*1* nms.519.09.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.519 OF 2009 IN SUIT NO.291 OF 2009 Anant Gopal Ubare. ..Plaintiff -Versus- Vimal Anant Parab and others. ..Defendants .......... O.P.Pandey i/b Pandey & Company, for the Plaintiff. M.P.Vashi, for the Defendant Nos.1 to 5. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 18th October, 2010. P.C. 1 This Notice of Motion has been filed in a suit by the Plaintiff for declaration that the Defendants have no right, title and interest in the suit premises which are more particularly described in the prayers of the plaint. 2 The Plaintiff and the Defendant No.1, at one time, were husband and wife and their marriage has been dissolved by a decree of divorce passed by the learned Judge, Family Court, Mumbai at Bandra in Petition No.A-1090/2003 by a judgment and decree dated 21.05.2008. From this wedlock the Defendant Nos.2, 3, 4 and 5 are sons and daughter respectively. 3 The Plaintiff claims to be the owner of the flat bearing No. 206, A-Wing, Shivsagar Co-operative Housing Society Limited, Kherwadi, Bandra, Mumbai-400051, admeasuring about 450 sq.ft., which is subject matter of this suit. *2* nms.519.09.sxw 4 It is stated in the plaint that the Plaintiff acquired two commercial premises from his earnings. First one was shop premises situate at Indira Nagar, Janseva Chawl Committee, Golibar Road, Khar- Santacruz Road (East), Mumbai-400055, which was acquired in the year 1994. This shop premises are referred to in paragraph No.2 of the plaint. There is reference to another immovable property which is a flour mill at Pandharinath Patil Chawl, Ghatla Borla Gaothan, S.T.Road, Chembur, Mumbai-400071, which was acquired in the year 1996. 5 The Plaintiff and the Defendant No.1 were married on 15.06.1974. Today, the Plaintiff claims to be about 65 years of age and retired from Government service so also from the Municipal service. He is doctor by profession. He states that the Defendant No.2 is eldest son and the Defendant Nos.3 and 4 are sons who are younger to the Defendant No.2. The Defendant No.2 has completed his education and is also doctor by profession. The Defendant No.3 is presently working as Medical Representative. The Defendant No.4 is said to be working as Consultant with Span Computers Company. The Defendant No.5 is the daughter who has completed her education but is unmarried as yet. 6 In such circumstances, it is stated by the Plaintiff that he has fulfilled his family responsibilities and has settled his children in life. He has acquired the immovable properties and he is paying monthly rent, maintenance and other charges in respect thereof. It is stated that the Defendant No.1 has treated him very badly and that is how the relations deteriorated and thereafter, matrimonial proceedings came to be initiated in which the Plaintiff has obtained a decree for divorce. Therefore, after there is severance of relationship, the Defendants started harassing the Plaintiff by not allowing him to reside in his own residential premises peacefully and that there were day to day problems created particularly *3* nms.519.09.sxw after the Family Court proceedings. It is alleged that the Defendants confined the Plaintiff to one room and they are not allowing him to get help from any neighbour and family members. There are complaints made to the Police Station. The Plaintiff states that he is a heart patient and because of daily harassment, he has got himself admitted in hospital. Reference is made to all these facts from paragraph Nos.14 to 19 of the plaint and then it is alleged that the Defendants have no legal right, title and interest in the suit property as the same is self acquired property of the Plaintiff. For these reasons, a declaration is claimed and on account of continuous harassment, interim reliefs are claimed in terms of prayers of the Notice of Motion directing removal of the Defendants from the premises namely flat at Bandra and other premises. It is urged that this temporary order in mandatory form should be passed because of the harassment by the Defendants of the Plaintiff. 7 On receipt of the writ of summons, there is Written Statement filed by the Defendant Nos.1 to 5. It is stated that the flat is occupied by the Defendants for last more than 20 years. It is clearly stated that the Plaintiff was also residing with them but left the house 8-10 years ago. This is in relation to the flat at Bandra. It is stated that the Plaintiff is presently residing at Room No.105, Rehab Building No.4, Shantingar Rahivasi SRA Co-operative Housing Society Limited, 1st Floor, Mahakali Caves Road, Opposite MIDC Bus Depot, Andheri (East), Mumbai-93. It is stated that not only the Defendant No.1 claims right in the property as wife but the Defendant Nos.2 to 5 have legitimate right to occupy the premises. In such circumstances, the motion be dismissed. 