Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.4872 OF 2019
IN
S.C.SUIT NO.2684 OF 2019
(CNR NO. MHCC010-13285-2019)
1. Sachin Sadanand Jawkar ]
2. Prashant Sadanand Jawkar ]
3. Prerna Sadanand Jawkar ]
@ Prerna Mandir Cardoz ].. Plaintiffs
V/s.
1. The State of Maharashtra ]
Through the Chief Executive Engineer ]
of MHADA ]
2. The Executive Engineer (E-1 Div) ]
3. M/s. One India Construction Pvt.Ltd. ]
4. Shri Dilip Laxman Jawkar ]..Defendants
Advocate Nitin E. Rakshe for plaintiff.
Advocate Bhakti Valvalkar for defendant No.4
Advocate Pathak h/f Adv. Kandekar for MHADA.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 3rd JANUARY 2023
ORAL ORDER
The plaintiffs have taken out his Notice of Motion claiming
interim reliefs in terms of prayer clause (a) to declare that the
Agreement dtd.21.11.2014 vide registration bearing No.BBE-
1/10739/2014 is null and void, illegal, unlawful inoperative,
unenforceable in law, (b) seeks permanent injunction restraining the
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defendant No.1 to 4 from creating any third party right or dealing with
and/or encumbering the suit premises and/or permanent alternate
accommodation given instead of the suit premises, (d) seeks temporary
injunction from creating any third party right, (e) seeks temporary
injunction restraining the defendant No.1, 2 and 3 their agents, servants
or any other person from handing over the possession to the defendant
No.4 and depriving the possession to the plaintiffs forcibly, fraudulently
and without due process of law from the suit premises and/or the
permanent alternate accommodation (f) to direct the defendant No.2
and 3 to withhold on the possession of the suit premises and to appoint
the defendant No.2 and 3 or any other person as the court receiver in
respect of suit premises and (g) to direct the defendant No.2 and 3 to
disclose the rent received for the suit premises and to deposit the same
in this Court and to distribute equally among the legal heirs.
2. The plaintiffs have filed affidavit in support of Notice of
Motion wherein stated that the plaintiffs have filed suit for the reliefs
more particularly stated in the plaint.
3. Brief facts of the plaintiff’s case are as under:
(i) The plaintiffs have contended that suit property situate at
Room No.45 on 4th floor, at Jamshed Building which is ceased building
being and lying at Shivdas Chapsi Marg, Noorbaug Naka, Mumbai-400
009. For the sake of brevity, hereinafter referred to as “Suit Premises”.
Suit property is their ancestral property. The suit building will be
redeveloped by the owner cum developer i.e. Defendant No.4 and
subsequently, the permanent alternate accommodation is to be allotted
to the plaintiffs late mother at the instance of Defendant No.4 or to any
third person/persons without the consent of the plaintiffs from the
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name of plaintiffs’ deceased mother Smt.Satyavati Laxman Jawkar.
There are various documents in the name of Late Smt. Satyvati Laxman
Jawkar which shows that she was in occupation and possession of said
suit premises. Defendant No.4 is the real brother of plaintiff’s father.
Defendant Nos.1 to 3 are Government Authorities.
(ii) The plaintiffs have further contended that plaintiffs at
present has been residing at Room No.3, Koldongari Co-operative
Housing Society, Parsiwada, Sahar Road, Andheri (E) since last several
years. Earlier he was residing in the suit premises. Suit premises was
purchased by his father from one Parsi named as Bahadurjji Deolali
Santorium, and subsequently one Baratanwala. Initially rent receipt of
the suit premises was in the name of Mr.Sakharam Jawkar and
subsequently, it was transferred in the name of their mother in the year
1983. His father Late Laxman Jawkar died in the year 1957. Defendant
No.4 and his wife used to harass his mother inspite of living with her in
the suit premises. Defendant No.4 threatened her for dire consequences,
therefore, she made complaint to the police.
