Order 1

Order Details: Notice of Motion
Pdf Text: 1 Draft N/M (Suit 2997/19)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
DRAFT NOTICE OF MOTION
IN
S.C. SUIT NO. 2997/2019
Ushakiran Hirendra Singh ..Plaintiff
V/s.
Chandan Chittaranjan Sharma & Ors. ..Defendant
Appearance:
Adv. Mr. Gandhy for plaintiff.
Adv. Mr. Narendra Gharat with Adv. Mr. Kini for defendants no.1 and 2.
Adv. Mr. Dalal for defendant no.3.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03.
DATE : 11.12.2019.
ORAL ORDER
1. Taken out by praecipi.
2. Perused draft Notice of Motion (N/M) supported by an
affidavit of plaintiff Ushakiran Singh with compilation of documents
filed on record vide list at pg.28 with reference to the prayer clauses(c)
and (d) read with prayer clause(e), the plaintiff has sought relief due to
urgency pressed by the Ld. Counsel for the plaintiff.
3. I have heard oral submissions of Ld. Adv. Mr. Gandhy for
the plaintiff. I have also perused citations and authorities submitted by
Ld Counsel for the both sides.
4. Ld. Counsel for the plaintiff submitted that, the plaintiff has
approached this Court by filing a Suit for setting aside orders dated
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12.12.2018 and 6.3.2019 passed in Suit No. 2563/2018 in this Court in
the case of Murtuza Ali Shaikh & Ors V/s. MCGM and defendant no.1.
In this case for perpetual injunction against defendant no.3 is sought
from entering into plots of land and disturbing peaceful possession on
the suit plot, as described in Exh.A along with the plaint. Ld. Counsel
for the plaintiff submitted that, for the sake of brevity and convenience,
he wants to rely on the averments made in the plaint and documents
filed on record along with draft N/M.
5. Ld. Counsel for the plaintiff submitted that, the plaintiff is
the owner of plots of land admeasuring 42,500 sq. meter and 29,500 sq.
meter respectively both bearing survey nos.112A, CTS 4 and 5, village
Hariyali and village Tirandaz, adjacent to each other, abutting to the
boundary of village Tirandas, Tal. Kurla. The suit property is described
in detail vide Ex.A along with the plaint. Defendants no.1 and 2 are
owners of the plot of land bearing CTS 6A,6B which was previously
bearing CTS 38 (now CTS 101) of the village Tirandaz, Tal. Kurla,
abutting to the boundary of village Hariyali, as described in Exh.B along
with the plaint and referred to in the plaint as “Sharma's land”.
6. Ld Counsel for the plaintiff further submitted that, prior to
the year 2003, Mr. Pratapsingh Soorji Vallabhdas, Dilipsingh Vallabhdas
and Ms. Jyotsna Vikramsingh Soorji Vallabhdas were entitled to the
plaintiff's plots and Chandraprabhan Sharma and Chittaranjan Sharma
were owners of the Sharma's land. Now, said Chandraprabhan Sharma
and Chittaranjan Sharma have died and defendants no.1 and 2 have
succeeded and have become owners of the said Sharma's land. It is
submitted that, from the record, it appears that, there was dispute
between said Pratapsingh Vallabhdas on one hand and Chandraprabhan
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Sharma and Chittaranjan Sharma on the other hand regarding use of
road and boundaries of the plaintiff's plots and Sharma's land,
therefore, said Pratapsingh Vallabhdas had filed a Suit in Hon'ble High
Court bearing Suit No.421/1970 against Chandraprabhan Sharma and
Chittaranjan Sharma. Hirendra Bachcha Singh was the formal
defendant in the said suit. In the suit, before Hon'ble High Court, the
parties had entered into consent terms dated 5.4.1976 and a consent
decree came to be passed. Copies of consent terms and consent decree
are filed on record vide Exhs.C, C1 and C2, respectively.
7. Ld. Counsel for the plaintiff further submitted that, in the
year 2005, boundary dispute arose in respect of the lands on the border
of village Hariyali and village Tirandaz and while giving effect to the
said consent terms and consent decree of the High Court, the matter
was referred to the Collector for demarketing the area through City
Survey Officer of Mulund and Ghatkopar who were entrusted with the
job at the behest of Mr.Hirendra Singh for survey of said land.
