Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4579 OF 2019
(CNR No. MHCC01-012549-2019)
IN
S.C. SUIT NO. 2237 OF 2019
Smt. Rahibai Keshav Khandagale ]
Aged :66 years, Occ: Household, ]
Hindu Adult, Indian Inhabitant of Mumbai ]
Presently Residing at Flat No. 624, ]
Building No. K-8, New Amrapali, ]
Co-operative Housing Society Ltd. ]
M.M.R.D.A Vasahat, Kanjur Marg, ]
Mumbai- 400 078. ]..Plaintiff.
V/s.
1. Smt Housabai Shravan Pandit ]
Aged 63 years, Occ: Household ]
2. Mr. Jagan Shravan Pandit ]
Aged about 38 years, Occ: not known ]
3. Smt. Sandhya Jagan Pandit ]
Age about 32 years, Occ: Household, ]
Defendant Nos. 1 to 3 , All Hindu Adult ]
Indian Inhabitants of Mumbai Residing at ]
Flat No. 624, Building No. K-8, New ]
Amrapali Co-operative Housing Society ]
Ltd., M.M.R.D.A Vasahat, Kanjur Marg, ]
Mumbai- 400 078. ]
4. Mumbai Metropolitan Regional ]
Development Authority a statutory authority]
appointed under Mumbai Metropolitan ]
Regional Development Act having its ]
registered office at Bandra Kurla Complex ]
Bandra (East), Mumbai- 400 051. ]
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5. Chief Officer, Social Development Cell., ]
Mumbai Metropolitan Regional ]
Development Authority a statutory authority]
appointed under Mumbai Metropolitan ]
Regional Development Act having its ]
Registered office at Bandra Kurla Complex ]
Bandra (East), Mumbai – 400 051. ] ..Defendants.
Advocate Mr. O.R. Tiwari for the plaintiff.
Advocate Mrs. Subhedar for the Defendant Nos.4 and 5/ MMRDA.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 19th MARCH, 2022
ORDER
The suit is instituted for the relief of the declaration and
injunction. The suit premises is Flat no.112 in the Building No. K-8
situated at New Amrapali Co-operative Housing Society Ltd./MMRDA
Complex, Kanjur Marg West, Mumbai–400078 admeasuring about 225
ft² carpet area. This property is hereinafter referred as ‘suit property’
for the sake of convenience.
2. It is the case of plaintiff that plaintiff and defendant No. 1
are real sisters and daughters of Smt. Shevantabai. Defendant No. 2 is
the son of defendant No.1. Defendant No.3 is the daughter of defendant
No.1. Shevantabai died on 28/04/2013 leaving behind plaintiff and
defendant No.1 as her legal heirs. The suit property was allotted to
Shevantabai as a project affected person. Defendant Nos. 4 and 5 are
the statutory authorities who allotted the suit property to Shevantabai.
They allotted flat No. 624 to plaintiff and flat No.212 to defendant No.1
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in the same building. Plaintiff and defendant No. 1 are occupying their
respective flats.
3. It is the case of plaintiff that Shevantabai was residing
alone in the suit property. Shevantabai had all the documents like
ration card, electricity bill on the address of the suit property.
4. It is the case of the plaintiff that after the demise of her
mother, defendant Nos. 1 to 3 and Smt. Daya Sahebrao Shinde and her
Husband Sahebrao Shinde entered into the suit property without any
written consent of the plaintiff. They illegally continued to occupy the
suit property with the dishonest intention and malafide motive to grab
the suit property. Defendant No. 2 got the electricity bill of the suit
property transferred in his name and also approached to the Society
through his advocate to get the suit flat transferred in his name. When
plaintiff came to know about the attempt made by defendants, plaintiff
issued a notice through her advocate to the Society objecting to transfer
the suit property in the name of any third person without written
consent and permission of the plaintiff. The notice was sent to various
other authorities also.
5. Plaintiff came to know in the month of August-2015 that
the electricity connection of the suit property is transferred in the name
of defendant No.2. Therefore, she wrote a letter to the concerned
electricity company for re-transferring the said connection in the name
of her deceased mother. Accordingly, the said connection was again
transferred in the name of deceased mother of the plaintiff.