8 In the affidavit in reply to this Notice of Motion, the Defendant No.2 has stated that the Plaintiff has come with false case because at no point of time the Plaintiff resided in the flat at Bandra and *4* nms.519.09.sxw he is residing at Andheri since 2007. Prior to that he was residing with his brother at Kanjur Marg. He has also his dispensary at Andheri address. It is stated that the property at Andheri was developed by M/s Vasundhara Developers. The Plaintiff got flat at Andheri in the new premises which he is using as dispensary and he got permanent alternate accommodation. Since the Defendant No.1’s name was also mentioned in the agreement, she received a letter dated 14.03.2008 from the Shantingar Co-operative Housing Society, Andheri wherein it was mentioned that room No.105 was allotted to the Plaintiff under the SRA Scheme. The documents in that behalf are referred to in paragraph Nos.3 and 4. However, it is stated that the Defendant Nos.1 to 5 have been residing in the suit flat and it is they who are exclusively occupying it. They have documents such as electricity bill, electoral identity card, ration card to show that the Defendants are occupying the suit premises at Bandra for considerable period of time. It is pointed out that they have applied for deleting the name of Plaintiff from the ration card. In fact it is stated that there are arrears in respect of the maintenance charges of the suit property at Bandra which the Plaintiff has paid by cheque. In paragraph No.5 of the affidavit in reply, this is what is stated :- “5. After the last date of hearing, I personally went to Shantingar Hsg. Society at MIDC to verify about the Plaintiff’s place of residence. It was at about 11 P.M. on 08.09.2010. I personally met him as well as the secretary of the society Mr.More. Mr.More told me that though he has been residing there, he had not paid the society charges for the last 2 years. My mother wrote a letter dated 20.12.2009 addressed to the Secretary of the Shivsagar Society, where the suit premises is situated, confirming that Rs.1,06,000/- was paid by installments by various cheques. Hereto annexed and marked Exhibit “9” is a copy of the said letter translated from Marathi into English.” *5* nms.519.09.sxw 9 It is stated that the Plaintiff has not purchased the suit flat at Bandra from his own money but it is mother (Defendant No.1) who has contributed inasmuch as the Defendant No.1 had flat at Curry Road, Mumbai which was allotted by Bombay Housing & Area Development Board and that was given to her by her parents. The Defendant No.1 (mother) surrendered the said flat at Curry Road in 1991 and received a sum of Rs.3 lacs. Thereafter, the suit flat at Bandra was purchased. It is in such circumstances, the Plaintiff cannot say that the flat at Bandra is his self acquired property or that it exclusively belongs to him. It is stated that the Plaintiff does not own the flour mill at Chembur but the flour mill is conducted by the brother of the Defendant No.2 and it is on tenancy basis. The flour mill business was purchased by the brother of the Defendant No. 2 under the agreement dated 06.05.1997 for Rs.1,50,000/-. Annexure-12 to the affidavit in reply is a copy of the affidavit of the vendor confirming this fact. Therefore, none of the premises belong to the Plaintiff and he is not in possession thereof. The Defendants have denied that the Plaintiff has been peacefully living in the premises at any time. They have stated that the Plaintiff was having extra-marital relation with one lady and she was residing with him. He had left the family and the Defendant No.1 (wife) for the past 8-10 years. In such circumstances, all allegations of torture, harassment and illtreament are false. There has been no assault. In such circumstances, it is stated that the Notice of Motion be dismissed. 10 There is an affidavit in rejoinder filed by the Plaintiff in which he states that false statements have been made. He states that the electricity meter in respect of the premises at Bandra has been transferred behind the back of the Plaintiff and therefore, he has lodged an objection with the Electricity Company namely Reliance Energy Limited. He states that it is false that he is not residing at Bandra in the premises described *6* nms.519.09.sxw as “A”. He denies that he has been residing at Andheri. He denies that prior to 2007 he resided with his brother at Kanjur Marg. However, he admits that the flat at Andheri is dispensary and the same is in commercial use. The basic argument of the Plaintiff throughout is that he has obtained a decree for divorce against the Defendant No.1 and having obtained a decree, the Defendant No.1 has no right, title and interest in any of the premises. She is no longer his wife, therefore, there is no question of any right, title and interest in the premises being created or remaining any longer in her favour. He states that the flat at Shanti Nagar Society, Andheri has been transferred for valuable consideration to the transferee by him. He states that he has been residing in the suit premises at Bandra since 1991 and he has documentary evidence such as ration card, electoral identity card, senior citizen card which shows that he is residing there and he has household articles such as colour TV, fridge, VCR, washing machine, etc.. He accuses the son for making false statements and states that the Defendant No.2 is doctor and is residing separately and running dispensary at Ambe Mata Sangh No.5, Nehru Nagar, Vile Parle (W), Mumbai-67 and the Defendant No.2 is residing therein. Thus, the Defendant No.2 was never residing in the suit flat. He also denies that the Defendants are residing in the suit flat. This is the basis of his denial which runs throughout the entire affidavit in rejoinder. The Plaintiff states that the wife never received any consideration in respect of the Curry Road premises but they were purchased by him by obtaining loan from the Municipal Corporation. However, he admits that the flour mill is in tenanted premises. He admits that the flour mill is purchased by him in the name of the Defendant No.3 when he was schooling having no source of income. Thus, as father he inserted his name but none of the premises belong to the sons exclusively. It is in these *7* nms.519.09.sxw circumstances he prays that the motion be made absolute. 