Accordingly, measurement was carried out to verify MR plan no.404/
05 which was prepared by City Survey Officer, Mulund along with MR
25/05. City survey officer, Mulund and Ghatkopar had superimposed/
matched two M.R Plans i.e. MR 25/05 and MR 404/05. They found
that, there might have been overlapping of the boundaries of both
villages and some void was created in between the boundaries of two
villages, which is called as “No man's land”. However, it is submitted
that, no such report or noting is available but by a letter dated
5.6.2006, city survey officer, Ghatkopar had submitted a report to the
Collector stating that, joint survey sheet was prepared by city survey
officer of Mulund and Ghatkopar and area of 6445.56 sq. meters is
neither included in Hariyali village nor in Tirandaz village.
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8. Ld. Counsel for the plaintiff further argued that, as per
understanding of the plaintiff on the basis of MR Plan No.25/05 and
MR Plan No.404/05, city survey officers of Mulund and Ghatkopar had
carried out joint surveys of CTS 6A, 6B and 101 of village Tirandaz and
CTS 4,5 and 6 of village Hariyali by ETS machine from 23.3.2008 to
28.3.2008 and a joint report dated 30.5.2008 has been submitted to the
Collector. As per said report, it is necessary to fix permanent boundaries
of village Hariyali and village Tirandaz to settle the said dispute in
between the parties.
9. On the above background, it is alleged that, during last 10
months, some preparation for construction work and activities is going
on on Sharma's land. On 14.3.2019, in the afternoon, a mob of 300
people had gathered at Sharma's land and some persons had come to
the plaintiff's plot to put patra boundary. Plaintiff's son had resisted the
alleged unauthorized acts and dispute had taken place, which was
reported to the police. Defendant no.1 was also present at the site. It is
submitted that, Mr. Pankaj Bhople from Vikroli Parksite Police station
had come to the site and controlled the said mob and diffused the
tension.
10. It is submitted that, the plaintiff had come to know about
filing of Suit bearing No.2563/2018 for injunction against defendant
no.1. MCGM is defendant no.1 in the said suit. Present defendant no.1
is defendant no.2 in the said suit. It is alleged that, defendants no. 2 to
7 in the suit have filed the above said suit in collusion with defendant
no.1. The court had declined to grant any interim relief on 26.9.2018.
The plaintiff apprehends that, defendants no.1 and 4 to 7, in collusion,
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had obtained some order from the court in the above said suit affecting
the right of the plaintiff and his possession. Under the above
circumstances, it is submitted that, the plaintiff is entitled for interim
protection in terms of prayer clauses (c) and (d) as prayed in the draft
Notice of Motion.
11. Ld. Counsel for the plaintiff has relied on following
authorities in support of his above submission :
1. Rame Gowda (Dead) by LRs V/s. M. Vardappa
Naidu (Dead) by LRs and anr.((2004)1 Supreme
Court Cases 769)
2. Anathula Sudharka V/s. P. Buchi Reddy (Dead)
by LRs and Ors. (AIR 2008 SC 2023)
3. Maria Margarida Sequeria Fernandes and Ors
V/s. Erasmo Jack de Sequeria(Dead) through
LRs (AIR 2012 SC 1727).
12. I have gone through the above authorities and find that,
these authorities are in respect of concept of 'settled possession' and
what constitute the settled possession. It is held that, settled possession
gives right to the party in possession to protect the same. In the second
authority, it is held that, where a cloud is raised over plaintiff's title and
he is not in possession, suit declaration and possession, with or without
a consequential injunction, is the remedy. In case of injunction
simpliciter, relief can be granted on the basis of possession. Issue of
title will not be generally in question before the court.
13. Relying on the above authorities, Ld Counsel for the
plaintiff submitted that,the plaintiff is entitled for interim protection in
view of the ratio of the above decisions, which support the plaintiff's
claim of possession and her entitlement to get protection during
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pendency of the suit.
