Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M No.4720-2019 in
Suit No.2971-2019
MHCC010129062019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.4720 OF 2019
IN
SUIT NO. 2971 OF 2019
Mrs. Nazima D/o. Sultan Pradhan ]
W/o. Abdul Rasool Navroz ]
Age:- 58 years, Occupation:- Housewife ]
Address at 111, Persepolis Apartment, ]
Cuffe Parade, Colaba, Mumbai- 400 005. ] … Plaintiff.
Versus
1. Mumtaz S. Pradhan ]
At present residing at 1/453, Zapa Bar, ]
Small Daman, 396210, Daman. ]
2. Nazim Shamsuddin Alias Sultan Pradhan]
At present residing at 1/456, Zapa Bar, ]
Small Daman- 396210, Daman ] ...Defendants.
Appearances :-
Learned advocate Mr. Nasikwala for plaintiff.
None present for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 22.11.2024
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O R D E R
The plaintiff has taken out present notice of motion for
claiming the reliefs inter alia;
a) To appoint Court Receiver under Order 40 Rule 1 of Civil
Procedure Code with all powers and directions to him to enter
into an agreement of agency with defendant No.1 by further
directing to recover reasonable monthly compensation
approximately Rs. 8000/- per month from 12th June, 2017 at the
present market value in respect of the suit premises from the
defendant No.1;
b) To grant temporary mandatory injunction and direct the
defendant No.1 to hand over one of the rooms of the suit
premises to the plaintiff during the pendency of the present suit;
c) To grant temporary injunction by restraining the defendant
No.1, his servant, agents or anyone claiming through or under
him from disposing of and/or parting with the possession of the
suit premises or any part thereof or to create any third party right
in respect of the suit premises;
d) To grant interim or ad-interim reliefs in terms of prayers
clause (a), (b) and (c) above;
e) To provide the Costs of this notice of motion;
f) To grant such other and further orders and relief as may be
expedient and/or necessary.
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2. In affidavit in support, it is contended that the plaintiff has
filed the suit for partition about the Room No. 6 and 7, Ground Floor,
Building No.3, Karimabad Co-operative Housing Society, Imamwada
Road, Mumbai - 400009 (hereinafter referred as ‘the suit premises’). It
is contended that the deceased father namely Sultan Mohammed
Pradhan of the plaintiff and defendants No.1 and 2 was the owner of
the suit premises. He died intestate and the plaintiff and defendants are
his legal heirs as the wife of deceased Sultan died earlier, in the year
2015. Heirship certificate was issued by the Competent Authority in
favour of the deceased Sultan, plaintiff and the defendants after demise
of mother of the plaintiff. It is further contended that the plaintiff, upon
the death of her father sent letters dated 6th November 2017, 30th April
2018, 28th November 2018, 20th December 2018 and 25th March 2019
respectively to the Karimabad Housing Society, Imamwada, Mumbai -
400 009, and thereby requested the society not to transfer the suit
premises in the name of anyone, without the consent of plaintiff as well
as defendants. It is further contention of the plaintiff that the defendant
No.2 through his Advocate sent letters dated 5th December 2017 and 3rd
January 2018 to the defendant No.1 and copy to the said society and JJ
Marg Police Station by mentioning that the suit premises stands in the
name of Sultan Mohammed Pradhan and he being one of the heirs of
the deceased Sultan Mohammed Pradhan is having share therein. It is
further contended that the defendant No.2 has given reason in the said
letter that he desires to stay for one week in one of the rooms whenever
he will come to Mumbai. He requested to the Defendant No.1 to shift in
one of the rooms of the suit premises by closing the interconnected door
for the duration of his stay for a week so that he can occupy peacefully
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one of the rooms in the suit premises without any disturbance and
interference.
3. The plaintiff further contended that the Defendant No.1
through his Advocate sent a reply dated 13th January 2018, though
admitted the ownership of the suit premises of Sultan Mohammed
Pradhan by stating that the Defendant No.2 has never stayed in the suit
premises and alleged that he was the only person looking after the late
father Sultan Mohammed Pradhan and denied that at any time, key of
the suit premises was with the defendant No.2 and therefore the
question having second key of the suit premises with him does not arise.
The defendant No.1 also mentioned therein that he is in exclusive
possession of the suit premises and stated that there was no talking
term with the defendant No.2 and there was a quarrel with him under
one pretext or other and therefore it was alleged that closing
interconnected door and permitting him to stay in one of the rooms
does not arise by also stating that the plaintiff is not entitled to claim
any right in respect of the suit premises by saying that the late father
Sultan Mohammed Pradhan is non-Christian Inhabitant of Daman and
therefore as per law prevailing in Daman the male excludes Female
hence plaintiff has no right of inheritance in the suit premises.
4. According to the plaintiff, she has made applications under
section 22(2) of the Maharashtra Co-operative Society Act., before
Assistant Registrar of Co-operative Society B-Ward Mumbai for the
membership of the suit premises from the name of her deceased father
to the name of the plaintiff , defendant No.1 and 2 and the Learned
Assistant Registrar vide order passed on 9th August, 2018 in the
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Appeal/Application Nos. 811 of 2018 and 812 of 2018, allowed the
Applications under section 22(2) of the Maharashtra Co-operative
Society Act by observing that the Plaintiff and the Defendant Nos.1 and
2 are entitled to the membership of the premises being Room No.6 and
7 of the Karimabad Co-operative Housing Society Ltd. Thus, the
plaintiff, the defendant Nos.1 and 2 have become the members of the
suit premises of the Karimabad Co-operative Housing Society. But the
Society failed to implement above both the orders. As a result, on an
Application under section 79(2) under the Maharashtra Co-operative
Society Act for implementation of both the orders, the Assistant
Registrar has passed an order dated 5th August 2019 whereby
appointing Shri. Dinant Kale, Government Certified Auditor for taking
the action for giving membership of the deceased of Sultan Mohammed
Pradhan in respect of the suit premises to implement the order dated 5th
August 2018 by forwarding it to the Chairman of the Secretary of
Karimabad Co-operative Housing Society and defendant No.1 and 2 and
plaintiff.
