1 nm-2039 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.2039 of 2008 IN Suit No.1768 of 2008 Mrs.Asha A. Kapoor & anr. .. .. Plaintiffs v/s. Mr.Rakesh Kapoor & ors. .. .. Defendants Mr.Zubin Behramkamdin with Mr.Dhiren H. Shah & Ms.P. Bajpai for Plffs. Mr.Pradeep Sancheti with Mr.Yash Kapadia & Mr.Mitesh Naik for Defts. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 5th August, 2010 P.C. : 1.The parties are family members. There are disputes with regard to the occupation of certain rooms in the residential flats. Two flats on the same floor of one building Jyoti Darshan being flat Nos.801 and 802 are occupied by members of the families of the parties. Under an unregistered arrangement executed between the parties dated 14.12.1983, the entire family including other family members agreed to make a settlement of certain properties by and between themselves. There were four groups of families. The Plaintiffs group 2 nm-2039 was Group-D and the Defendants group was Group-C. The Plaintiffs Group-D was allotted flat No.801 with the garage. The Defendants Group-D was allotted flat No. 802 with the garage. This was to be of their respective ownerships. Accordingly, the share certificates of the Society came to be transferred and made out in the name of Plaintiff No.1 for the shares in respect of flat No. 801. The Plaintiffs commenced paying maintenance to the Society in respect of flat No.801, for which the bills came to be issued by the Society. The Plaintiffs claim rights in respect of flat No.801. The flats are on either side of the common passage abutting the Lift and the staircase in the building. They are shown in the sketch plan, Exhibit-F to the Plaint. 2.However, the parties being family members, the Defendants being the nieces and nephews (and their families) of the Plaintiffs, the parties lived by way of a further oral arrangement between themselves in specified rooms of both the flats on either side of the passage. The passage is not enclosed and does not form a part of the flats. Flat No.801 is shown to be slightly smaller than flat No.802. It has four bedrooms, one bathroom and a store room with a passage. Defendant Nos.1 and 2 live in one bedroom. Defendant Nos.3 and 4 lived in another bedroom. The Plaintiffs live in the third bedroom and their daughters in the 3 nm-2039 fourth bedroom. The daughters are stated to be married but they live in that room when they visit the Plaintiffs. 3.In flat No.802, Defendant Nos.6 and 7 occupy one bedroom. Defendant Nos.8 and 9 occupied the other bedroom. There is a common kitchen and a common drawing and dinning room. The common drawing and dinning room is said to have been extended by incorporating one bedroom therein also and making it L shaped. 4.It is the case of the Plaintiffs that this arrangement continued until some time prior to the suit when the disputes commenced because Defendant Nos.8 and 9 started to claim to occupy the bedrooms in flat No.801. 5.The Plaintiffs also claim that Defendant Nos.3 and 4 have locked their bedrooms in flat No.801, which otherwise has come to the share of the Plaintiffs. They further claim that Defendant Nos.8 and 9 have locked their bedrooms in flat No.802. Defendant Nos.1 and 2 are the parents of Defendant Nos.6 and 7. Defendant Nos.3 and 4 are the parents of Defendant Nos.8 and 9. Defendant Nos.8 and 9 are the children who are the nieces and nephews of the Plaintiffs. The entire family of Defendant Nos.3, 4, 8 and 9 being the parents of the children have left the suit flat and taken up another 4 nm-2039 residence. They have kept their two bedrooms locked, one in flat No.801 and the other in flat No.802. It is strange that any of the family members of Defendant Nos.3, 4, 8 and 9 seek to come to in flat No.801 and seek to use any part of that flat. The Plaintiffs justifiably claim total lack of bona fides in this act. 6.Similarly Defendant Nos.6 and 7, who are the children of Defendant Nos.1 and 2, also claim to occupy and use flat No.801. This is presumably on the premise that their parents have one bedroom in flat No.801. 7.The case of interference with the Plaintiffs possession and the consequent nuisance purposely is, therefore, made out by the Plaintiffs. It is one matter that the members of two or more families live harmoniously in all parts of the two flats which they occupy and in respect of which each member has ownership of one flat. It is quite another matter that keeping two bedrooms locked, the parties at whatever time come into the flat otherwise belonging to the Plaintiffs and cause interference with their possession. 8.The Plaintiffs have relied upon a letter written by Defendant No.3 that he has been advised to temporarily move from the suit premises to the premises of his son, 5 nm-2039 Defendant No.8, and hence, all his belongings are left behind and locked in the bedrooms in flat Nos.801 and 802. This is a unique and strange letter written by one of the occupants of a flat in the Society to its Managing Committee. It is esoteric why such a letter would at all be written except to create evidence. The Managing Committee of the Society would not be interested in which room of which flat in the Society is locked, temporarily or otherwise. The letter dated 4.2.2009 is relied upon by both the parties. The Plaintiffs have relied upon it to show that the bedroom of Defendant Nos.3 and 4 in their flat is locked. The Defendants have relied upon the said letter to show that Defendant No.3 temporarily moved out of the flat. The moving out of the flat took place in February 2009. Defendant No.3 has yet not moved back in. The temporary period has thus far exceeded beyond 1 & ½ years. His son, Defendant No.8, has himself locked the bedroom in flat No.802 and moved out. The said letter shows that Defendant No.8 has moved out permanently where the father has moved out temporarily. Yet Defendant No.4, his wife and Defendant No.9, his daughter are also not residing in either flat No.801 or 802. Two bedrooms have been kept locked by this family. Such attitude is unbecoming of a family member specially family members who claim to live jointly as members of one undivided family or as co-owners. 