Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4231 OF 2019
(CNR No. MHCC01-011594-2019)
IN
S.C. SUIT No. 1566 OF 2021
Mohammed Zuber Mohammed ]
Yusuf Shah alias Mohd. Zuber Shah ]
P.O.A. Holder of Mrs. Saida Begam ]
@ Saida Begam wd/o Gulam ]
Murtuza. ].. Plaintiff.
V/s.
1. Liyakat Kazi and others. ]..Defendants.
Advocate Mr. Mr. Sagar Batavia for the plaintiff.
None present for the defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 25th JANUARY, 2022
ORDER
The plaintiff has instituted the suit following players:-
1. The Defendant Nos. 1 and 2 may be declared as
trespassers.
2. The Defendant Nos. 1 and 2 may be directed to
pay the compensation at the rate of Rs. 3000/– per
month from October 2019 till handing over of the
possession.
-- 1 of 9 --
2
3. The Court may pass the order of eviction against
Defendant Nos. 1 and 2 from the suit property.
4. Defendant Nos. 1 and 2 may be restrained from
entering on the suit property.
2. The suit property is Room No. 11, Naurang Chawl, CTS No.
248, Qureshi Nagar, Kurla (East), Mumbai, 400070. It is hereinafter
referred as ‘suit property’ for the sake of convenience.
3. It is the case of plaintiff that the suit is instituted by the
plaintiff through her Power of Attorney. Plaintiff Saida is the owner of
the suit property admeasuring about 594 m². Defendant Nos. 1 and 2
are having no right, title or interest in the suit property. Plaintiff has
produced on record an agreement and various other documents
showing her relation with the suit property.
4. Plaintiff has further stated that the suit property was given
to one Jamir Shaikh. He is missing since long. His son Sameer was
residing in the suit property and was paying rent in the name of Jamir.
However, Sameer stopped payment of rent from the month of December
2017. The suit room was kept locked for long time. Plaintiff found one
Imran in possession of the suit property on 19/08/2018. Hence,
plaintiff lodged a complaint to police on 20/08/2019 against Sameer.
Imran vacated the suit property after lodging of the complaint.
5. Plaintiff has further stated that she found Defendant no. 2
in possession of the suit property while she was collecting rent on
04/10/2019. When she asked Defendant No. 2 about his possession of
the suit property, he informed plaintiff that he was paying rent to
-- 2 of 9 --
3
Defendant No.1. He threatened plaintiff and used bad words. Hence
plaintiff lodged a police complaint on 05/10/2019. Defendant No. 2
refused to show the document.
6. It is the case of Plaintiff that on 08/10/2019 plaintiff
demanded the documents to the wife of Defendant No. 2. She refused
to show the document and used bad words to Plaintiff. She also told
Plaintiff to bring court order. Therefore, NC complaint was registered
with police on 08/10/2019 for eviction of the trespassers. However,
police also instructed Plaintiff to bring the Court order. Plaintiff has
further stated that Defendant Nos. 1 and 2 have no right to remain in
possession of the suit property. Hence, they may be evicted.
7. Plaintiff has filed Notice of Motion for the following
players:-
1. The Court may pass interim order for eviction of the
Defendant nos. 1 and 2 from the suit property.
2. Defendant nos. 1 and 2 may be restrained from entering
in the suit property till final disposal of the suit.
3. Defendant nos. 1 and 2 may be restrained by a temporary
order of injunction not to create third-party interest in the
suit property or transfer the same to the 3rd party till final
disposal of the suit.
4. Defendant nos. 1 and 2 may be directed to deposit the
amount of Rs. 3000/– per month in the court till final
disposal of the suit.
5. Defendant no. 3 that is police may be directed to call
upon and verify the documents from the defendants.
-- 3 of 9 --
4
8. Defendant Nos. 1 and 2 failed to appear before the Court
though duly served with a Notice of Motion. Hence, the Notice of
Motion proceeded without the reply. I have heard learned advocate for
the plaintiff at length. I have gone through the documents produced on
record by the plaintiff. Following points arise for my determination and
my findings to them are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether Plaintiff has proved prime facie
case?
Partly in the
affirmative.
2 Whether Plaintiff has proved that she will
suffer irreparable loss if the Motion is
dismissed?
Partly in the
affirmative.
3 In whose favour does the balance of
convenience lie?
Partly in the
affirmative.
4 What order? Notice of Motion is
partly allowed as per
following order.
R E A S O N S
AS TO POINT No.1 :
9. It is the case of the Plaintiff that she is owner of the suit
property. In support of her claim, she has filed an indenture dated
17/12/1982 executed by the trustees of the last will and testament of
Ardesir Hormasji Wadia in favour of Sakhawatali Abidali and Mohamed
Razi Abdul Kader. The property mentioned in the indenture is Servey
No. 288, Hissa No. 1 (part) and CTS No. 249 and 278 (part) which is
-- 4 of 9 --
5
more particularly described in first schedule to the Indenture. The first
schedule says the same property along with the boundaries mentioned
in that schedule. Plaintiff has filed on record a copy of the order of
Charity Commission of dated 13/07/1981 whereby the trustees of the
will were permitted to conduct the sale. Plaintiff has produced on
record a copy of the order passed by the City Survey Officer on
06/09/2001 by which the name of Valiuddin Sultanudiin Kazi was
recorded to the 167.21 Sq. Mtrs. of the suit property.
