Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M. No.4820/19 (SC No.156/20)
MHCC010131442019
Presented on : 16.12.2019
Registered on : 16.12.2019
Decided on : 20.11.2025
Duration : 5Y 11 M 6 D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO. 4820 OF 2019
IN
SHORT CAUSE SUIT NO. 156 OF 2020
Shri. Pratap Chandrabhan Sharma ... Plaintiff
- Versus -
Shri. Chandan Chittaranjan Sharma
& Ors. … Defendants
CORAM : HER HONOUR JUDGE
SMT. H. C. SHENDE
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 20th NOVEMBER, 2025.
Appearance :-
Mr. Anil S. Kharatmol, advocate for the plaintiff.
Mr. Vedant Tiwari h/f. Joshi, advocate for defendants.
O R D E R
By way of this notice of motion the plaintiffs prayed to pass
order and permanent injunction.
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2. The present notice of motion taken out by the plaintiff with
prayer that, permanent injunction be granted, restraining defendants,
any persons on their behalf, from conducting any construction activities
in the suit property i.e. all than 1/4th joint and undivided right, title and
interest having part and parcel in the property specified in the plaint. So
also asked injunction restraining defendants, any persons from creating
third party right in the suit property till disposal of the suit. The
plaintiff’s contention is that, he has filed suit with the prayer for
injunction and in support of the present notice of motion, he is relying
upon averments made in the plaint and proceeding as part of the
pleadings. So by way of suit it has been contended by the plaintiff that,
he is in use, occupation and possession of the suit property all together
that piece and parcel of land or ground etc. situated in village Tirandaz
at Powai in Mumbai. The suit property is described by him in para No.1
of the plaint as below -
On or towards North by : Property belonging to Smt. Durgadevi
C. Sharma
On or towards South by : Property belonging to C. B. Sharma
On or towards East by : Plot of land belonging to C. B. Sharma
On or towards West by : Plot of land belonging to Smt. Durgadevi
C. Sharma and partly to C. B. Sharma
According to the plaintiff, all that 1/4th joint and
undivided right, title and interest having part of the property described
in the plaint. (hereinafter referred as ‘suit property’).
3. The defendant Nos. 1 and 2 are the developers and
relatives of the plaintiff, so also legal heirs of deceased Chittaranjan
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Chandrbhan Sharma. The defendant Nos. 3 and 4 also developers and
relatives of the plaintiff. The defendant No.5 is the developer appointed
by defendant Nos. 1 to 4 for construction work in the suit property and
defendant No.6 is contractor of defendant Nos. 1 to 5. The plaintiff is in
possession of 1/4th joint and undivided plot bearing Old Survey No.
4(part), 15(part) and 35(part) and New Survey No.42(part) and
41(part) of C. T. S. No.32(part), 32(1 to 35) alongwith structures
standing thereon in the village at Powai, Mumbai. The area
admeasuring approximately 1907.14 sq. meters. The plaintiff is holding
PAN card and Aadhar card showing that, he is in possession of the
property.
4. However, further according to the plaintiff, prior to 1974
the land bearing Old Survey No.4, 15 and 35 and New Survey No. 41
and 42 and having C. T. S. Nos. 32, 32/1 to 32/35 and 64 of village
Tirandaz, Taluka Kurla admeasuring about 7360.70 sq. meters known as
Durga Niwas and adjoining open space belong to Durgadevi
Chandrabhan Sharma. There are several differences and disputes
between the plaintiff’s mother and four sons including plaintiff. So, the
Sole Arbitrator Mr. Kantilal Amritlal Parikh was appointed to resolve
disputes. The sole arbitrator passed an award on 16.08.1974 in respect
of the suit property. By way of award, the property divided with
schedule – ‘A’ to ‘E’ mentioned in the area and plot number belonging to
the brother of the plaintiff and of the plaintiff. Pursuant to that award
dated 16.08.1975, partition was executed among them all. Said
partition is duly registered with the Sub Registrar of Assurances. It is
having serial No.BOM/384 of 1975. The piece and parcel of the land
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equivalent to 1907.14 sq. meters of plot was allotted to the plaintiff as
per schedule – ‘E’ of the award. In the year 2005 the plaintiff executed
unregistered Deed of Confirmation with deceased Chittranjan Sharma
and defendant Nos. 3 and 4 with respect to development of the suit
property as per the condition mentioned in the Deed of Confirmation.
