1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3652 OF 2009 IN SUIT NO.2619 OF 2009 Pratap Himmatlal Maniar .. Plaintiff Vs. Dr.Ranjit Himmatlal Maniar and Anr. .. Defendants Mr.Virag Tulzapurkar, Senior Counsel, Mr.Y.M.Chaudhari i/b Ms.Reena Salunke for the plaintiff Mr.Y.C.Dhebar for defendant nos.1 and 2 CORAM : S.C.Dharmadhikari, J. DATE : August 25, 2010 P.C. : 1. The plaintiff by filing this Notice of Motion seeks appointment of Court Receiver for the 2 flats namely 17 and 18 and prays that he be appointed as Agent of the Court Receiver. However, this prayer is not pressed at this stage. 2. The relief that is pressed at this stage is prayer clauses (b) and (d) of the Notice of Motion wherein a mandatory order is sought so as to allow the 2 plaintiff to use and possess balance 50% area of flat no.18 situate at Vithal Court, 151, August Kranti Marg, Cumballa Hill, Mumbai 400 036 and the plaintiff and defendants be permitted to put a temporary wall whereby the flat nos.17 and 18 on the 6th floor of the building could be separated and family of the plaintiff and defendant be directed to use the same as particularly set out in the rough sketch plan (Exhibit V ) to the plaint. ‘ ’ 3. Mr.Tulzapurkar, the learned counsel appearing for the plaintiff submits that these reliefs are sought in furtherance and in aid of the final relief of a declaration that the plaintiff is the absolute owner of Flat No.17 and 50% owner of flat no.18 situated at Vithal Court Appartment. 4. He submits that a permanent injunction is also sought so as to enable the plaintiff to utilize his absolute share. Inviting my attention to the averments in the plaint, it is contended that the late mother of the plaintiff and defendant no.1 acquired flat no.16 situated on the 5th floor of the building known as Vithal Court situated at 151, August Kranti Marg, Cumballa Hill, Mumbai 400 036 on contractual tenancy basis from the erstwhile landlady viz. Mrs. Veena H. Mahimtura. Thereafter the landlady approached the late father of the plaintiff in the year 1967 and proposed that since there existed additional F.S.I. in respect of the plot of land on which the said building was constructed, she would be willing to allot one more flat out of the two flats, proposed to be constructed on the 6th floor of the said Building, provided the late father of the plaintiff rendered financial assistance to the said 3 landlady to construct the said 6th floor over the existing 5th floor. Accordingly, the construction loan was provided and details thereof are set out in the plaint. Thereafter, construction of 6th floor of the building was completed. The late father of the plaintiff took possession of the flat on the rear side being flat no.18 which came to be rented to him in December 1969. The landlady, Mrs.Veena H. Mahimtura s daughter Mrs.Sheela K. Dhanda with her ’ husband Kantibhai came to live in the newly constructed front side flat no. 17 on the 6th floor of the building. Copies of the letters at Annexures A ‘ and A1 according to the plaintiff demonstrate this fact. ’ 5. It is stated that the landlady and her daughter both left India in June 1970 and thereafter the flat no.17 came to be handed over to the plaintiff. Thus, the plaintiff was entitled to flat no.17 on the 6th floor of the building and the rear flat no.18 also on the same floor of the building which although belonging to the plaintiff s father, the plaintiff has a share therein. It is ’ stated that during the life time of the parents both the flats were used as one large unit. The case of the plaintiff therefore, is that he is the absolute owner of one of the flats and has a share on the basis of the father s title ’ in the other flat. Further, it is contended that the mother has also expired and the plaintiff would be entitled to the mother s share, in law. It is ’ stated that the Registration proposal of the Co-op.Housing Society was formulated in the year 1974 wherein an Ad-hoc Committee purchased the building from the erstwhile landlady and thereafter Co-operative Housing Society was registered. The Architect who measured the areas of the flats 4 of the new Society, thus formed, numbered the flats in the building including the ground floor as flat no.1 and first floor as flat no.2, which till then were not numbered and were called ground floor and first floor and that is how there was an alteration in the numbers of the flat nos.17 and 18 on the 6th floor. 6. Inviting my attention to the list of members, copy of which is annexed to the plaint, Mr.Tulzapurkar submits that front side flat no.17 is shown as no.19 and rear side flat no.18 is shown as flat no.20. Mr.Tulzapurkar submits that presently, the plaintiff is using the rear side flat and the front flat is in possession of defendant no.1. On account of the differences and disputes between the family members, the arrangement prevailing of use of kitchen and living room commonly by them, frequently creates problems. There have been instances where the matters have gone to the police. The family members of both the plaintiff and defendant no.1 cannot reside in this atmosphere. Therefore, till the suit is disposed of and without prejudice to the rights and contentions of both sides, an arrangement can be carved out wherein the kitchen can be separately provided for both brothers instead of only one kitchen that is available today. Two kitchens can be made without any obstruction to the living areas. This kitchen which has to be an additional one can be carved out as per the sketch handed in. Therefore, it would be desirable and in the interest of justice and considering that no prejudice would be caused, an arrangement proposed by the plaintiff be permitted. The plaintiff s rights to the premises in question have been ’ 5 prima facie established according to Mr.Tulzapurkar by producing the relevant documents, some of which are annexed to the plaint. Further, Mr.Tulzapurkar submits that the stand taken by defendant no.1 is that the plaintiff is entitled and was using the flat as per the records of the Society. That the father was a tenant and therefore, defendant no.1 cannot claim anything save and except whatever has been left behind by the father. He can claim the right of residence in accordance with law but the absolute title is something which only the plaintiff is entitled to. My attention is invited to the annexures to the plaint in this behalf and further, it is contended that the court has ample powers even at this stage to make an arrangement proposed by the plaintiff. 