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6. Plaintiff further came to know that defendant No.2 through
his advocate wrote a letter to the Society on 22/07/2015 to transfer the
suit flat in his name. He produced notarized declaration dated
18/07/2015, notarized affidavit of defendant No. 2 dated 18/07/2015
along with indemnity bond of the same date. He also produced alleged
affidavit of deceased mother of plaintiff dated 12/04/2012, copy of
alleged nomination form, copy of allotment letter issued by MMRDA to
the deceased mother of plaintiff and other documents including
electricity bill transferred in his name. Plaintiff got copies of the
application and documents annexed to it. Defendant No. 2 is trying to
show that deceased mother of plaintiff had appointed him as her
nominee. However there is no signature of witness or stamp of the
society on the nomination as can be seen from the Xerox copy.
Defendant No. 2 tried to get the suit flat transferred in his name by
using the fabricated and forged and bogus documents. Since plaintiff
had issued a letter to the office bearers of the society, they assured
plaintiff not to issue NOC for re-transferring the said flat in the name of
defendant no. 2. Defendant No. 2 had a quarrel with the plaintiff in the
Society Meeting and hence plaintiff filed a complaint against the
defendant No. 2 to the Police.
7. Plaintiff has further stated that she issued a notice to
defendant Nos. 1 to 3 and Sahebrao and his wife for vacating the suit
property and transfer the 50% share therein in the name of the plaintiff.
Though the police recorded the statement of plaintiff regarding her
complaint, they did not take any further action regarding that
complaint. Defendant Nos. 1 to 3 and Sahebrao and his wife sent a
reply to the plaintiff on 21/12/2017 to which plaintiff sent a rejoinder.
Plaintiff issued a letter to the defendant nos. 4 and 5 stating therein the
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true facts and requesting to take action against the defendant Nos.1 to 3
and to transfer the suit property in the name of plaintiff and defendant
No.1. However, they have not taken any action till date.
8. Plaintiff has further stated that Daya and Sahebrao Shinde
have vacated the suit property. However the defendant Nos. 1 to 3 are
still unlawfully occupying the suit property and hence the plaintiff is
constrained institute the present suit against the defendants.
9. Plaintiff has filed Notice of Motion for the following reliefs:
a) To direct the defendant Nos.1 to 3. To vacate the suit
premises and hand over the possession thereof to the def.
Nos. 4 and 5.
b) Direction to defendant Nos. 4 and 5 to evict the defendant
Nos. 1 to 3 forthwith.
c) To restrain the defendant No.3 from parting with
possession of the suit premises or creating third party
interest in the suit premises.
d) To appoint an Court Commissioner for evicting the
defendant Nos.1 to 3 and take over the possession of the
suit flat and keep it under the seal.
e) Defendant Nos. 1 to 3 may be directed to pay monetary
compensation of Rs. 5,000/- p.m.
10. Plaintiff has filed affidavit in support of the Notice of
Motion.
11. Defendant Nos. 1 to 3 appeared through their Advocate but
did not file reply to the Notice of Motion and they remained absent at
the time of arguments.
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12. Defendant Nos.4 and 5 have not filed the reply and filed
documents on record.
13. I have heard learned Advocate Mr. O.P. Tiwari for plaintiff
and Advocate Mrs. Subhedar for the MMRDA.
14. Considering the case of plaintiff, documents on record, plaint and
submissions of both learned advocates, 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 her
prima-
facie case?
Partly In the
Affirmative
2 Whether plaintiff has proved that she will
suffer irreparable loss if the Notice of
Motion is not made absolute?
Partly In the
Affirmative
3 In whose favour does the balance of
convenience lie?
Partly In favour of
the plaintiff.
4 What Order and decree ? As per Final Order
R E A S O N S
AS TO POINT NO.1 :
15. Before going to the merits of the matter, it is necessary to
state the admitted facts. It is admitted that the suit property was
originally owned by Shevantabai. It is admitted that plaintiff and
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defendant no. 1 are the daughters of Shevantabai. It is admitted that
Shevantabai died intestate. It is admitted that plaintiff and defendant
no. 1 have got independent flats in the same building.
16. It is the case of plaintiff that defendant Nos. 1 to 3 are
trying to grab the suit property. Defendant No. 2 had got electricity bill
of the suit property transferred in his name. Plaintiff has raised
complaint to the Society as well as defendant Nos.4 and 5 for not
transferring the suit property in the name of defendant Nos. 1 to 3.
17. Defendant Nos. 1 to 3 appeared in the matter through their
Advocate but did not file any reply on record. Therefore, the
contentions in the plaint and affidavit of plaintiff have gone
unchallenged.