6 nm-2039 9.The execution of the family arrangement is not disputed. In fact, the Defendants claim rights in respect of flat No.802. The Plaintiffs do not interfere with their possession or ownership therein. Once the execution of the family arrangement is not disputed and both the parties are entitled to almost an equal and equitable share therein, that share would devolve upon the Plaintiffs and the Plaintiffs would be entitled to that share at the time of the hearing. Consequently, a prima facie case for grant of interim relief specially in respect of peaceful occupation and possession of the suit flat is seen to be made out. 10.The resistance to the grant of such relief is disputed on the premise that the possession prevailing as at the time of the filing of the suit cannot be altered pending the suit and the grant of the relief of injunction against any of the Defendants from occupying any portion of the Plaintiffs flat No.801 would tantamount to the same relief being granted in the Notice of Motion as prayed for in the suit. 11.It may be mentioned that the current position is not the position which would be the position as of right claimed by the Plaintiffs. It is not the Defendants case that there has been a novatio between the parties 7 nm-2039 or that the family arrangement came to be altered for giving all the parties rights in both the flats. The Defendants case also is that it was a oral arrangement for actual occupation despite acceptance and knowledge that both the parties  the Plaintiffs on the one hand and the Defendants on the other - are otherwise entitled to proprietary rights in respect of one separate independent distinct flat each. If the Defendants had claimed that the arrangement between the parties for actual occupation is the entitlement of the parties, then the argument that the same relief, as prayed for in the suit, which is disputed by the Defendants, cannot be granted in the Interim Application would have some substance. When it is an admitted position that both the parties are entitled to one flat each upon such admission itself, in fact, a judgment on admission can be passed under the provisions of Order XII Rule 6 of the Code of Civil Procedure. That would, in fact, put an end to all the needless disputes since both the families would actually obtain their respective entitlements. 12.It is further argued on behalf of the Defendants that in terms the parties have co-ownership rights in respect of both the flats together. 13.It is contended that though there are two flats in the 8 nm-2039 Society and two share certificates issued in respect of each of them, yet there is in terms one ownership of the entire family. This contention is contrary to the documentary evidence and hence the contention following therefrom that because the two flats together are the co-ownership properties of the two families together, the Plaintiffs must sue for partition cannot be accepted. 14.Mr.Sancheti on behalf of the Defendants contended that the injunction prayed for is in effect the mandatory injunction to occupy only flat No.802. Prayer (a) in the Notice of Motion is otherwise. In fact, the Plaintiffs have applied for an order allowing them to construct a kitchen in their own flat. Prayer (d) in the Notice of Motion requiring the Defendants not to obstruct the Plaintiffs from occupying flat No.802 is only because the common kitchen is in flat No.802. 15.Counsel on behalf of the Plaintiffs has stated that if the Plaintiffs can construct their own kitchen in their flat No.801, they would not enter upon flat No.802 and have made a statement in that behalf on affidavit. 16.Mr.Sancheti on behalf of the Defendants drew my attention to the judgment in the case of Bharat Petroleum Corporation Ltd. vs. Hari Chand Sachdeva & 9 nm-2039 ors., AIR 2001 Delhi 307 to show the scope for grant of mandatory injunction which he claims the injunction in prayer (a) to be. He claims that no state of things can be altered by virtue of any injunction restraining a party from occupying or possessing a part of the property pending the suit. The injunction claim is only to prevent damage to the party agreed. It does not establish a new state of things and it is, in fact, a prohibitory temporary injunction. 17.Mr.Sancheti also relied upon the judgment in the case of Tek Bahadur Bhujil vs. Debi Singh Bhujil & ors., AIR 1966 SC 292 showing when a family arrangement requires registration. Indeed, if a property belonging to one family member is transferred to and acquired by another family member pursuant to which there is albeit notional transfer of the flat and the share certificate from one to another, the family arrangement would certainly require registration. The aspect of transfer of the flats by and between the family members would be considered at the final hearing of the suit, if disputed. In any event, in this case, there has been an exchange of the flats. 18.The right of the Defendants in flat No.802 allotted to them, under the unregistered family arrangement is not disputed and rather claimed despite non-registration. 10 nm-2039 The Plaintiffs have stated that they do not press for any rights in respect of flat No.802. 19.The action of the Plaintiffs is not only to abide the family arrangement but to buy peace. Under the admitted family arrangement, there is no reason why both the parties should not get such deserved peace and hence, the order: (i) The Defendants are restrained from entering upon or occupying any portion of flat No.801. The Plaintiffs shall not enter upon or occupy flat No.802. (ii)The Plaintiffs shall be entitled to construct the kitchen in flat No.801. (iii) Injunction in terms of prayers (c) and (d) is not pressed. (iv) The Advocate on behalf of the Defendants applies for time to remove the belongings of the Defendants from flat No.801. Time is granted for a period of four weeks to remove the belongings. (v) The Defendants have been represented in the suit by their Advocates since 13.6.2008. Yet the Written Statement is not filed. The Defendants shall file 11 nm-2039 their Written statement within 30 days, failing which the suit shall have to be decreed ex-parte. (SMT.ROSHAN DALVI, J.)