1. The defendant is the elder brother of the plaintiff. The plaintiff and the defendant have purchased one flat each in a unit which is like a rowhouse being Unit No.5 of Premium Unit Cooperative Housing Society Ltd at Four Bungalows, Link Road, Andheri (West), Mumbai-400 053. The plaintiff is the owner of flat No.2 on the first floor of Unit No.5. The defendant is the owner of flat No.1 on the ground floor of Unit No.5.

2. Despite the separate and independent purchase, the parties have been residing and using the entire unit No.5 as a row-house together with their family members since 1990 when it was purchased. The parties have had disputes since the last few years. The parties are not able to reside together and use the entire unit No.5 jointly as before. Consequently this suit is filed restraining the defendant from using a part of flat No.2 on the first floor of unit No.5 by removing the belongings, materials and articles of the defendant and his family members therein from there and directing the defendant and his family members to shift permanently in flat No.1 on the ground floor purchased by the defendant. The suit is also in respect of a common garden, but with which this Court is not concerned at present.

3. The plaintiff has taken out the above notice of motion restraining the joint user as above and for directing the defendant to shift as stated above.

4. The notice of motion is also for preventing the entry by the defendant and his family members in flat No.2 on the first floor of unit no.5 belonging to and owned and purchased by the plaintiff.

5. This notice of motion is also in respect of the garden and the compound wall of unit No.5 as also CCTV cameras which are put in, for but which relief is not pressed in this notice of motion.

6. The parties being brothers have consistently endeavored to settle their dispute amongst the family members being their sisters prior to the filing of the suit. The Courts have similarly endeavored to settle the dispute between the parties after the filing of the suit.

7. It is the plaintiff's case that both the brothers purchased one flat each in unit No.5 in 1990 from the previous owner. They were both put in possession of the respective flats purchased by them in unit no.5. They have been transferred the share certificates by the society. The plaintiff has relied upon and produced the agreement of sale in his favour in respect of flat No.2 on the first floor of unit no.5 in the above society. The plaintiff has shown the payment of consideration made by him as reflected in the receipt clause in the said agreement. The payment is made by 3 demand drafts to the Vendor. The parties have used and occupied both the flats in unit No.5 jointly as family members.

8. Each flat consists of one living room, one bedroom, one kitchen and toilets.

9. Consequently the parties and their family members used the ground floor flat with the adjoining garden by making certain alterations. The parties admittedly have a common kitchen on the ground floor. The bedroom on the ground floor is converted into a kitchen to make a larger kitchen on the ground floor. The parties and their family members jointly used the said area as a common kitchen on the ground floor. Hence there is no bedroom in the ground floor flat No.1 of unit no.5 purchased by the defendant. The parties have also made certain alterations in the living room by removing one toilet and enlarging the area of the living room. Hence the ground floor flat has only one living room and a kitchen.

10. Consequently all the parties have their bedrooms in flat No.2 on the first floor of unit no.5 purchased by the plaintiff. The living room and the toilet adjoining the living room have been converted into a bedroom. The kitchen has also been converted into a bedroom. The verandah has been unauthorizedly enclosed to make yet another bedroom. The bedroom remains as such. Consequently there are four bedrooms in unit No.5, all on the f