Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.4920 OF 2019
IN
S.C. SUIT NO. 2476 OF 2019
Gokulram Alapuram Kawariya
Aged 56 years Occ: Business
of Bombay Indian Inhabitant
Residing at Hut No 77,
Near Ravidas Bhavan Hall, Vasant
Nagar No.1, Thakkar Bappa Colony,
Gali No.2, Near Mahalaxmi General Stores,
Chembur, Mumbai-400 071. ..Plaintiff
Versus
1. Manohar Gokulram Kawariya
An adult Indian Inhabitant
2. Lacchu Manohar Kawariya
An adult Indian Inhabitant
3. Narendra Gokulram Kawariya
An adult Indian Inhabitant
4. Sunita Narendra Kawariya
An adult Indian Inhabitant
also residing at Hut No 77,
Near Ravidas Bhavan Hall, Vasant
Nagar No.1, Thakkar Bappa Colony,
Gali No.2, Near Mahalaxmi General Stores,
Chembur, Mumbai-400 071. ..Defendants
Ld. advocate Mr.Kini for the plaintiff
Ld. advocate Mr.Chaube for the defendants
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CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 16/01/2021
ORAL ORDER
1. This notice of motion is tendered by plaintiff
interalia
praying for grant of temporary injunction restraining the defendants
from entering into, occupying, possessing or in any manner disturbing
the sole, exclusive and peaceful possession of the plaintiff in respect of
Hut No 77, Near Ravidas Bhavan Hall, Vasant Nagar No.1, Thakkar
Bappa Colony, Gali No.2, Near Mahalaxmi General Stores, Chembur,
Mumbai-400 071.(Hereinafter referred to as the suit premises).
2. In short the case of the plaintiff is that the plaintiff has
purchased the suit premises for a valuable consideration. The plaintiff
has been occupying the suit premises since long and accordingly
Mumbai Municipal Corporation of Gr.Mumbai(hereinafter referred to as
MCGM) issued a slip during the census. The ration card, electricity bill,
gas connection etc.,are in the name of the plaintiff showing the address
of the suit premises. The plaintiff has constructed the house. The
defendant nos.1 and 3 committed the murder of the wife of plaintiff i.e.
the mother of defendant nos.1 and 3 by pushing her down from the
stairs of the suit premises. Defendant no.3 was behind the bar and was
released on bail. Defendant no.1 was staying at the loft of the suit
premises with his family and defendant no.3 was staying at the first
floor with his family. After the death of wife of plaintiff, the plaintiff
went to his native place and returned on 04/08/2019. The defendants
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are harassing the plaintiff and wish to evict him from the suit premises.
Therefore the present suit alongwith this accompanying notice of
motion came to be filed.
3. The defendants filed their written statement and reply and
denied the contentions of the plaintiff. Their stand is that the
documents in the name of the plaintiff are formal documents and does
not confer ownership of suit premises to plaintiff which is a slum
structure constructed by their mother late Smt. Meemadevi which was
totally kaccha construction and defendant nos.1 and 3 got repaired and
make it fully pakka construction from their money. The plaintiff got
extra marital relation with one lady and got married with her more
than 20 years back and residing with her at Mulund. The plantiff is not
residing in the suit premises since 1994. The plaintiff used to come to
the suit premises and harassed defendant nos.1 and 3 and their mother.
The defendants are residing in the suit premises and are not having
alternate accommodation. Due to the harassment by plaintiff,
defendant nos.1 and 3 lost their mother. The plaintiff has lodged false
complaint and managed to get registered the offence against defendant
no.3. The plaintiff wish to dispose of the suit premises and therefore
put up false story of harassment. Hence, they prayed for rejection of the
notice of motion.
4. On the basis of rival contentions of the parties, following
points arise for my determination and findings to it are recorded for the
reasons stated hereinafter:-
POINTS
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(i) Whether the plaintiff has made out a prima facie
case in his favour?
(ii) Whether the needle of balance of convenience tilt in
favour of plaintiff?
(iii) To whom irreparable loss would be caused?
(iv) What order?
