 by
handing over possession to defendant no.1. Thereafter defendant no.1
has transferred Electricity Bill, Assessment Bill, Bombay Shop and
Establishment License on his name. Defendant no.1 is in use,
occupation and possession of suit premises and said document executed
by plaintiff is binding upon parties. Accordingly, defendant Nos.1 and 2
prayed for dismissal of Notice of Motion.
7. Plaintiffs filed rejoinder to the reply of defendant nos.1 and 2
and they reiterated facts mentioned in the plaint and denied the
contention of the defendant Nos.1 and 2 raised in the reply to the
Notice of Motion. It is contended that defendant no.2 herein has issued
legal notice through her lawyer to said tenant alleging therein that
against the execution of alleged Gift Deed the said tenant has received
Rs 6 lacs from them, however, inspite thereof he has not legally
transferred suit premises in favour of defendant no.1 herein. Said
tenant on 09.10.2019 gave reply to the said Notice through his advocate
and categorically denied all allegations made by defendant no.2. He
also denied execution of Gift Deed in favour of defendant no.1. It is
further contended that Consent Terms was tendered before the Court
on 17.09.2019 which was objected by rest of the defendants in the said
suit. However, after hearing all the parties to the said suit Court has
rejected the said objection and decreed the suit against defendant no.1.
In the light of said contention plaintiffs prayed for grant of relief in
terms of Notice of Motion filed by them.
8. Perused notice of motion, affidavit in support of it, reply of
defendant Nos.1 and 2, rejoinder of plaintiffs and pleadings of parties.
Heard respective counsel for parties.
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9. 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 plaintiffs have got prima facie case? …Yes.
2.Whether plaintiffs will suffer irreparable loss if
temporary injunction as sought is not granted?
…Yes.
3.Whether balance of convenience lies in favour of
plaintiffs?
…Yes.
4. Whether it is just and convenient to appoint Court
Commissioner in relation to suit premises as sought
by plaintiffs?
…No.
5. What order? As per final
order.
REASONS
As to Point Nos.1 to 4
10. At the outset I would like to point out that notice of motion has
not been served upon defendant No.3. So, counsel for plaintiffs made
statement that at this juncture they are not pressing for any relief
against defendant No.3. Defendant Nos.1 and 2 have already filed their
reply to present notice of motion. Therefore, notice of motion has been
taken for final hearing.
11. It is not in dispute that Sayyed Sarvar Sayyed Mustafa who was
original tenant of plaintiffs in relation to suit premises is father of
defendant No.1, and defendant No.2 is wife of defendant No.1. It is
also not in dispute that plaintiffs have earlier filed suit No.2129 of 2019
against original tenant Sayyed Sarvar as well as defendant Nos.1 and 3
herein. It is also not in dispute that said suit was disposed of on
24.09.2019 in terms of consent term executed between plaintiffs herein
and original tenant Sayyed Sarvar while plaintiffs were allowed to
delete the names of defendant Nos.2 and 3 therein. In view of this
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background now, I consider present notice of motion. Defendant Nos.1
and 2 have adopted contents of written statement filed in Suit No.2129
of 2019 and so, I have referred contents of said written statement while
dealing with present notice of motion.
12. Defendant Nos.1 and 2 have raised defence that previous suit
bearing No.2129 of 2019 in respect of same suit premises against
present defendants has been withdrawn unconditionally without leave
of the court so this suit is not maintainable. It is pertinent to note that
plaint shows cause of action of the dates subsequent to the disposal of
suit No.2129 of 2019. So, it cannot be said that present suit is based on
same cause of action on which earlier suit was filed. They have also
raised defence that plaintiffs are only concerned with land and not in
relation to the structure which is constructed by Sarvar Sayyed.
However, defendant No.1 herein has filed written statement in earlier
suit No.2129 of 2019 wherein it is admitted that four Galas including
Gala – D i.e. suit premises were let out to his father by plaintiff Nos.1
and 2. So at this stage prima facie contention of these defendants that
plaintiffs are only concern with land and not with the structure over it
and same was constructed by Sarvar Sayyed does not inspire
confidence. Although, these defendants have filed certain rent receipts
but it is matter of evidence during the trial that those receipts pertain to
suit premises.
