: 1 : nms-194-09=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 194 OF 2009 IN SUIT NO. 2989 OF 2008 Geetanjali Minhas d/o. Late Mahavir Singh Minhas .. Plaintiff v/s. Rishi Minhas S/o. Late Mahavir Singh Minhas & Anr. .. Defendants ......... Mr. Manoj Prajapati with Ashta Tahmankar i/by Ashoka Law Firm for the plaintiff Mr. D.H. Mehta i/by G.M. Savagave for defendant no.1 Ms. Anjali Bhargava i/by Sameer Bhandari for defendant no.2 ......... CORAM : R.Y.GANOO, J. DATE : 27th AUGUST, 2010. P.C. : 1. This suit is filed by the plaintiff for seeking share in the property i.e. a flat more particularly described in paragraph 1 of the plaint. The suit proceeds on the footing that father of the plaintiff by name Mahavir Singh was the owner of the suit flat and on his death on 31st July, 2001, plaintiff is the heir of the said : 2 : nms-194-09=.sxw Mahavir Singh and in that capacity, he is entitled to 1/3rd share. The plaintiff has taken out Notice of Motion No.194 of 2009. By prayer clause (a). Plaintiff wants that defendant no.1 i.e. brother and defendant no.2 i.e. his mother should not create third party rights and / or part with possession in regard to suit flat. By prayer clause (b), plaintiff wants that an order of injunction should be issued against defendants restraining defendants from dispossessing the plaintiff from the suit flat. 2. The plaintiff claims that by virtue of an Agreement to Sale executed between father of the plaintiff and the developer, father of the plaintiff purchased suit flat. It is on this basis, plaintiff is placing his claim on the suit flat. Parties herein have filed affidavits. Defendant no.1 has come out with the case that though the flat was agreed to be purchased by Mahavir Singh from the developer, it was for the benefit of defendant nos. 1 and 2 and the share certificate issued by the co-operative society in which the suit flat is situated stood in the name of defendant nos.1 and 2. My attention was drawn to the said share certificate whereby membership of the said society came to be transfered in favour of defendant no.1 by entry dated 3rd : 3 : nms-194-09=.sxw January, 1988. This will go to show that from 3rd January, 1988 defendant no.1 is the member of the society, in which the suit flat is situate. The plaintiff had affirmed an affidavit dated 2nd September, 2002 mentioning therein that he had no objection to defendant no.2 transferring shares of the said society in favour of defendant no.1 in the year 1988. It is noticed that Co- operative society filed a dispute against defendant no.2 being Case No. CC VI 366 of 2002. In the said suit, present plaintiff has filed written statement duly verified on 3rd March, 2004 and in the said written statement specific admissions have been mentioned so as to admit that suit flat was for the benefit of defendant no.1 and that the membership in respect of the suit flat got transferred in favour of defendant no.1 in the year 1988. 3. It is noticed that Income Tax Department issued notice to plaintiff asking her to clear all the tax liabilities of Mahavir Singh. In reply to the said notice, letter dated 28th September, 2005 was sent by the plaintiff mentioning therein that late Mahavir Singh left properties at Jalandhar. This letter would clearly to go show that plaintiff communicated to the Income Tax Department that said Mahavir Singh had nothing to do with the suit flat. Income : 4 : nms-194-09=.sxw Tax Department addressed letter dated 24th November,2005 to the plaintiff to produce documentary evidence in regard to her statement made in the earlier correspondence. The plaintiff sent reply dated 21st December, 2005 and specifically enclosed therewith copy of the share certificate in regard to the suit flat which will mean that plaintiff heavily relied upon the entries in the share certificate to show that initially defendant nos. 1 and 2 were the members of the Society and subsequently defendant no.1 became the member of the Society. All these documents are annexed to the affidavit in reply filed by defendant no.1. Learned Counsel for defendant no. 1 contended that all these documents read together would clearly go to show that plaintiff has conceded that said Mahavir Singh had no right in regard to the suit flat and suit flat stood initially in the name of defendant nos. 1 and 2 and since January, 1988, in the name of defendant no.1. He had submitted that all the correspondence annexed to the affidavit-in-reply goes to show that plaintiff had conceded that she has nothing to do with the suit flat and according to learned Counsel for the defendant no.1, today plaintiff cannot be put her claim in regard to the suit flat. According to the learned Counsel for the defendant no.1, if this is the conduct of the : 5 : nms-194-09=.sxw plaintiff, Court should not accept the stand of the plaintiff that she has a share in the property left by Mahavir Singh. The plaintiff has failed to make out a case that on the day when Mr. Mahavir Singh expired, Mahavir Singh was owner of suit flat. Consequently, she has no right over the suit property and, therefore, injunction restraining defendants from dispossessing the plaintiff from the suit flat cannot be granted. 4. Learned Counsel appearing on behalf of the plaintiff in reply submitted that at the relevant time defendant no.1 compelled the plaintiff to execute the documents and alternatively plaintiff wanted to help defendant nos. 1 and 2 to sort out problems which were then prevailing and, therefore, document relied upon by defendant no.1 should not be accepted in favour of defendant no.1. 