10. Plaintiff has further filed on record a copy of the letter
dated 05/02/2001 issued by the Manager of the A.H.Wadia Charity
Trust stating therein that the trust has sold the 594.75 Sq. Mtrs. from
City Survey No. 249 (Part) and 178 (Part) to SakhawatAli Abidali on
24/01/1982. Plaintiff has produced on record the electricity bill, Aadhar
Card, PAN Card, Voter’s Identity Card, and Voters List. These documents
are drawn on the address of the suit property. However, these
documents are not sufficient to show the title of the plaintiff over the
entire Chawl.
11. It is also important to note that Plaintiff has not stated
anywhere in the plaintiff as to how she became owner of the property.
She has not produced on record anything to show that she was
recovering the rent from the tenants. In the circumstances above it is
difficult to infer even
prima facie that plaintiff has any ownership rights
over the suit property.
12. Defendants were served with a notice of motion but they
failed to appear before the court. Therefore, the entire plaint and
contentions in the affidavit in support of a Notice of Motion are not
-- 5 of 9 --
6
challenged by the Defendants at all. This situation will not relieve the
Plaintiff from the burden of
prime facie showing the court that she is
owner of the property.
13. Plaintiff has claimed the relief of eviction of Defendants
from the suit property as an interim relief. She has further prayed for a
temporary injunction against the Defendant nos. 1 and 2 that they may
be restrained from entering in the suit property. She has further sought
directions to defendant Nos.1 and 2 to deposit the amount of
Rs.3,000/– per month in the Court till final disposal of the suit.
However, in the light of above observations, I have come to the
conclusion that Plaintiff has not proved sufficient
prima facie case to
make her entitled for these reliefs. If Defendants create any third-party
interest or transfer the suit property to third person, that will create
complications and multiplicity of proceedings. The protection available
in the form of doctrine of
lis pendence is in my considered opinion not
sufficient to protect the suit property in the present matter. The said
doctrine will only make those transactions entered into during the
pendency of the suit subject to the decision of the suit. Therefore, it
would be proper to direct the Defendant Nos. 1 and 2 not to create
third-party interest or transfer the suit property to any third person till
final disposal of the suit. Plaintiff has proved
prima facie case to that
extent. Hence, I answer point no. 1 partly in the affirmative.
AS TO POINT NO. 2: –
14. As I have earlier discussed, Plaintiff has to prove her title
over the suit property by leading necessary evidence at the time of trial.
At this stage, she has not produced sufficient evidence on record to
prima facie show that she is owner of the suit property. Therefore, if
-- 6 of 9 --
7
the Defendants are evicted from the suit property at the instance of the
plaintiff, they will suffer irreparable loss. Admittedly, they are in
possession. Therefore, it is not necessary to evict them at the interim
stage. It is also not necessary to direct them to pay any amount during
pendency of the suit. If plaintiff succeeds, she can recover the amount
at any stage. As the Defendant Nos. 1 and 2 are in possession of the
suit property, it would not be proper to restrain them from entering into
the suit property till final disposal of this suit. In that case, the
Defendants will suffer irreparable loss. The rights of Plaintiff will be
endangered in case the Defendants Nos. 1 and 2 sell the suit property to
third person or create any third-party interest therein during pendency
of the suit. In that case plaintiff will suffer irreparable loss and it will
create complications and multiplicity of proceedings. Therefore, I
answer point no. 2 partly in the affirmative.
AS TO POINT NO. 3: –
15. In view of all above discussion, I have come to the
conclusion that, the balance of convenience lies in favour of Plaintiff so
far as the relief regarding directions to defendants not to transfer the
suit property to third person or create a third-party interest in the suit
property till final disposal of this suit is concerned. Therefore, I answer
point no. 3 partly in the affirmative and in answer to point no. 4, I
proceed to pass following order.
O R D E R
1. Notice of Motion No.4231 of 2019 is partly
allowed.
-- 7 of 9 --
8
2. Defendant Nos. 1 and 2, their servants, agents
or anyone on their behalf are hereby temporarily
restrained from creating third-party interest in the
suit property or transfer the suit property to the
third-party during pendency of this suit.
3. Rest of the prayers in the Notice of Motion
No.4231 of 2019 are rejected.
4. Cost of the Motion will follow in Main cause.
5. Notice of Motion No.4231 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 25.01.2022 Gr.Mumbai.
Dictated on: 25.01.2022
Typed on : 25.01.2022
Signed on : 25.01.2022
-- 8 of 9 --
9
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25.01.2022 AT 3.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of ProNo.uncement of
Judgment/Order
25.01.2022
Judgment/Order signed by P.O. on 25.01.2022
Judgment/Order uploaded on 25.01.2022
-- 9 of 9 --