5. It is also contended that the original Share Certificate of the
suit premises is lying with defendant No.1 and who did not handover
share certificate to the said Society and therefore, Share Certificate of
the suit premise is not issued in the name of the plaintiff and the
defendant No.1 and 2 jointly but to see that the maintenance charges
are paid in respect of the suit premises. The plaintiff also paid transfer
and entrance fees of the suit premises under two receipts of Rs. 800/-
each vide receipt No. 2359 and 2360 whereon Karimabad Co-operative
Housing Society Ltd., issued the receipt jointly in the name of plaintiff
and the defendant No.1 and 2. It is also contended that the plaintiff
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thereafter paid the maintenance charges of the suit premises vide two
receipts 2366 and 2367 for Rs. 1554/- each though the said receipt
issued in the joint name of the plaintiff and the defendant No.1 and 2
but specifically endorsement made thereon that the amount is paid by
the plaintiff only.
6. It is the contention of the plaintiff that the defendant No.1
permanently stayed Daman, but he by allowing his children in the suit
premises, his children are using and occupying the suit premises which
consists of two Rooms No. 6 and 7 self-contained with separate main
entrance and inter connected door. According to the plaintiff, the
defendant No.1 is not inclined to allow the plaintiff or defendant No.2
to occupy any of the rooms of the suit premises though it is feasible and
convenient for being used and occupied separately and conveniently
without any disturbance. But the Defendant No.1 is adamant and does
not allow the Plaintiff and Defendant No.2 to use one of the rooms of
the suit premises by occupying one room by closing inter connected
door. It is also contended that the defendant No.1 is in exclusive use,
occupation and possession of the suit premises and keeping control
thereof under his lock and key, as a result plaintiff and defendant No.2
suffers immensely. Hence, this motion.
7. The defendants have failed to file their reply. Hence, this
notice of motion proceeded further without reply.
8. Perused the notice of motion, and record. Heard learned
advocate for plaintiff.
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9. It is not disputed that the suit premises is initially owned by
father of the plaintiff and defendants and after his demise, being legal
heirs, the plaintiff and defendants are entitled for their respective shares
in the suit premises. The heirship certificate placed on record shows
that Sultan Mohammed Pradhan, the plaintiff and the defendants are
legal heir of deceased Smt. Jeracanu Ramjan, who was mother of the
plaintiff and defendants. It appears that the plaintiff has made an
application to the society requesting not to transfer the suit premises in
the name of any person without the consent of all the legal heirs of
Sultan Mohammed Pradhan. It further appears that the plaintiff has also
raised objection with the society in respect of redevelopment of the
room number six and seven without her permission. The documents
filed on record indicate that the defendant number one has denied the
right of plaintiff as per the succession act prevailing in Daman. The
plaintiff has filed application before the Assistant Registrar for getting
membership of the society in respect of the suit premises and vide order
dated 9th August 2018, the Assistant registrar has accepted the joint
membership of the plaintiff and the defendants. The plaintiff was
directed to move an application for joint membership to the society in
respect of both the rooms. But the society failed to comply the order
passed by the Assistant Registrar. Therefore, the plaintiff and the
defendant No.2 have filed application before the Assistant Registrar. It is
specifically mentioned in the order dated 5th August 2019 that the
Assistant Register has appointed one Auditor for implementation and
execution of the order passed by him on 9th August 2018, in respect of
accepting the joint membership of plaintiff and defendants in respect of
the suit premises.
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10. The present suit is filed by the plaintiff for partition. She is
claiming her share in the property of her parents. The defendant No.1
has not filed any reply to the present notice of motion. According to the
plaintiff, the defendant No.1 is in occupation, use and possession of the
suit premises. It is not disputed that the plaintiff and defendants are the
siblings. All the legal heirs of the deceased Sultan are having their
respective rights in the suit premises. Despite of the same, it appears
that the defendant No.1 is enjoying the suit premises alone.
11. It further appears that the despite of the orders passed by
the Assistant Registrar in favour of the plaintiff and defendant No.2 the
society failed to record Share Certificate in the joint name of all the
legal heirs of deceased Sultan. By taking the benefit of such situation
there is possibility that the defendant No.1 may part of possession of the
suit premises or create any third party right or interest. If the defendant
No.1 will create any charge on the property, serious prejudice will be
caused to the valuable rights of plaintiff as well as defendant No.2.
Under such circumstances and till the decision of this suit, the suit
property needs to be protect and preserve to avoid the multiplicity of
proceedings between the parties. As the defendant No.1 as well as the
society do not follow the order passed by the Assistant Registrar, thus, I
am of the view that the plaintiff has successfully established prima facie
case and balance of convenience in her favour. In the result, following
order is passed-
ORDER
1. The Notice of Motion No. 4720 of 2019 is hereby allowed
in terms of prayer clause (c) only.
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2. No order as to costs.
3. The Notice of Motion No. 4720 of 2019 stands disposed of
accordingly.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Date : 22.11.2024 C.R. No.03
Dictation typed on :
Checked & Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
24.01.2025 at 5.30 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 22.11.2024
Judgment/Order checked & signed by P.O.
on
24.01.2025
Judgment/Order uploaded on 24.01.2025
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