14. Ld. Counsels for the defendants have strongly opposed the
request of Ld. Counsel for the plaintiff for grant of interim relief to the
plaintiff on the basis of documents on record. It was argued that, the
plaintiff's claim in the suit itself is not maintainable in law and the
relief, claimed by the plaintiff, cannot be granted by this Court. Ld.
Counsel for the defendants no.1 to 3 specifically argued that, no
injunction can be granted and no orders and directions can be passed in
the present suit setting aside the orders of competent civil court passed
in Suit No.2563/2018 (Murtuza Ali Shaikh & Ors V/s. MCGM and anr.).
When the plaintiff's main claim in the suit itself is not maintainable,
how the plaintiff can be entitled for interim relief.
15. Ld. Counsel for the defendants further argued that, there is
no urgency in passing the interim order in this case as plaintiff herself
has stated in para 11 of the plaint that, incident had taken place on
14.3.2019 and all other facts and incidents, which have been referred to
by the plaintiff, during the course of his submission, had taken place
prior to that.
16. Regarding boundary dispute in respect of the land from
village Hariyali and village Tirandaz, it was pointed out that, joint
survey and measurement has already taken place and report has been
submitted. Therefore, correctness or otherwise of the said report and
other factual aspects, which are involved in this case regarding location
of the boundaries of the suit property, it is a matter of trial and
defendants are entitled to submit their affidavit in reply and it is prayed
that, without considering their say/ reply, no orders regarding interim
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relief should be passed. Prima facie no case is made out by the plaintiff
for any urgency for passing the interim order.
17. In support of his above submission, Ld Counsel for the
defendants no. 1 to 3 has placed reliance on the decision of Hon'ble
Bombay High Court in the case of Rajendraprasad R. Singh and Ors.
V/s. MCGM (2003 AIR (Bom) 392), wherein Hon'ble Bombay High
Court has held that, order passed under Order 39 Rules 1 and 2 of CPC
refusing to grant injunction is appealable order and order to issue notice
under Rule 3 of the said Order amounts to refusal to grant injunction
till notice is served to other side.
18. Relying on the above authority, Ld. Counsel submitted that,
the plaintiff's request for grant of protection is not maintainable in law.
Reliance is also placed on the Roznama of case Suit No. 2563/2018
(Murtuza Ali Shaikh & Ors V/s. MCGM and anr.) and it was submitted
that the remedy of appeal against the refusal of order by the court in
the said case is available to the plaintiff.
19. I have gone through the above authorities and documents
filed on record and taken into consideration oral submissions made by
Ld Counsels for both sides. Prima faice, I find that, the plaintiff has not
been able to make out a case for showing any kind of urgency to move
this Court for grant of interim relief to the plaintiff as all the relevant
facts have occurred at least prior to six months upto 10 months. The
dispute between the parties appear to be circled around boundary
dispute of the boundaries of village Hariyali and village Tirandaz. Joint
survey and measurement has been carried out, still boundaries are not
settled due to some technical reasons. Prima facie, I find substance in
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the contention raised by Ld. Counsel for the defendants that the interim
relief, as prayed in the present N/M, cannot be granted so as to restrain
the defendants from acting upon the orders passed by this court in Suit
No. 2563/2018 dated 12.12.2018 and 6.3.2019.
20. I have gone through the authorities cited and relied upon
by Ld. Counsels for both sides and ratio of the said cases lays down
settled legal position regarding plaintiff's right to protect settled
possession. However, these authorities are of no help to the plaintiff for
getting order of interim relief, as prayed. Hence, I proceed to pass
following order:
ORDER
1. Oral prayer of Ld. Counsel for the plaintiff for grant
of interim relief in terms of prayer clauses (a) and
(b) in Draft Notice of Motion is hereby refused.
2. Suit to proceed further for filing affidavit in reply by
the defendant, by next date.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 11.12.2019 Gr. Bombay (C.R.03)
Dictated on :11.12.2019
Typed on : 11.12.2019
Draft given on 11.12.2019
Signed by HHJ on : 16.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 16.12.2019
TIME: 4.18 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 11.12.19
Judgment/ order signed by P.O on 16.12.19
Judgment/ order uploaded on 16.12.19
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