Order 1

Order Details: Order
Pdf Text: NM No. 2391 of 2023 1 S.C.Suit No. 1723 of 2023
MHCC040065542023
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
BORIVALI DIVISION, DINDOSHI (BRANCH)
NOTICE OF MOTION NO. 2391 OF 2023
IN
S. C. SUIT NO. 1723 OF 2023
Sanjay Rajesh Chauhan … Plaintiff
V/s.
Ramjanam Tilak Yadav & Ors. ... Defendants
Shri. Dinesh Tiwari Advocate for plaintiff.
Shri. Punit Shukla Advocate for defendant.
CORAM: His Honour The 1st Addl.Principal Judge
Shri V. V. Patil
(C.R.No.1)
DATE : 2nd August, 2023
: ORAL ORDER :
(Common order)
1. The plaintiff has taken out this notice of motion under
Order XXXIX Rule 1 and 2 of C.P.C. and prayed to restrain the
defendants from causing obstruction and interference in his possession
on commercial premises admeasuring 10 X 15 made up of bricks and
massanory walls covered with cement sheet lying being and situated at
Navyuvak Seva Society, Lal Tiwari Road, Near Shiv Mandir, Sanjay
Nagar, Kandivali (West), Mumbai – 400 067, Village – Kandivali,
Taluka–Borivali, Mumbai Suburban District (henceforth referred as 'Suit
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NM No. 2391 of 2023 2 S.C.Suit No. 1723 of 2023
Premise'). He further prayed to permit the plaitiff to restore the
demolished wall/door of rear side of the suit premises to its original
condition.
2. It is the case of the plaintiff that he has purchased the suit
premises from Ramsakal Yadav and is in possession of the same.
Ramsakal Yadav is the real brother of defendant no. 1 and 2.
3. He further contended that on 23.11.2005 Ramsakal Yadav
by executing declaration had surrendered his right, title and interest in
the suit premises in favour of his son Jitendra Ramsakal Yadav. On
06.03.2023 Jitendra executed Sale Agreement and Power of Attroney in
favour of the plaintiff and transferred his right and interest in the suit
premises. He further contended that defendants without any legal right
are causing obstruction and interference in his possesssion and
therefore, he is constrained to file the suit and take out notice of
motion.
4. The defendants filed reply to the notice of motion and
denied all the adverse allegations made by the plaintiff in the suit as
well as notice of motion. According to them the plaintiff is not in
possession of the suit premises. They further contended that Ramsakal
Yadav was not the exclusive owner of the suit premises, and therefore,
the question of transferring his right and interest in the suit premises in
favour of his son Jitendra does not arise. He further contended that
Jitendra was also not legally authorized to transfer the suit premises in
favour of the plaintiff. The defendants claimed their possession in the
suit premises. With all these contention the defendants prayed to
dismiss the notice of motion.
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NM No. 2391 of 2023 3 S.C.Suit No. 1723 of 2023
5. Heard both sides following points arise for my
determination and I record my findings thereon, followed by the
reasons given below:
Sr.
No.
POINTS FINDINGS
1. Whether the plaintiff is entitled for the
relief as claimed in the notice of motion
?
In the Negative
2. What Order ? As per the final order.
R E A S O N S
6. The Ld. Counsel for the plaintiff argued at length. He took
me through the prima facie documentary evidence produced on record
and urged to allow the notice of motion.
7. Per contra, the Ld. Counsel for defendants urged that the
suit simplicitor for perpetual is not maintainable. According to him the
documents produced on record by the plaintiff do not show his lawful
possession in the suit premises and therefore, his prayer to restrain the
defendants who are in use and occupation of the same cannot be
alowed.
8. I have considered the submission advanced by both sides
and gone through the record and proceeding of the matter. The record
shows that defendants had filed suit no. 827 of 2023 against Ramsakal
Yadav wherein they had prayed to restrain him from creating third
party interest in the suit premises. However, that notice of motion was
dismissed on 02.05.2023 by City Civil Court, Dindoshi.
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NM No. 2391 of 2023 4 S.C.Suit No. 1723 of 2023
9. The record shows that before dismissal of notice of motion
no. 1189 of 2023 filed in suit no. 827/2023 Ramsakal Yadav had
already executed certain document viz declaration etc in respect of the
suit premises in favour of his son. The record further shows that on
06.03.2023 Jitendra by executing declaration, Power of Attroney and
Sale Agreement, has transferred his right and interest in favour of the
plaintiff and on the basis of this document the plaintiff is claiming his
possession in the suit premises and praying to restrain the defendants
who are real brother of Ramsakal Yadav.
10. Now the question is whether the documents produced on
record by the plaintiff to show his lawful possession on the suit
premises can be read in evidence. The affidavit dated 23.11.2005,
which shows that Ramsakal Yadav transferred his right and interest in
favour of his son in the suit premises is excluded from admitting as an
evidence as per section 1 of Evidence Act, so by relying on this
document it can not be said that Jitendra had got any right and interest
in the suit premises.
11. The Agreement of Sale dated 06.03.2023 executed by
Jitendra in favour of the plaintiff shows that the plaintiff by paying Rs.
7,00,000/ (Rupees Seven Lakhs Only) obtained possession of the suit
premises. In my opinion this document also cannot be read in evidence
to accept that the plaintiff is in possession of the suit premises, as there
is bar of Section 17(1)(a) of the Registration Act. As per Section 17(1)
(a) the documents containing contracts to transfer for consideration,
any immovable property for the purpose of Section 53A of the Transfer
of Property Act, 1882 shall be registered. In present matter the plaintiff
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is claiming protection of his possession on the basis of this unregistered
agreement of sale. As this agreement of sale is not registered document
the same cannot be considered to hold that the plaintiff is in possession
of the suit premises. The rest of the documents i.e. affidavit, power of
attroney also are not useful to establish the plaintiffs possession in the
suit premises.
12. It is the case of defendants that they are in joint possession
with their brother Ramsakal Yadav in the suit premises. The suit
premises was purchased from joint income of them and Ramsakal
Yadav. In my opinion whether the suit premises was exclusively owned
by Ramsakal Yadav or the same was jointly acquirred by defendants and
Ramsakal would be decided at the time of final hearing. At this stage as
defendants also found in prima facie possession of the suit premises,
they cannot be injuncted by the Court of law. Thus, I hold that there is
no merit in the notice of motion filed by the plaintiff and the same
deserves to be dismissed. Hence, the order.
O R D E R
The Notice of Motion No. 2391 of 2023 stands dismissed and disposed
off accordingly.
( V. V. Patil )
02.08.2023 1st Addl.Principal Judge
City Civil & Sessions Court
Dindoshi, Mumbai.
Date of dictation : 02.08.2023
Date of transcription by steno : 02.08.2023
Signed on : 02.08.2023
Sent to dept. On :
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NM No. 2391 of 2023 6 S.C.Suit No. 1723 of 2023
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Ms. Tejal C. Rane
03.08.2023 at 11.10 a.m. STENOGRAPHER(GradeI)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.1st A.P.J. V. V. Patil
Court Room No.1
Date of pronouncement of
Judgment/Order
02.08.2023
Judgment/Order signed by P.O. on 02.08.2023
Judgment/Order uploaded on 03.08.2023
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