FINDINGS
(i) In the negative
(ii) In the negative
(iii) Not to the plaintiff
(vi) As per final order
REASONS
Point Nos. 1 to 3
5. At the outset the parties are not disputed about the
ownership of the suit premises. Even there is no dispute that the suit
premises is standing in the name of the plaintiff. Ld. Counsel for the
plaintiff argued that the plaintiff is owner and he is in possession of the
suit premises. The defendants are having no title or interest over the
suit premises. Ld. Counsel for the defendants argued that ownership
cannot be conferred in respect of the slum premises. The ownership is
in respect of the slum premises is only to the extent of a structure. At
this stage, it is not appropriate for this Court to deal with the
proprietary rights of the parties in respect of the suit premises. The
plaintiff, in order to support his case for possession has filed certain
documents. The document of survey by MCGM dated 12/07/2000
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shows that the application was tendered by the plaintiff in prescribed
format alongwith the documents. The ration card issued in the year
1999 shows the name of the plaintiff. But, from these documents it is
difficult to ascertain that these documents are pertaining to the suit
premises. The Election card and the Aadhar card shows the address of
the suit premises, whereas the electricity bill and the document of the
water department of MCGM and the bill issued by the Gas agency
shows the address of the suit premises but exact hut number is not
mentioned in these documents. Be that as it may, the documents prima
facie shows that the plaintiff was holding the possession of the suit
premises. These documents are not the recent documents, but, it gives
prima facie strength as regard possession of the plaintiff at some point
of time over the suit premises. The defendants categorically admitted
that these documents although in the name of the plaintiff, but does
not confer right or title of the plaintiff whereas their argument is that
they have invested money for construction of the suit premises and the
efforts were taken by their mother-Smt.Meemadevi. Prima facie there
is no document from the side of the defendants to demonstrate that
they have undertaken the construction of the suit premises. The same
is not relevant for the inquiry in question. The defendants have filed
the recent receipts of payment of electricity bills. Those are for the
period 2017 to January-2020. The contention is that they are
continuously residing in the suit premises and the plaintiff is residing in
the premises at Mulund alongwith his other wife. Prima facie, at this
juncture, there is no material from the side of the defendants to
demonstrate that the plaintiff is residing at Mulund.
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6. The argument of the Ld. Counsel for the plaintiff is that
defendants have made his life miserable and even they committed
murder of his wife. It is the contention of the plaintiff that defendant
nos.1 and 3 pushed their mother from staircase of the suit premises and
killed her. Defendant nos.1 and 2 coaxed defendant no.3 who took the
blame of causing murder of his own mother. So, from this act and
ommissions of defendants, plaintiff apprehends his dispossesion from
the suit premises.
7. So far as the criminal case is concerned, Competent
Criminal Court will deal with it. It is not approriate for this Court to
comment on merits on that case.
8. It is the contention of the plaintiff that since he returned
from his native place i.e. from 04/08/2019, the defendants have
started harassing him and threatened him to evict from the suit
premises. The reliefs i.e. claimed by the plaintiff are that the
defendants be restrained from entering and dispossesing and disturbing
the sole and exclusive possession of the plaintiff. On bare reading of
the plaint avernments, it is apparent that the defendants are occupying
the suit premises. The relief is claimed in the nature that defendants
should not enter the suit premises. The defendants on the day of
institution of the suit and prior to it are occupying the suit premises;
The relief which is claimed by way of temporary injunction is in the
nature of mandatory. The plaintiff has not filed any suit for possession.
Even the plaintiff has not claimed any relief of mandatory injunction in
the suit. The interim reliefs are in the aid to the main reliefs. For grant
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of interim reliefs in the form of mandatory nature, extra ordinary case
has to be made out. There should be strong prima facie case to grant
such reliefs. The plaint avernments are vague. The avernments as
regard the acts and omissions of the defendants are vague. It does not
give clarity as regard the nature of harassment and the actual acts of
the defendants. Therefore, it cannot be said that the plaintiff has made
out any strong prima facie for grant of relief of temporary mandatory
injunction.
9. Since the defendants are occupying the suit premises on
the date of filing of the suit and prior to it, the needle of balance of
convenience does not tilt in favour of the plaintiff.
10. The defendants are also in possession of the suit premises,
therefore there is no question of irreparable loss to the plaintiff.
Hence, I answer point nos.1 to 3 in the negative.
Point No.4
11. In view of the above discussion, the notice of motion
needs no consideration. Hence, it is expedient to pass following
order:-
ORDER
1. N/M No.4920 of 2019 stands rejected.
2. Costs in the cause.
16/01/2021 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
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Dictated on : 16/01/2021
Transcribed on : 16/01/2021
Signed on : 16/01/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
16/01/2020 at 4.40 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/order 16/01/2021
Judgment and order signed by P.O. 16/01/2021
Judgment/order uploaded on 16/01/2021
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