18. The Documents produced by the MMRDA on record show
that there was separate accommodation granted to the plaintiff,
defendant no. 1 and their mother. It is admitted by the plaintiff in her
plaint that the suit property is in possession of the defendant nos. 1 to
3.
Prima facie it appears from the relationship between the plaintiff and
defendant Nos.1 to 3 that they both are having share in the suit
property.
19. As per settled position of law, every co-sharer has right to
possess every inch of the joint property till the partition is effected.
Plaintiff has claimed in her prayer clause of the Notice of Motion that
the defendant Nos. 1 to 3 may be directed to hand over the possession
of the suit property to the defendant Nos.4 and 5 during the pendency
of the suit. The defendants being the co-sharers, such relief cannot be
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granted against them. Plaintiff has also prayed for the relief that the
defendant Nos. 4 and 5 may be directed to evict the defendants Nos. 1
to 3 from the suit property. However for the reason that they are the co-
sharers in the suit property, they can not be evicted at this stage as
prayed by the plaintiff. Plaintiff has further prayed that the Court may
direct the defendant Nos. 4 and 5 to keep the flat in sealed condition till
the decision of the suit. Plaintiff has further prayed for the directions to
defendant Nos. 1 to 3 not to part with the possession of the suit
property or create any third-party interest therein till final disposal of
this suit. It is further prayed for appointment of the Court Receiver to
vacate the defendants nos. 1 to 3 from the suit property and to take the
suit flat in possession and keep under sealed condition and supervision.
Plaintiff has further prayed for directing the defendant nos. 1 to 3 to
pay compensation of Rs. 5000/- to the plaintiff per month.
20. In view of the above position when plaintiff and defendant
no. 1 are the co-sharer of the suit property, then it is clear that they
have equal right to enjoy the suit property. None of them can be ousted
from the suit property unless partition is effected. So far as the prayer
of compensation of Rs. 5,000/- to the plaintiff per month is concerned,
plaintiff can initiate enquiry for mesne profits after her share is
determined and separated. Therefore it is not necessary to grant any
such compensation in this matter as prayed by the plaintiff. I find no
reason to appoint Court Receiver at this stage.
21. In view of the above, plaintiff has
prima facie proved that
she is co-sharer in the suit property with defendant No. 1. Therefore,
she has right to occupy the same jointly. Hence, the defendant Nos. 1 to
3 can be restrained from ousting the plaintiff from the suit property. If
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the defendant nos. 1 to 3 create any third party interest in the suit
property or part with the possession of the suit property, then it will
create complications in the matter and will also lead to multiplicity of
the proceeding. Therefore I have come to the conclusion that the
plaintiff has proved her prima facie case to that extent. I answer point
No. 1 partly in the affirmative.
AS TO POINT NOS. 2 AND 3 :
22. If the defendants Nos. 1 to 3 part with the possession of
the suit property or create third party interest therein, it will not only
create complications but also will lead to multiplicity of the
proceedings. In that case the plaintiff will suffer irreparable loss. If
plaintiff is ousted from the suit property by the defendants, then also
she will suffer irreparable loss.
23. In view of all above discussion, I have come to the
conclusion that the balance of convenience lies partly in favour of
plaintiff. Hence I answer point no.2 partly in the affirmative and point
no. 3 partly in favour of plaintiff and proceed to pass the following
order:
ORDER
1. The Notice of Motion no. 4579 of 2019 is partly
allowed.
2. Defendant Nos. 1 to 3, their servants, agents or any
one on their behalf are hereby temporarily restrained
from ousting the plaintiff from the suit property till
decision of the suit.
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3. Defendants Nos.1 to 3 are hereby further
temporarily restrained from parting with the possession
of the suit property in favour of third person till final
disposal of the suit.
4. Defendant nos. 1 to 3 are hereby further restrained
from creating any third party interest in the suit property
till final disposal of this suit.
5. Rest of the prayers in the Notice of Motion are
rejected.
6. Cost of this Notice of Motion will follow in main
cause.
7. Notice of Motion no. 4579 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 19.03.2022 Gr.Mumbai.
Dictated on: 19.03.2022
Typed on : 19.03.2022
Signed on : 28.03.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28.03.2022 AT 5.15 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
19.03.2022
Judgment/Order signed by P.O. on 28.03.2022
Judgment/Order uploaded on 28.03.2022
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