Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 4808-19 in S.C.SUIT no.354-20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 4808 OF 2019
(CNR no. MHCC01-013125-2019)
IN
SHORT CAUSE SUIT NO. 354 OF 2020
(CNR no. MHCC01-011686-2019)
1. Mr. Pravin Hanumant Shirke
Age : 50 years
]
]
2. Mrs. Latatayi Pravin Shirke
Age : 45 years
Both residing at Room No.5, Tarachand Niwas,
Shivaji Nagar, Tembipada Road,
Bhandup (West), Mumbai – 78.
]
]
]
]
]...
Plaintiffs
Versus
Mrs. Vidya Ramdas Chavan
Room No.3, Police Quarter (New),
Ambarnath.
]
]
]...
Defendant
Appearances:-
Ld. Advocate Ms. Shama N. Ghotekar for the Plaintiffs.
Ld. Advocate Mr. Bhushan Ulhas Deshmukh for Defendant.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 5th March, 2020.
O R A L O R D E R
1. The following 2 prayers are made in this Notice of
Motion :
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2 NM no. 4808-19 in S.C.SUIT no.354-20
(a) That, pending the hearing and final disposal inspection
of the suit, the Court Commissioner or some other fit
and proper person be appointed for the inspection of
the suit property under Order XXVI Rule 9 of the
Code of Civil Procedure.
(b) That pending the hearing and final disposal of the suit
the Defendant, her servants and Agents be restrained
from dealing with disposing of or alienations,
encumbering, creating of the Third party interest in
the suit property described in the plaint.
2. According to the plaintiff, the suit premises i.e. Room
No.5, Tarachand Niwas, Shivaji Nagar, Tembipada Road, Bhandup
West, Mumbai 78 (hereinafter “Suit Premises”) is ancestral property
of plaintiffs and defendant and therefore, plaintiff no.1 has half
share in the suit premises. It is alleged in the plaint that despite
knowing the above facts, the defendant is trying to create third
party interest in the suit premises and she is not allowing plaintiff
no. 2 to take her belongings kept in the suit premises. Therefore,
the above prayers are made.
3. The defendant has contested the Notice of Motion by
filing reply and contending as under :
The allegations are totally false. This Court has no
jurisdiction to decide issue of tenancy because the suit premises is
tenanted premises. The defendant has become owner of the suit
premises by way of sale thereof in her favour by her mother
Shankuntala Shirke. Therefore, the Notice of Motion be dismissed.
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3 NM no. 4808-19 in S.C.SUIT no.354-20
4. Considering rival contentions, following points arise for
my determination. Findings on those points for the reasons
mentioned thereunder are as follows:-
Sr.
No. POINTS FINDINGS
1. Whether plaintiffs prove that
plaintiff no.1 has share in the suit
premises?
In the affirmative.
2. Whether plaintiffs prove
prima
facie, balance of convenience and
irreparable loss in their favour?
In the affirmative.
3. What order? Notice of Motion is
partly allowed.
5. The plaintiffs are claimed half share of plaintiff no.1 in
the suit premises on the ground that the suit premises is an
ancestral property of the parties and being brothers and sisters. The
plaintiff no.1 and defendant have equal share in the suit premises.
The defendant has come up with the case that her mother was
tenant and she sold the suit premises to her for valuable
consideration of Rs.5,00,000/- (Rupees Five Lakhs only) and
thereafter, the rent receipts, electricity bills, ration card were
mutated in her name. She has filed the documents in support of her
above allegations in the form of rent receipts, ration card, Aadhaar
card and electricity bills. All these documents support her case that
she is in occupation of the suit premises. Even though, she
prima
facie proves her occupation, she has not tendered any registered
document of sale whereby the title was transferred in her name. In
other words, the defendant will have to prove that mother
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4 NM no. 4808-19 in S.C.SUIT no.354-20
Shakuntala Bai was exclusive owner/tenant of the suit premises and
she transferred the title in favour of the defendant by executing
legal document. In absence of such document, it can be safely
inferred at this
prima facie stage is that the plaintiff has half share
in the suit premises.
6. The plaintiff have prayed for appointment of Court
Commissioner to visit the suit premises for giving opportunity to
plaintiff no.2 to get back her
Stridhan property kept in the suit
premises. However, it is case of plaintiff that soon after year 2001,
the plaintiffs are residing seperately at Koparkhairane. It means, the
plaintiffs are not staying in the suit premises for last 18 to 19 years.
In that background, it is difficult to believe that the plaintiff no. 1
has kept valuable articles and other articles in the suit premises for
such a long period. Therefore, the prayer for appointment of Court
Commissioner to visit the suit premises need not to be granted.
However, the defendant will have to be restrained from creating
third party interest in the suit property till final disposal of the suit.
Hence, following order:
ORDER
1. Notice of Motion No. 4808 of 2019 is partly allowed.
2. Prayer clause (a) in the Notice of Motion for appointment of
Court Commissioner is rejected.
3. Prayer clause (b) in the Notice of Motion restraining defendant
from disposing of or alienating, encumbering, creating third
party interest in the suit premises is granted till final disposal
of the suit.
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5 NM no. 4808-19 in S.C.SUIT no.354-20
4. Costs in cause.
sd/-
(C. V. Marathe)
Judge,
Date : 05.03.2020. City Civil Court, Gr. Mumbai.
Dictated on : 05.03.2020
Transcribed on : 05.03.2020
Signed by HHJ on : 09.03.2020
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6 NM no. 4808-19 in S.C.SUIT no.354-20
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 11.03.2020 at 1.52 p.m.
NAME OF STENOGRAPHER : Mrs. G. P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
05/03/2020
JUDGMENT/ORDER signed by
P.O. on
09/03/2020
JUDGMENT/ORDER uploaded
on
11/03/2020
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