1 NMS.549/2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 549 OF 2009 IN SUIT NO. 268 OF 2009 Vikas Vinayak Shelar & Anr. ..Plaintiff. Vs. Amrut Vinayak Shelar .. ..Defendant. ---- Mr. D.K. Pandey, for the Plaintiffs. Mr. S.A. Bhagwat, for the Defendant. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 7 th SEPTEMBER 2010. P.C. 1] On perusal of the plaint, it appears that the plaintiffs and the defendant are brothers. They are claiming a immovable property more particularly described in para 1 and annexue ‘A to the plaint. It is stated that the premises were acquired by the father of the plaintiffs and the defendant and both were residing in the premises till the year 1999. Plaintiff no.1 completed his education and thereafter was working in the Premier Limited. Both father and plaintiff no.1 were working in Primier Limited. The father retired in the year 1984 and after his retirement it was agreed between the family members that defendant will be given job in the Company and against the said job, the premises will be transferred in favour of plaintiffs. 2 NMS.549/2009 2] Accordingly, a writing to that effect annexure ‘E’ is annexed to the affidavit.. The parties have proceeded on the basis that these letters were genuine. However, now the defendant is denying the entitlement of the plaintiffs on technical and equitable grounds allegedly. It is stated that a suit bearing suit no.5841 of 2001 was filed by the plaintiffs claiming identical relief in the City Civil Court. That suit was dismissed for want of prosecution and no application for restoration thereof was made. 3] Secondly, the father has on 10.4.1995 addressed letters to the Society clarifying that he has never executed any writing and did not therefore desire to give any rights to the plaintiff exclusively. On the other hand, the desire of the father was to put the defendant in possession and also confer upon him the rights of the property. Further, the father had left a Will which was made in the year 2004. The father expired in January 2008. For all these reasons, it is prayed that the the Notice of Motion be dismissed. 4] As far as the first objection is concerned, on the own showing of the defendant, it is clear that the Suit No.5841 of 2001 was filed by the plaintiff against the father and during his lifetime. Even the present defendant was a party therein. It may be true that the suit was for filed for injunction simpliciter, but it has been dismissed for want of prosecution. 3 NMS.549/2009 As to what effect such dismissal would have on the maintainability of the present suit is matter which should be gone in details at the trial. For the present, when the suit in the City Civil Court filed during the lifetime of the father was dismissed in default, prima facie, I cannot proceed on the basis that the instant suit is not maintainable. 5] Secondly, the contention raised in the affidavits that deceased father disowned the letter/writing during his life time by addressing letter to the Society and particularly the Secretary is concerned, I am of the opinion that by merely annexing these documents to the affidavit in reply the defendant cannot succeed. The defendant will have to prove at trial that the father desired not to give any right to the plaintiff in the premises during his lifetime. Further, that the plaintiff has given up the right, title and interest in the property is something which will have to be established by the defendant at the trial. In other words, he will have to prove the case as set out in the written statement. More so, when the plaintiff in the rejoinder affidavit disputes this version. It has been stated that the plaintiff left the suit premises in the year 1994 but the barring that there is nothing to show that he has given up the right, title and interest in the premises. The plaintiffs are claiming on the basis that their late father Vinayak Shelar was the owner of the property and he died intestate. If there is a Will that 4 NMS.549/2009 will have to be probated. Presently no probate has been obtained. The plaintiffs’ case in the affidavit- rejoinder is that the story as set out in the affidavit in reply cannot be believed and the documents which are stated to have to have been executed during the lifetime of the father have never been produced till date. For all these reasons, there genuineness is in doubt. 6] In such circumstances, when the litigation is between the family members the subject matter thereof needs to be preserved and protected. The defendant is residing in the suit property along with his family members. There is no question of dispossessing him at this interlocutory stage. However, in the light of the versions that have come on affidavit and since parties will have to be given opportunity to prove it, it is not just and convenient to appoint the Court Receiver either. The only relief that can be granted is an injunction to restrain the defendant, his servants, agents and all persons claiming through him from selling, transferring and creating any third party rights or parting with possession of the suit premises in any manner. That is the only relief relating to which a prima facie case has been made out. Even the balance of convenience to that extent is in favour of the plaintiff and the plaintiff will suffer irreparable loss and injury if the premises are dealt with during the pendency of the suit. 5 NMS.549/2009 7] In these circumstances, the Notice of Motion is allowed and there shall be an Injunction pending the suit restraining defendant, his servants, agents and persons claiming through him from selling, transferring and creating any third party rights or parting with possession of the suit premises in any manner. The Notice of Motion is made absolute accordingly, with no order as to costs. 8] Needless to menton that each of these observations are tentative and prima facie and will not influence the Court at the time of trial. [S.C. DHARMADHIKARI, J.]