11 I have heard Mr.Pandey appearing for the Plaintiff and Mr.Vashi appearing for the Defendants at great length. On earlier occasion, attempts were made to explore possibility of amicable settlement and find out some workable solution, however, considering the strained relations of the Plaintiff and the Defendant No.1, no settlement could be arrived at. Unfortunately, even the sons and daughter of the Plaintiff are not eager to settle the matter with him. 12 As far as the Plaintiff’s case that he is residing in the suit premises at Bandra is concerned, he seeks to produce some documents but the judgment and decree of the Family Court has been produced and during the course of the proceedings, it was pointed out by the Plaintiff that he is treated like slave in his own house. His children are not talking to him at the instigation of the Defendant No.1 and that on 12.12.2002 he was assaulted by sons. He states that when he was ill and bedridden, wife and children did not take care of him. It has come on record in the course of the proceedings before the Family Court that the allegations against the Plaintiff of having an illicit and adulterous relation with Rupali Sawant were disbelieved and the Family Court held that they have not been proved. Yet it has come on record that the Plaintiff has premises at Andheri. He also admitted during the course of evidence that the Defendant No.1 and the Defendant Nos.2 to 5 are in possession of the premises at Bandra and he has locked one bedroom which is in his possession. He has denied of having any relationship with other lady. The relationship between the Plaintiff and the Defendant No.1 has deteriorated to a great extent as indicated in the judgment of the Family Court. It is clear that from 2002-2003, the Plaintiff and all Defendants did not get all along. There were disputes between them. However, all *8* nms.519.09.sxw throughout the proceedings, it was argued that the Plaintiff has not disclosed the address where he is residing. He is deliberately keeping back the said details because he wants to harass the Defendant No.1 and children. This has some bearing because when the specific case of the Plaintiff is that he is residing at the premises at Bandra and that is what he avers in paragraph No.7 of the plaint but the Defendants have filed a reply and particularly that of the Defendant No.2 who has stated that the Plaintiff never resided with the Defendants and from 2007 onwards he is residing at Andheri and prior thereto, he was residing at Kanjur Marg where he has his dispensary. Thirdly, the Plaintiff has his own premises at Andheri which came to be demolished and in lieu thereof he has been allotted the premises by the developer. The Defendants asserted that there are number of documents to show that they are alone residing in the flat at Bandra and it is in their exclusive possession. Thus, the flat at Bandra was never in possession of the Plaintiff. 13 In these circumstances, the least that was expected from the Plaintiff was to produce some proof of his residence at Bandra. In the rejoinder affidavit the Plaintiff does not disclose his residential address. The rejoinder is signed by him but below his signature also there are no details of his residential address. Even in the first paragraph of the rejoinder, he has not disclosed where he is residing. All paragraphs of the rejoinder contain denials but as indicated above, there is admission that the Plaintiff has acquired Flat No.105 in Rehab Building No.4, Shanti Nagar Co-operative Housing Society, Andheri yet he claims that he is not residing there but in this flat he has set up his dispensary. At the same time, it is stated that he has been residing in the suit premises since 1991 till date. The documents that are produced by him include one letter from the Reliance Energy Ltd., a copy of the said letter is dated 10.09.2008 and *9* nms.519.09.sxw the correspondence will indicate that all that the Plaintiff is doing is to object the entry in records of the electricity company. Further there is complaint to the Police Station which clearly states that he has obtained a divorce from his wife (Defendant No.1), however, despite obtaining divorce, it is the wife who is residing in flat at Bandra and he is not residing therein. In fact his complaint was that his children and wife were not allowing him to reside at Bandra flat. In such circumstances, his version that he has one room reserved in the flat at Bandra and that there are his belongings in the said room, is difficult to accept. At this juncture, prima facie, it is material to note that while granting divorce in favour of the Plaintiff, what the Family Court has observed is that his allegations against wife seem to be irresponsible and not inspiring confidence. The observations of the Family Court in paragraph Nos.46 to 48 of the judgment are eloquent enough. In these circumstances, it is difficult, prima facie, to conclude that the Plaintiff was residing in the premises despite going through a bad matrimonial relationship. The relationship having collapsed and he instituting the proceedings against his wife at a fairly advanced age and nearly after 30 years of his marriage, is reason enough to hold that the Plaintiff has failed to prove his case of residence at the suit flat at Bandra. It is in these circumstances, I decline to grant any interim relief in his favour. The Notice of Motion is, therefore, dismissed but without any order as to costs. All observations made are tentative and prima facie and shall not influence the Court while deciding the suit. 14 Notice of Motion is dismissed accordingly. (S.C. Dharmadhikari, J)