5. Thereafter, in the year 2007 plaintiff has executed Release
Deed having registration No.BDR-3/00121/2008 dated 04.01.2008 with
deceased Chittranjan Sharma and defendant Nos. 3 and 4 in respect to
development of the suit property in terms of the conditions mentioned
in Release Deed dated 06.10.2007. The Release Deed also registered
with Registrar on 04.01.2008. In the year 2013 the plaintiff was having
bunglow called Durga Niwas which is ground plus 1 composite
structure. However, due to collusion between defendant Nos. 3 and 4
with Mumbai Municipal Corporation, the officer of Encroach & Removal
demolished said Durga Niwas occupied by the plaintiff by issuing notice
under Section 354 of Mumbai Municipal Corporation Act. The plaintiff
failed to convince to the Asstt. Commissioner of BMC. The plaintiff
himself demolished the said Durga Niwas as per the drawing taken out
by the Executive Engineer and by way of letter dated 18.09.2015
informed it to the BMC and got acknowledgment No.24508 on the
letter dated 18.09.2015.
6. It is further contention of the plaintiff that, on 24.08.2007
joint meeting was held in between plaintiff and defendant Nos.1 to 4
with respect of development of the suit premises and it was decide that,
building will be construct in the suit premises and defendant Nos. 1 to 4
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will allot 5000 sq. ft flat to the plaintiff in the constructed building and
till the construction, the defendant Nos. 1 to 4 will pay the plaintiff
Rs.1,00,000/- per month from the date of execution of Release Deed.
The said letter having terms signed by he plaintiff on or about
24.08.2007. However till year 2010 defendant Nos. 1 to 4 not started
the construction as agreed by the Deed of Confirmation, Release Deed
and letter dated 24.08.2007. The plaintiff requested the defendants to
execute Memorandum of Understanding. Further as per the plaintiff, he
is in use and occupation of the suit property. He is the owner of the suit
property and having name in the property card. Till December, 2014 the
defendant Nos. 1 to 4 paid Rs.1,00,000/- per month as decided by letter
dated 24.08.2007. On 10.02.2017 the plaintiff executed Agreement for
Conducting on leave and license with Mr. Vinod G. Yadav for area of
2000 sq.ft situated in the suit premises. Later, in the month of May,
2017 defendant Nos. 1 to 4 alongwith 10-15 persons visited to the
property and demolished vehicle cleaning and repairing ramp by giving
threat to the licensee of the plaintiff. The plaintiff approached to the
Bombay City Civil Court against the defendants. Thereafter, on
07.09.2017 the plaintiff’s advocate Mr. Harshad G. Meshram send legal
notice to the defendants for cancellation of Release Deed dated
06.10.2007, Deed of Confirmation dated 29.04.2005 and MOU of the
year 2010. The said Legal notice duly served upon the defendants. On
31.10.2017 the plaintiff had published public notice in news paper in
respect of cancellation of above all of documents. However, in January,
2018 the defendant Nos. 1 to 4 made complaint against the plaintiff
before the police of Powai police station in respect of suit premises. On
03.02.2018 reply was given to said complaint through advocate. The
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plaintiff is in possession of the property. Later the instruction to 15 to 20
persons to came on site were given by the defendant Nos. 1 to 4 . Those
person gave threat to the plaintiff not to enter and use the suit property.
The defendant Nos. 1 to 4 have appointed defendant No.5 for
construction and defendant No.5 has appointed defendant No.6 as their
contractor. In June, 2019 at about 1.00 p.m. again 15 to 20 persons
with defendants enter into suit premises and threatened for
dispossession. The plaintiff immediately went to the police station for
redresses of his grievances but failed to get help. The plaintiff therefore
approached to the court and filed suit (Stamp No. 4992/2018) against
defendant Nos. 1 to 4 for declaration and directions which is pending in
the court. The present suit filed by the plaintiff with the only prayers for
injunction, restraining defendants from creating third party right over
the suit premises. Particularly the property described in the plaint.