7. On the other hand, the learned advocate appearing for defendant no.1 who is the contesting defendant invites my attention to the written statement and the affidavit in reply and submits that defendant no.1 is not admitting any of the pleas raised in the plaint and there is a serious dispute with regard to the absolute title claimed by the plaintiff. On the other hand, what the parties are entitled is as per the record of the Society and that are nothing but the rights flowing from the deceased father. Today, none of the documents are admitted. Further, it is contended that once the plaintiff admits that the flat on the front portion is a larger area than the flat at the rear portion then in the garb of having separate kitchen facility, the plaintiff claims an area in possession of the defendant no.1. In other words, he is claiming an area which falls within the front side flat portion and unless 6 and until title is established and proved in accordance with law, the plaintiff cannot get any such reliefs as that would amount to conferring right upon him without the case set up in the plaint being proved. There are disputes pending in the Cooperative Court wherein the plaintiff has proceeded against the Society for correction of records and desires that his entitlement to the front portion flat be held to be proved at this stage. During the pendency of the suit and the dispute in the Co-operative Court wherein the issues overlap, this court should not grant him the interim relief, as claimed for that would be granting final reliefs, without holding a Trial. 8. With the assistance of the learned counsel appearing for both the sides, I have perused the plaint and the annexures thereof including the sketch on which heavy reliance is placed by Mr.Tulzapurkar. I have also perused the written statement and the relevant paras in the affidavit in reply. While it is true that this court has ample powers even at the interlocutory stage to make appropriate arrangements for separate residence or partition incase it becomes impossible for the joint owners to reside together and if it is necessary to preserve and protect their respective rights and entitlement, yet, in my view no case is made out for such a relief in the instant suit. All that has been alleged by the plaintiff is that the Architect who measured the area of flats in the Society, which was formed, numbered the flats in building including the ground floor as flat no.1 and first floor as flat no.2 which till then were not numbered and were called ground floor and first 7 floor. So also the old numbering starting from the 2nd floor onwards as flat nos.1, 2 front side, 3, 4 back side and so on till the sixth floor was allegedly altered. Copy of the letter dt.18.2.77 of the Architect has been produced in that regard. Yet, the plaintiff will have to show by leading evidence that the deed of agreement executed between the landlady and promoters of the Society formed with regard to the Assessment of the Lease of the land shows that the plaintiff was the intending member in respect of flat no.17 so also signed by the plaintiff and father, Dr.H.N.Maniar in respect of flat no.18. The plaintiff has himself come with the case in para 12 of the plaint that he is shown as intending member in respect of flat no.17. He has relied upon the list of intending members. Thereafter, he has stated that though the names of the plaintiff and his late father were reflected in the Register and record of the Society at the stage of its formation being holders of two separate flats i.e. the flat no.17 belonging to the plaintiff and the flat no.18 belonging to the said Dr.H.N.Maniar, the said Society had due to inadvertence or otherwise and probably being influenced by the fact that Dr.H.N.Maniar was staying in the front side flat and that the entire family were using the said flats jointly and living in harmony and respect and love, had erroneously issued Share Certificates, depicting thereby that Flat No.18 as belonging to the plaintiff and flat no.17 belonging to the late father. What has been alleged is that minor disputes arose after the demise of the father in October 1992. All the while the argument appears to be that flat no.17 belongs to the plaintiff and that is larger in area and flat no.18 belongs to the late father and that is a lesser area. The plaintiff is residing 8 in a flat of a lesser area. He does not dispute that in his flat he could set up a facility of kitchen for cooking food, if at all, there is any problem and the differences and quarrels are continuing. He desires at this stage that a portion from flat no.18 be carved out so as to enable him to have kitchen or other facilities and he may not be required to share the kitchen and living room with defendant no.1. Unless and until the entitlement is proved as alleged in the plaint that would not be possible at this stage. Only on the basis of some statements made in the affidavit in reply and relying upon the stray assertions in the written statement of defendant no.1 it will not be possible to hold that the plaintiff has proved prima facie that the larger flat was always meant for him and occupied by him. His case of entitlement of the larger area but occupying a lesser area is yet to be proved. That the area is lesser but it is still possible to carve out a separate kitchen facility. This is not a fit case for granting relief particularly a mandatory one. That would amount to accepting the case of the plaintiff without oral and documentary evidence being led by the parties. Further, there is no case made out of intervention of the court because it is impossible to reside in the manner the parties are presently residing in their portions. 9. As a result of the above discussion, notice of motion fails and accordingly, is dismissed. All observations made as above shall not influence the court while trying the suit. Needless to add that what arrangement has been presently prevailing at site namely the plaintiff using the kitchen facilities 9 and living room in common can continue in the same manner. The denial of interim relief as prayed by the plaintiff does not deprive him of this facility. ( S.C.Dharmadhikari, J )