13. Defendant Nos.1 and 2 also raised defence that consent terms
was filed by playing fraud upon Sarvar Sayyed under pretext of
withdrawing suit No.2129 of 2019. At this stage contention of
defendants in that regard cannot be considered and that has to be
decided after fullfledged trial. More so nothing is placed on record to
show that original tenant Sarvar Sayyed against whom said consent
decree has been passed has filed any suit challenging the said consent
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decree on the ground of fraud. At this stage, affidavit of original tenant
filed by these defendants cannot be considered particularly when there
is consent decree in existence and after passing of the same reply notice
was given by original tenant through his advocate on 09.10.2019 to the
notice of defendant No.2 wherein he has not made any such claim. So,
at this stage contention of these defendants in that regard cannot be
prima facie considered.
14. Defendant Nos.1 and 2 herein claimed their rights in the suit
premises through father of defendant No.1 on the basis of unregistered
Gift Deed dated 01.01.2019 in relation to suit premises. It is also
claimed by these defendants that father of defendant No.1 acquired
right in pursuance of Agreement for Conversion of Tenancy into
ownership dated 01.01.2019.
15. It is pertinent to note that document i.e. agreement for
conversion of tenancy into ownership dated 01.01.2019 on which these
defendants placed reliance is cancelled in pursuance of agreement for
cancellation executed between original tenant and plaintiff No.1's father
and plaintiff No.2 on 18.01.2019. More so, consent decree was passed
between plaintiffs and father of defendant No.1 and in said consent
decree father of defendant No.1 has confirmed execution of cancellation
deed dated 18.01.2019 cancelling the agreement for conversion of
tenancy rights into ownership dated 01.01.2019 and affidavit cum no
objection dated 01.01.2019 and so also, confirmed that same are not
binding upon plaintiffs. From consent decree it is also clear that father
of defendant No.1 has surrendered his rights, title or interest in suit
premises to the father of plaintiff No.1, and plaintiff No.2. Even
otherwise said Agreement for conversion of tenancy right into
ownership pertaining to suit premises is unregistered. It is useful here
to mention certain authorities relied upon by learned advocate for
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plaintiffs in the cases of Yashchandra (D) by LRS Vs. State of M.P. &
others AIR 2017 SC 4572, Suraj Lamp & Industries Pvt. Ltd., Vs.
State of Haryana and another AIR 2012 SC 206 and Neerukonda
Hanumantha Rao Vs. Puthumbaka Narayanprasad LEX (APH) 1983
116. Gist of these authorities is that, transfer of interest in immovable
property of more than Rs.100/ is required to be made by registered
document. In present case as pointed above aforesaid agreement of
conversion of tenancy right into ownership is unregistered and it relate
to suit premises which is immovable property worth more than
Rs.100/. That being so, prima facie it put cloud over the contention of
defendant Nos.1 and 2 about conferring of title of suit premises upon
father of defendant No.1. More so, in view of subsequent development
as pointed above prima facie much reliance cannot be placed upon said
agreement for conversion of tenancy rights into ownership.
16. So far as contention of defendant Nos.1 and 2 about execution
of Gift Deed dated 01.01.2019 by father of defendant No.1 in favour of
defendant No.1 relating to suit premises is concerned; no doubt, in
Mohammedan Law concept of oral Hiba is recognized. However, in light
of discussion made in preceding para that conferring of title relating to
suit premises in favour of father of defendant No.1 is prima facie under
cloud so much reliance at this stage cannot be placed upon aforesaid
Gift Deed. Learned advocate for plaintiffs has placed reliance upon
authority in the case of S. P. Muthuswamy Vs. V. Thayammal &
others, 2002 Legal Eagle 2370. In the said case parties were non
Muslim and that being so, they were governed by provisions of sections
122, 123 of the Transfer of Property in relation to Gift of property. In
present case parties to the alleged Gift Deed are Muslims and they are
governed by Rule of Muhammadan Law. It is useful here to mention
section 129 of the Transfer of Property Act which speaks that “Nothing
in this Chapter relates to gifts of movable property made in contemplation
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of death, or shall be deemed to affect any rule of Muhammadan law.”
That being so, cited authority is not of assistance to the plaintiffs. May it
be so, for the reasons mentioned earlier at this stage alleged Gift deed is
not of much significance.
17. Suit is simplicitor for injunction and plaintiffs are claiming
possession over the suit premises through their licensees. Learned
advocate for defendant Nos.1 and 2 submitted that licensees ought to
have brought suit claiming relief of injunction. He failed to point out
any provision which create any bar for licensor to bring suit for
injunction claiming protection of possession of licensee over licenced
premises. It is to be noted that in case licensees are dispossessed from
licenced premises without following due process of law by third party
then ultimately licensor would suffer irreparable loss. Certainly, when
licensee does not file suit claiming protection of his/her possession then
licensor can bring suit for protection of possession over the licenced
premises.