7. The defendant Nos. 1 to 4 filed their reply to the notice of
motion and denied all the allegations made by the plaintiff. As per the
defendant Nos. 1 to 4, suit is not maintainable as earlier another suit
was filed by the present plaintiff for same reliefs with respect of same
property which is pending in another court. The present notice of
motion is misconceived and liable to be dismissed with heavy costs. No
case at all made out by the plaintiff to ask any relief. The plaintiff is in
habit of filing false suit. The suit stamp No. 4992/2018 filed by the
plaintiff against defendant Nos.1 to 4 with respect to the same suit
property, similar reliefs with claim filed against the defendants and
pressed for urgent order in December, 2018 by giving notice to the
defendants. However, considering merit of the case, Hon’ble court has
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not given any interim relief to the plaintiff with respect of the same suit
property which is involved in present suit and in the earlier suit. The
reliefs sought in the notice of motion are identical to reliefs claimed in
notice of motion filed in suit No. 4992/2018. The present notice of
motion therefore not maintainable in the eye of law. Till year 1998, the
plaintiff by executing Articles of agreement dated 14.09.1998
transferred his right of the suit property in favour of defendant Nos. 1 to
4 equally against the agreed consideration of constructed area
admeasuring 1500 sq. ft to be given to the plaintiff free of cost. To give
legal effect and confirmation to said transaction, deed of confirmation
dated 29.04.2005 also enter into between the parties. Thereafter, the
present plaintiff has executed registered Release Deed dated 04.01.2008
having No.BDR-3/00121/2008 in respect of suit property and thereby
released his right, title and interest in respect of suit property in favour
of father of defendant nos. 1 and 2 and father of defendant Nos. 3 and
4. Thus, defendant Nos. 1 to 4 are joint owners and possessors of the
suit property. The plaintiff has no right, title and interest left in the suit
property. The plaintiff released his right, title and interest in suit
property in favour of defendant Nos.1 to 4 for consideration of
Rs.30,00,000/- which was already paid to plaintiff before execution of
Release Deed with agreement for area admeasuring 5000 sq.ft on the
top floor of the building proposed to be constructed on the said
property. The said Release Deed is still binding upon the parties. In spite
of the said fact the plaintiff had induced some tenants and occupants
illegally without any prior permission of the defendants in the suit
premises and said illegal occupant Mr. Vinod Yadav also filed suit
No.1715/2017 against the present plaintiff and defendant Nos. 1 to 3 in
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City Civil Court and the defendants are dragged unnecessarily. The
plaintiff in collusion with Mr. Yadav has filed said suit and trying to
claim right in respect of some area of the property. In fact, the plaintiff
has also executed Power of Attorney dated 04.01.2008 in favour of
defendant Nos. 1 to 4. Defendant Nos. 1 to 4 are in occupation of the
property. They have executed Leave and License agreement dated
03.12.2018 an given area admeasuring 3259.41 sq.meters to defendant
No.6 for a period of 11 months. The plaintiff do not have right in the
property. The suit and notice of motion needs to be dismissed.
8. The defendant No.6 also filed his reply to the notice of
motion. As per defendant No.6, the plaintiff has failed to make out any
case or claim against defendant No.6. There is no privity of contract in
between the plaintiff and defendant No.6. Notice of motion is not
tenable against defendant No.6. The documents makes it clear that,
defendant Nos. 1 to 4 are joint owners and in occupation of the suit
property and in the capacity of owner, defendant Nos. 1 to 4 by
executing Leave and License agreement dated 03.12.2018 with
defendant No.6 for the area admeasuring 3259.41 sq.ft out of larger
suit property. Area admeasuring 10,000 sq. ft out of licensed area is
given to one company namely Shree Silwant. On the basis of legal
document, he is not in possession of the licensed area . The plaintiff has
no right in the suit property and suit and notice of motion taken out by
the plaintiff therefore needs to be dismissed with costs.
9. Heard both sides at length. Perused the record.
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10. Ld. Advocate for the plaintiff submitted that, he had filed
previous suit No.4992/2018 in another court, but the prayer of
injunction was not maintainable, so it was withdrawn and there is no
injunction in that matter granted by that court. The Ld. Advocate for
defendant Nos. 1 to 4 vehemently argued that, the said stamp suit
No.1992/2018 filed by the same plaintiff in reference of same suit
property ad-interim relief wass pressed for but no order passed in
favour of the plaintiff. Then by adding the party i.e. defendant No.6 in
the present suit the plaintiff is asking injunction on the same facts in
respect of same suit property and the suit itself is not maintainable. The
notice of motion deserved no merit, it needs to be rejected.
11. On gone through arguments on the rival pleadings, I have
gone through record minutely. My Ld. Predecessor by way of order
dated 15.06.2019 pleased to reject prayer ad-interim reliefs made by
the plaintiff. Serious consideration was given to the fact that the
plaintiff has filed one suit prior to this suit. It was not registered by the
present plaintiff. In the previous suit the plaintiff failed to get any order
of injunction and the plaintiff without paying court fees in the earlier
suit pressing the same prayer before this court. The settled principal of
law that party claiming equity must do equity. It is accepted from the
plaintiff to deposit court fees in previous suit to get it register and
interest of filing the suit he needs to amend previous suit to show
subsequent events.
