1 nm 2039-2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2039 OF 2009 IN SUIT NO. 1014 OF 2009 Mrs.Draupadi Venkat Narayan ...Plaintiff vs. Ms.Bina Thakurdas Phulwar & Ors. ...Defendants Mr.Vaibhav Mehta i/b. M/s.V. Mehta & Associates for the Plaintiff and Defendant Nos.1 and 2 in Suit No. 3237/2009. Mr.Kamal Khata with Mr.Parikshit Desai & Hiten Mehta i/b. Mr.Hiren Mehta for Defendant and Plaintiff in Suit No.3237/2009. CORAM : S.C. DHARMADHIKARI, J. DATED : OCTOBER 20, 2010 P.C. :- 1 The plaintiff, defendant nos.1 and 4 are real sisters. Defendant No.2 is the married sister of the plaintiff and defendant no.3 is her husband. 2 No reliefs are claimed against defendant 2 nm 2039-2009 no.4 in this suit. The suit is filed for a declaration that the suit property is an exclusive property of the plaintiff and the first defendant has only life interest therein and for other reliefs including permanent injunction. 3 Plaintiff claims title to the property through her grandmother Smt.Padmini Jagasia. The said grandmother expired on 14th September, 1979. After grandmother, it is the plaintiff s mother Rukmani Phulwar who became sole owner of the property, that is the case set out in para 3 of the plaint. 4 It is stated that the plaintiff was married on 2nd September, 1953 and thereafter, was residing with her husband. Defendant no.2 got married to defendant no.3 in or about 1968. The property is ground plus one floor. It is stated that defendant no.3 requested the deceased mother to allow her and his family members to occupy the suit premises for 3 nm 2039-2009 sometime. Considering that the wife of defendant no. 3 viz. Defendant no.2 is her daughter, the deceased allowed him but there were several instances when the conduct of the defendant no.3 was continuously disturbing the plaintiff. The plaintiff lost her husband on 3.1.2001. 5 The plaintiff, it is stated is residing in the ground floor portion, whereas the first floor is occupied by the defendant nos.2 and 3. The suit is, therefore, filed claiming ownership of the property also on the basis of a writing which is stated to be the Will of the deceased. 6 The Notice of Motion is moved in furtherance of these reliefs. 7 When this notice of motion was placed before this court on 20th January, 2009, this Court after being satisfied that a prima facie case is made out, directed that defendant nos.1 to 4 shall 4 nm 2039-2009 not create any third party rights or part with possession of the suit premises or otherwise encumber the suit premises in any manner until further orders. 8 On a query why this order cannot be confirmed, Mr.Khata, learned Counsel on behalf of the contesting defendants submits that there is a gross suppression of material facts, the conduct of the plaintiff is also not bonafide. The plaintiff has not been treating her sisters properly. It is alleged that an affidavit-in-reply has been filed by defendant no.1 who is stated to be representing both defendant nos.1 and 4. It is stated that the order was passed without any service of the proceedings on defendant no.1. It is also stated that the plaintiff has suppressed the Will of her mother. It is stated that the plaintiff has imposed herself on defendant no.1 and forcibly came and occupied the house on the ground floor. It is stated that the plaintiff is married and has residence at 99, Sindhi Society at 5 nm 2039-2009 Chembur and hence, she should leave the house of the first defendant. In any event, when her house is close to the first defendant, there is no reason for her to occupy the ground floor. 9 My attention is invited to the fact that the first defendant has also filed a suit against the plaintiff being Suit No.3237/2009. That suit is filed on title and the stand of the first defendant has been clearly set out therein. It is in such circumstances that it is submitted by Shri Khata, learned Counsel that the ad-interim order be vacated. 10 The second defendant has also filed an affidavit and she has adopted the stand of the first defendant in so far as family background. The defendant no.7 and the other defendants are Banks and they are not concerned with the dispute between the plaintiff and defendant nos.1 to 4. 6 nm 2039-2009 11 Having perused the plaint and the annexures thereto and all affidavits on record, in my view, the ad-interim order deserves to be confirmed. This is a dispute between plaintiff who is 75 years of age and the defendant nos.1 to 3 essentially. Even these defendants are senior citizens. The dispute is between sisters. Both claim to be exclusively entitled to their mother s property. The dispute and differences are indeed serious because both are accusing each other of indulging in such conduct and the intent is to defraud the other. The averments in the plaint would go to show that the plaintiff blames defendant no.3 and defendant no.2 for having created a situation wherein disputes and differences between the family members increased. On the other hand, defendant no.1 in her affidavit and her plaint has pointed out as to how the plaintiff herself is to be blamed. She has taken inconsistent stand. She is trying to usurp the property. Defendant no.1 in her detailed affidavit has made 7 nm 2039-2009 allegation that the plaintiff had suggested to her that the house should be repaired and name of Mr.Ram Thakur was suggested. Allegations are levelled in para 7.6 to 7.9 against the plaintiff including the threat from Shri Ram Thakur to kill the first defendant. Defendant no.4 is deaf and dumb. It is stated that there are other sharers but their details are not set out and suppressed from this court. 12 To my mind, such being the state of affairs, all that is done by this court on 20th January, 2009 is to grant an ad-interim relief to preserve, protect the subject matter of litigation. The immovable property is in Mumbai. It is a bungalow at Chembur. Both the plaintiff and defendant nos.1 to 4 are claiming rights therein. In such circumstances, the balance of convenience would be in favour of protection and preservation of the bungalow. In other words, the Court must ensure that the immovable property is protected. If third party 8 nm 2039-2009 rights are allowed to be created, that would complicate the matter further. In these circumstances, the ad-interim order dated 20th January, 2009 is confirmed. Notice of Motion is made absolute in these terms. 13 Considering the fact that the parties are senior citizens, hearing of the suit is expedited. The written statement shall be filed on or before 29th November, 2010. Place this suit for framing of issues on 6th December, 2010. In the light of the order made in Notice of Motion No.2039/2009, there cannot be any other interim order save and except directing the plaintiff in suit No.1014/2009, who is defendant no.1 in suit no.3237/2009, not to create any third party rights in respect of the portion occupied by her viz. the ground floor of the bungalow more particularly described in schedule to the plaint in suit no.3237/2009. It is expected that when parties like plaintiff in both the suits have approached the court for protection and preservation 9 nm 2039-2009 of their rights, they should not commit any acts which would obstruct the peaceful enjoyment of the respective portion in their possession nor they will obstruct others by disturbing their possession. This observation had to be made as Mr.Khata complains that use of camera by the plaintiff for her safety is causing nuisance to the defendants and affecting their privacy because the persons visiting them are being filmed by utilizing and using this camera. It is in such circumstances that I am constrained to make this observation and both sides will have to restrain themselves, if they want to resolve their dispute by a court of law. Their conduct is affecting the rights claimed by each other and in the garb of court orders, if the liberty granted to use and occupy is being misused, the court will have to take a serious view and vacate ad-interim orders granted earlier. (S.C. DHARMADHIKARI, J.)