5. The explanation given by plaintiff to the various documents which are relied upon would clearly go to show that on the respective dates when the said documents were executed, plaintiff had full knowledge of the contents of the said documents. Explanation given by plaintiffs as to why she : 6 : nms-194-09=.sxw executed those documents cannot be accepted because since the year 1988 the plaintiff has made no grievance as to how the said documents were obtained from her. The plaintiff’s case that various documents were executed by her under force cannot be accepted in the year 2010 because plaintiff allowed the documents to remain on record, allowed all parties to act upon them and has not challenged those documents in any Court proceedings. In my view, affidavit-in-reply filed by defendant no. 1 clearly makes out a case that plaintiff on the date of the institution of the suit had no connection with the suit flat and, therefore, plaintiff has failed to make out prima-facie case that late Mahavir Singh was the owner of suit flat. If this be so, certainly, plaintiff cannot claim share in the suit flat. 6. Looking to the explanation given by the plaintiff in reply to the various documents it is abundantly clear that plaintiff was aware about various documents executed by her as well as by her mother. In the normal course, it was the duty of the plaintiff to disclose those documents in the plaint and give proper explanation which she has not done. This is also one aspect which would spell out the conduct of the plaintiff and this aspect : 7 : nms-194-09=.sxw has to be read in deciding the entire matter. The plaintiff is, therefore, not entitled to an order of injunction in terms of prayer clause (a) as set out in the plaint. 7. Plaintiff claims that she is in possession and residing with defendant no.1 in the suit flat and in the year 2006, she apprehended that defendant no.1 would dispossess her from the suit flat she instituted Suit No.3260 of 2006 and took out Notice of Motion No.2890 of 2006. The said suit came to be filed in the City Civil Court at Bombay and when said Motion No.2980 of 2006 appeared on board on 16th March, 2007, defendant recorded his no objection for granting relief in terms of prayer clause (a) of the notice of motion and the motion was made absolute. According to learned Counsel for the plaintiff by this order dated 16th March, 2007, defendant no.1 was prevented from dispossessing the plaintiff from the suit flat save and except by due process of law. Learned Counsel Mr. Mehta conceded that on account of passing of order dated 16th March, 2007, defendant no.1 was restrained from dispossessing the plaintiff from the suit flat save and except by due process of law. This would mean that on 16th March, 2007, plaintiff was : 8 : nms-194-09=.sxw occupying the suit flat along with defendant no.1. The present suit has been filed in the year 2008 and the motion is being heard in August, 2010. Learned Counsel for defendant no. 1 could not place on record any documentary evidence or any other statment by which the situation which was prevailing as on 16th March, 2007 has been altered. With this, one can accept the case of the plaintiff that as of today she has been residing in the suit flat along with defendant no.1. 8. The plaintiff has prayed for an order of injunction restraining defendants from disposing plaintiff from the suit flat. I have with the assistance of learned Counsel for the plaintiff perused the plaint. In the entire plaint there is no averment to suggest that defendants are likely to dispossess the plaintif from the suit flat. It is true that reference is made to certain complaint filed by plaintiff with the police alleging that defendant no.1 had assaulted her on many occasions. In my view, if it was the case of the plaintiff that defendants are likely to dispossess her from the suit flat, there ought to have been specific statement to that effect. : 9 : nms-194-09=.sxw 9. After having considered the entire plaint, I am not inclined to accept the submission on the part of the plaintiff that plaintiff had grounds to apprehend that on the date of the institution of the suit that defendant no.1 would dispossess the plaintiff from the suit flat. In view of this observation, plaintiff is not entitled to an order of injunction in terms of prayer clause (a). Even otherwise no allegations are attributed against defendant no.2 who happens to be the mother of the plaintiff. It must be mentioned that affidavit-in-reply is filed by defendant no.2 wherein certain allegations are made in para 3 as regards the manner in which defendant no.1 used to behave qua plaintiff and defendant no.2, no weightage can be given to the said affidavit for the purposes of accepting the case of the plaintiff. In view of the above, plaintiff’s notice of motion is required to be dismissed. Hence, following order is passed to dispose of the notice of motion. ORDER (i) Plaintiff’s motion is dismissed. There shall be no order as to costs. : 10 : nms-194-09=.sxw (ii) Learned Counsels for defendant nos. 1 and 2 respectively waive service of the writ of summons. They also seek time to file written statement on behalf of defendant nos. 1 and 2 respectively. Written statement be filed directly in the Office on or before 30th October, 2010. (R.Y.GANOO, J.)