12. Further Ld. Advocate for the defendants, the plaintiff by
way of Release Deed dated 04.01.2008 already surrendered his rights
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and interest, so now he cannot claim same right. He has already got the
amount of Rs.30,00,000/-. So now the plaintiff did not have any right
in the property and no injunction can be granted. Not only plaintiff of
the present matter but the defendants are also relying upon the same
Release Deed which allegedly executed in between the plaintiff and
defendants on 06.10.2007. According to the plaintiff by way of this
Deed, the defendants agreed to pay Rs.30,00,000/- so also
Rs.1,00,000/- each per month. The Ld. Advocate for the plaintiff also
pointed out that, one condition is there in the Release Deed that, the
defendant shall handover the top floor having admeasuring 5000 sq. ft,
fully constructed with all amenities within 30 months from the date of
commencement of the construction to the plaintiff. This condition
according to the plaintiff not been complied with and therefore he gave
information about revocation also.
13. In addition to these rival claims, the another important fact
which come before court by way of arguments and pleadings is the third
suit bearing No.1715/2017 filed by the Mr. Yadav against the present
plaintiff and defendants wherein Mr. Yadav claimed himself to be a
licensee of the same premises and the said suit is also pending. In fact,
the said fact argued and accepted by the Ld. Advocate for the present
plaintiff also. The Ld. Advocate for the defendants further informed at
bar that, the Ld. Advocate of present plaintiff of the present suit is
Advocate of Mr. Yadav in that another suit No.1715/2017. This shows
that, the plaintiff also creating right in property with the defendants.
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14. In the respectful opinion of this court, the parties if
admittedly entered into agreement including Deed of Confirmation,
Release Deed and is relying upon the same, then the parties are not only
having rights but liabilities also which needs to be carried out and to be
complied by them. The record however suggesting that, the
construction was not completed and the liability not full filled by the
other side i.e. the defendants. The defendant gave Leave and License as
that of the plaintiff. So everybody is acting as per their own wish. The
first and second suit admittedly filed by the plaintiff. The third suit is
filed by Mr. Yadav which is in respect of same premises. The Deed/
agreement entered into between the parties regarding development of
the property under is questioned. If the development process is still
going on, if the defendants are in possession of premises for that
development work, the agreement executed by the plaintiff by accepting
the considerable amount from the defendants under the Deeds executed
by them, then the plaintiff at this stage cannot ask to restrain the
defendants from proceeding with the construction work. However
considering the today’s situation filing of different suits by the plaintiff
and filing third suit by Mr. Yadav in which the Ld. Advocate for present
plaintiff acting as advocate of Mr. Yadav, then the court find it necessary
that, there is need of protection and preservation of the suit property at
least till final decision of the suit. Parties needs to be maintain status
quo by not creating further interest in the property by way of any Deed
or the transfer of it in any manner. Admittedly, the rival claims are made
by the parties. For the purpose of proper adjudication, the trial with
cogent evidence is required. It will certainly take some time, so the
court is of firm opinion that no prima facie case is made out by the
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plaintiff for order to restrain the defendants from doing any
construction work. It prima facie reveals from record that, the plaintiff
has accepted considerable amount against the Deed then balance of
convenience also not lies in his favour. The amount if accepted by the
plaintiff by entering in deed, then no prejudice will caused to the
plaintiff if injunction as asked by the plaintiff to restrain the defendants
from doing construction work or ¼th joint and undivided right, title and
interest in the suit property is not granted.
15. However, as mentioned above and particularly on the
backdrop of these various litigations, there is likelihood of coming
different judgment from different courts for same premises, this court
therefore is of the view that, there is need to pass order of injunction
limited to the extent of not to create third party right, interest in the
suit property till final disposal of the suit by the defendants in any
manner and parties to maintain status quo to preserve the suit property
till final adjudication.
16. Hence, for the reasons mentioned above, the court in
present circumstances proceed to pass the following order :-
O R D E R
1. Notice of motion No.4820/2019 in suit No.156/2020 is
partly allowed.
2. The defendants or any person acting for and on behalf of
defendants are hereby restrain from creating third party
right, interest in any manner in the suit property till final
disposal of the suit.
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3. The parties to maintain status quo till final disposal of the
suit.
4. The findings made in the notice of motion are prima facie
and it will not influenced or affect the trial or final order of
this matter.
5. Proceeding of notice of motion No.4820/2019 in suit
No.156/2020 is closed.
Date : 20.11.2025 (H. C. Shende )
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 20.11.2025
Transcribed on : 21.11.2025
Checked & Signed on : 24.11.2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
26.11.2025 at 4.20 pm ( Samruddhi Jadhav)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt.H. C. Shende (C.R.No.65)
Date of Pronouncement of
JUDGMENT/ORDER
20.11.2025
JUDGMENT/ORDER signed by
P.O.on
24.11.2025
JUDGMENT/ORDER uploaded on 26.11.2025
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