18. At this stage it is to be seen as to who is prima facie in
possession of suit premises. It is to be noted that original tenant Sayyed
Sarvar by consent term agreed that he has already surrendered his
right, title and/or interest of suit premises to landlords i.e. father of
plaintiff No.1, and plaintiff No.2. Alleged Gift Deed executed by father
of defendant No.1 in favour of defendant No.1 is silent about delivery of
possession of suit premises to defendant No.1. Although defendant
Nos.1 and 2 claimed that they have given ground floor portion of suit
premises to Badre Alam and first floor portion of suit premises to
Devdas Rane but, affidavit of these persons do not support the
contention of defendant Nos.1 and 2. On the contrary, they supported
the contention of plaintiffs that they have inducted them in suit
premises by registered licence Agreement dated 20.06.2019. Plaintiffs
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have also filed copy of registered licence Agreement on record in that
regard. No doubt along with plaintiff No.2 one Liyakat Khan is also
shown as licensor but learned advocate for plaintiffs submitted that said
Liyakat Khan is CA of plaintiff No.1. Copy of power of attorney executed
by plaintiff No.1 in favour of Liyakat Khan is also placed on record. But
said document is subsequent to date of execution of licence agreement.
May it be so, plaintiff No.2 is also party to those licence agreements.
That being so, at this stage those licence agreement cannot be thrown
away. Further plaintiff No.1 has not raised any objection till date
relating to said transaction and even the licensees Badre Alam and
Devdas Rane have not disputed about the said licence agreement then
merely because Liyakat Khan is party to those agreements does not
make them ineffective. I would like to mention that from the copy of
report lodged by defendant No.2 on 27.08.2019 with police station V.
B. Nagar, it is clear that Devdas Tukaram Rane and Badre Alam Shaikh
are shown occupants of the suit premises. As already pointed out that
Devdas Rane and Badre Alam Shaikh claimed their possession over first
floor and ground floor portion of suit premises respectively through
plaintiffs being their licensees so that statusquo is required to be
maintained during pendency of suit. Although defendant Nos.1 and 2
have filed certain documents particularly electricity bill dated
20.07.2019, copy of tax invoice dated 15.01.2019, copy of electricity
bill dated 19.12.2018, but in all those documents Gala Number is
mentioned as A4. There is no mention of Gala No. D while in copy of
receipt dated 10.01.2019, copy of bill of property tax dated 01.10.2005
and copy of bill dated 27.07.2019 property number is not mentioned.
So, those documents are not of much significance at this stage. Copy of
registration Certificate of Establishment shows address of suit premises
but it is clearly mentioned in it that said certificate does not give any
right to property or possession or title of the rights of the premises or
property. So that document is also not of much relevance at this stage.
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On the contrary as earlier discussed plaintiffs have brought material to
show prima facie their possession over suit premises through their
licensees namely Badre Alam Shaikh and Devdas Rane. Thus, they have
got prima facie case in their favour. Certainly, if their licensees are
dispossessed without following due process of law then hardship will be
caused to the plaintiffs and they will suffer irreparable loss. Hence, I
answer point Nos.1 to 3 in affirmative.
19. So far as relief of appointment of commissioner to inspect suit
premises is concerned; plaintiffs have not made out any ground for
appointment of Commissioner at this stage. Commissioner cannot be
appointed to collect evidence. Therefore, I am not inclined to appoint
commissioner and hold that it is not just and convenient to appoint
Court Commissioner in relation to suit premises. Hence, I answer point
No.4 in negative.
In light of discussion made above and my findings to point Nos.1
to 4, I hold that notice of motion deserves to be partly allowed. Hence,
pass following order.
ORDER
1. Notice of Motion No.4094 of 2019 is partly allowed as under:
Defendant Nos.1 and 2, their servants, agents, any
persons claiming through them are hereby restrained by order of
temporary injunction from entering, interfering into peaceful use,
occupation and possession of plaintiffs through Shaikh Badre Alam of
ground floor portion of suit premises and through Devdas Tukaram
Rane of mezzanine first floor portion of suit premises, during pendency
of suit without following due process of law.
2. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 13.11.2019 Gr. Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18.11.2019, 5.30 p.m.
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
13.11.2019
JUDGMENT/ORDER signed by P.O.
on
15.11.2019
JUDGMENT/ORDER uploaded on 18.11.2019
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