(iii) The plaintiffs have further contended that their mother
expired on 22.08.2012. She was not capable of understanding the
nature of transactions. However, she had executed the affidavit long
back with respect to said ancestral property. Since it is ancestral
property, all sisters and plaintiffs are equally entitled to 1/5th undivided
share in the suit premises. However, Defendant No.4 is trying to grab
said ancestral property alone by misleading the authorities and wanted
to transfer the same in his own name without giving proper share to
other legal heirs. Defendant No.4 may join hand with defendant Nos.2
and 3 and other defendants for receiving cheques of temporary
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accommodation in his name in lieu of the suit premises. Therefore, it is
necessary to grant interim relief in terms of prayer clauses (a), (b), (d),
(e), (f), (g) of Notice of Motion.
4. Defendant No.4 has filed affidavit-in-reply to this Notice of
Motion and objected this Notice of Motion. Defendant No.4 has
submitted that averments made in the Written Statement be considered
as reply to this Notice of Motion. Defendant No.4 has contended that
prior to filing of the suit, there is no correspondence exchange between
the parties. The real dispute in this suit is about the claiming of tenancy
right and landlord who is also joined as party in this suit who is
redeveloping the property. He entered into agreement with him for
providing permanent alternate accommodation in lieu of the suit
premises. Defendant No.4 was residing with his tenant mother and
looking after his mother. His deceased mother has already executed in
writing that except defendant No.4 nobody has right as he was looking
after her. Therefore, the landlord has accepted this defendant as tenant.
Therefore, there is no challenge to the said agreement by the landlord.
The plaintiffs cannot claim any relief on the basis of legal heir without
providing their title and right as tenant. This Court has no jurisdiction
to entertain and try this suit under the provisions of The Rent Act. The
plaintiffs are not tenant of the suit premises as they never resided in the
suit premises. Defendant No.4 has contended that he was residing in
the suit premises and he has no other residential premises therefore, the
landlord has paid him the rent for obtaining alternate accommodation
till redevelopment is completed. Therefore, the plaintiffs are not
entitled to claim interim relief sought by them. Hence, present Notice of
Motion deserves to be dismissed.
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5. Other Defendants have not filed reply.
6. Heard the learned Advocate Mr. Rakshe for the plaintiff’s,
the learned Advocate Bhakti Valvalkar for defendant No.4 and learned
Advocate Pathak h/f Adv. Kandekar for MHADA.
7. Considering the plaint, Notice of Motion, Documents on
record 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 interim reliefs in terms of prayer
clauses (a), (b), (d), (e), (f) and (g) of the
Notice of Motion deserves to be granted to
the plaintiffs?
In the Negative
2 What order? ….As per final order
R E A S O N S
AS TO POINT NO.1 -:
8. Perused plaint, affidavit and reply in support of Notice of
Motion. Heard the learned Advocate for the plaintiff at length. He
submitted that he has filed the suit for declaration and injunction. By
this Notice of Motion, he is seeking declaration that the Agreement
dtd.21.11.2014 vide registration bearing No.BBE-1/10739/2014 is null
and void, illegal, unlawful inoperative, unenforceable in law as having
no value in eyes of law and the same are liable to be cancelled and a
fresh agreement for permanent alternate accommodation must be
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entered into with all heirs of deceased grandmother by defendant No.3.
9. He further submitted that Satyavati Jawkar, grandmother
of the plaintiffs was the original tenant of the suit premises. The
plaintiffs and defendant No.4 are the legal heirs of deceased Satyavati
Jawkar. Therefore, plaintiffs are the legal heirs and they are entitled to
get 1/5th share in the permanent alternate accommodation and 1/5th
share in the suit premises. Therefore, they are also having share in the
permanent alternate accommodation which is going to be provided in
lieu of the suit premises. He further submitted that the defendant No.2
and 3 have no any right to transfer the suit premises to the defendant
No.4. The defendant No.4 with the help of defendant No.1 to 3 trying to
grab the permanent alternate accommodation, therefore, prayed for
grant the Notice of Motion.
10. The learned Advocate appeared on behalf of defendant
No.4 vehemently argued that the plaintiffs father filed another suit
bearing L.C. Suit No.3027/2014 against the defendant for relief to
declare the joint name of the plaintiffs with defendant No.4 and the
plaintiffs’ father and thereafter the plaintiffs are eligible for permanent
alternate accommodation and also seeking relief against defendant
Nos.3, 4, and 5 in that suit from allotting permanent alternate
accommodation or cheques to the defendant No.4. He further argued
that the plaintiff suppressed the material facts that plaintiffs have filed
the suit No.3027/2014 and the relief claimed by the plaintiffs’ father in
that suit was rejected. Therefore, the present suit is not maintainable.
He further argued that the plaintiffs’ suit is not within limitation as the
defendant filed his written statement in the previous suit in the year
2015. The plaintiffs have not filed the suit within limitation. In such
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circumstances, the plaintiffs are not entitled for relief of injunction.
11. Ld. Advocate for defendant No.4 further argued that
plaintiffs and their father were not residing alongwith the deceased
Satyavati Jawkar. On the contrary, the plaintiffs admitted in their plaint,
para 5 that the father of the plaintiff’s got married in the year 1974 and
thereafter he got shifted to Andheri and settled over there. Since then,
the plaintiffs have no concerned with the suit property and they were
not tenant of the suit property.
12. I have gone through Notice of Motion, averments made in
plaint, averments made in the Written Statement and documents filed
with the plaint and Written Statement.
13. Perusing the record, it appears that the name of Satyavati
Jawkar shown as the tenant in the suit premises and she was getting
permanent alternate accommodation in lieu of suit premises. The
plaintiffs have not placed on record any document to show that they
were residing alongwith Satyavati Jawkar at the time of her death. The
plaintiffs further relied on the complaint lodged by the Satyavati Jawkar
on 28.12.2003 and dated 10.04.2004 against the defendant No.4.
However, it appears that Satyavati Jawkar died on 22.08.2012. These
complaints were filed much prior to her death. But, thereafter, it
appears that Satyavati Jawkar was residing alongwith defendant No.4
and her family members. The plaintiffs also admitted this fact in their
pleadings. The defendant No.4 filed the copy of agreement executed in
between him and defendant No.3, Developer for providing alternate
accommodation. He also filed Affidavit cum Declaration executed by the
deceased Satyavati Jawkar in favour of defendant No.4 on 11.08.2012
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prior to her death for transfer of tenancy of suit premises.
14. The defendant has placed the documents on record, it
appears that the defendant No.4 was residing alongwith deceased
Satyavati Jawkar, thereafter the name of defendant No.4 entered in the
suit premises. The copy of Ration Card produced by the defendant
dated 07.01.2010 which shows that he is also residing with Satyavati
Jawkar. The Affidavit cum declaration also indicates the residence of
defendant No.4 in the suit premises. It appears that he is and was
residing alongwith Satyavati Jawkar and the deceased Satyavati Jawkar
executed Affidavit cum declaration for transfer of tenancy in favour of
defendant No.4. With the help of those documents, the defendant No.3
allotted the alternate accommodation to the defendant No.4. The
plaintiffs claiming their 1/5th share in the suit property as ancestral
property but there is no any documentary evidence to show that the suit
property is ancestral property of the Satyavati Jawkar.
15. As per the record, it appears that Satyavati Jawkar was the
tenant of the suit premises and she is the tenant. Her tenancy
transferred by affidavit cum declaration in favour of defendant No.4
and thereafter the authority of defendant No.1 to 3 allotted the
permanent alternate accommodation to the defendant No.4 in the year
2014. The plaintiffs claiming the agreement executed by the defendant
No.3 with the defendant No.4 is null and void, illegal but unless and
until the document is declared as null and void. At this juncture, it is
difficult to come to the conclusion that agreement is illegal, null and
void. Prima-facie it appears that, the defendant No.4 was residing
alongwith Satyavati Jawkar and she herself executed affidavit cum
declaration and transferred the tenancy right to the defendant No.4. As
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per the declaration the defendant No.3 allotted the alternate
accommodation to the defendants. The plaintiffs also seeking
declaration that the defendant be restrained by order of permanent
injunction from creating third party right but there is no any
documentary evidence on record to come to the conclusion that the
defendant No.4 is trying to make third party interest of the suit
premises.
16. The plaintiffs’ Advocate submitted that the plaintiffs are the
legal heirs of deceased Satyavati Jawkar and further submitted that,
whether there is conflict between Hindu Succession Act and
Maharashtra Rent Control Act therefore, there appears to be no conflict
in the two provisions. The Hindu Succession Act amends and codifies
the law relating to the succession amongst the Hindus and therefore the
overriding effect given to it by Section 4(1)(b) over other law in force
immediately before commencement of the Hindu Succession Act
relating to the intestate succession amongst Hindus, and drawn my
attention towards Law Web Unique Legal Database, that the words in
Section 5(11)(c)(ii) have been incorporated to meet a situation where
there are more than one heir. The words “as may be decided in default
of agreement by the Court’’ appear in the context of there being no
member of the family residing with the tenant at the time of his death
and there is no agreement between the heirs as to who should succeed
to the tenancy rights. If there is no agreement, then, the Court has to
decide who can be treated as a tenant.
17. But in the case in hand, it appears that the deceased tenant
Satyavati Jawkar executed affidavit cum declaration and her tenancy
right transfer to the defendant No.4. Therefore, the argument advanced
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by the learned Advocate for the plaintiffs is no much more fruitful to the
present set of facts.
18. The plaintiffs have to prove that they are the tenant of the
suit premises and they have to prove the agreement executed by the
defendant No.3 in favour of the defendant No.4 is illegal, null and void
till then the plaintiffs have no right to seek injunction against the
defendant No.4 who is in possession of the suit property during the life
time of the deceased Satyavati Jawkar and after her death.
19. Admittedly, the plaintiffs and their father were not residing
alongwith the deceased Satyavati Jawkar after 1974 of the plaintiffs
father got married and shifted at the resident in the given address. It
indicates that the plaintiffs and their father were not residing with the
deceased Satyavati Jawkar. Therefore, I have already mentioned that
the plaintiffs have not produced any documentary evidence to show
that they are residing in the suit premises at the time of death of
Satyavati Jawkar and after her death. Therefore, the plaintiffs have
failed to make out the case for grant of interim relief in terms of prayer
clauses (a), (b), (d), (e), (f), (g).
20. Perusing the record, it also appears that the plaintiffs’
father filed the separate Suit bearing No.3027/2014. In that suit, he has
filed Notice of Motion No.4174/2014 for seeking relief declaring that
the joint name of the plaintiffs with the defendant No.(4) be entered as
they are eligible for permanent alternate accommodation in lieu of suit
premises, that relief is rejected. The plaintiffs have also seeking relief to
restrain the defendant Nos.1 to 3 for allotting any permanent alternate
accommodation to defendant No.4 and also prayed for Court Receiver
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for permanent alternate accommodation, was also rejected. That order
is not set aside. Hence, it appears that the plaintiffs are not entitled to
claim relief as prayed in the Notice of Motion. Hence, the said relief
claimed by the plaintiffs cannot be granted at this stage because the
agreement executed by the defendant No.3 with defendant No.4 and
Affidavit cum Declaration executed by Satyavati Jawkar will be decided
after final adjudication and the trial. In such circumstances, the relief
claimed by the plaintiff is not entitled to grant. Hence, I answer point
No.1 in the negative and pass the following order.
ORDER
1. Notice of Motion No.4872 of 2019 is hereby
dismissed.
2. Notice of Motion No.4872 of 2019 is disposed of
accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 03.01.2023 Gr. Bombay.
Dictated on : 03.01.2023
Transcribed on : 03.01.2023 & 04.01.2023
Signed on : 05.01.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
05.01.2023 at 12.00 p.m. Mrs.K.S.Bhosale
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
03.01.2023
Judgment/Order signed by P.O. on 05.01.2023
Judgment/Order uploaded on 05.01.2023
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