Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Mahesh B. Chaudhary - Appellant
Versus
Radha Sadan Co-operative Housing Society Ltd. and Ors. - Respondents
Notice of Motion Nos. 735 of 2016 and 1559 of 2015 in Suit No. 750 of 2015
Decided On : 05-02-2019
Civil Procedure Code,1908 – Section 9A Order XII Rule 6 - Maharashtra Co-operative Societies Act, 1960 - Sections 91 to 96 - Rent Act - Section 28 – Suit for premises - Recovery of possession - Plaintiff has filed a suit inter alia praying for an order and decree to hand over vacant and peaceful possession of suit flat to plaintiff and prayed that in all record of the defendant society, plaintiff be shown as owner of suit flat and seeking temporary order and injunction against defendant their servants and agent from creating any third party rights for redevelopment or otherwise in respect of the suit flat, for appointment of Court Receiver and for an order and direction against defendant to pay an amount compensation and further amount or as per market rent with respect to future compensation till defendant society hands over suit flat to plaintiff along with interest @18% from date of filing suit till realisation - Plaintiff has also prayed for damages along with interest @18% from date of filing suit till realisation, for civil contempt made by defendant for disobeying directions in letter of administration issued by this Court - By consent of parties, both notices of motion are heard together and were being disposed of by a common order - Whether this court has jurisdiction to try and entertain said dispute and pass an order therein – Held, learned counsel appearing for defendant could not dispute that this court has granted Letters of Administration in favour of petitioner in respect of property and credits of the deceased in Petition - Caveat filed by the society in said testamentary petition was admittedly which order attained finality - In court view, defendant society thus even otherwise could not have claimed any right, title or interest in flat either as owner or by virtue of alleged adverse possession or as the tenant/gratuitous licensee in teeth of various orders passed by Co-operative Court, Maharashtra State Co-operative Appellate Court and order passed by this court in consent terms - Plaintiff has thus made out a case for grant of relief insofar as possession of suit flat is concerned in this notice of motion under Order 12 Rule 6 of the Code of Civil Procedure, 1908 on basis of various admissions in pleadings and various orders binding on parties insofar as judgment for recovery of possession is concerned by applying principles laid down by Honble Supreme Court in case of Raveesh Chand Jain (supra) - Court thus inclined to grant relief sought in Notice of Motion this relief cannot be considered by this court at this stage and said prayer clause (d) can be considered by this court at stage of hearing of suit on its own merits - Notice of Motion is also disposed of – Order accordingly.
JUDGMENT :
R.D. Dhanuka, J.
1. By the Notice of Motion No. 735 of 2016 filed under Order XII Rule 6 of the Code of Civil Procedure, 1908, the plaintiff seeks decree of possession of flat bearing No. Flat No. 17, 1st floor, Radha Sadan C.H.S. Ltd. situated on Plot No. 99, Sion (East), Kingsway, Mumbai-400 022 and further direction that the name of the plaintiff be shown as the owner of the said flat in all the records of the defendant no. 1 society based on the alleged admissions of the defendants.
2. Notice of Motion No. 1559 of 2015 is filed by the plaintiff inter alia praying that the defendant no. 1, their servants and agents be restrained from creating any third party rights, from carrying out any redevelopment or otherwise in respect of the suit flat, for mandatory order and injunction against the defendant no. 1 to pay an amount of Rs. 4,000/- towards monthly compensation to the plaintiff for the suit flat, for appointment of Court Receiver with a direction to hand over possession of the suit flat to the plaintiff and allow the plaintiff to occupy the flat as an agent of the Court Receiver.
3. The plaintiff has filed a suit inter alia praying for an order and decree to hand over vacant and peaceful possession of the suit flat to the plaintiff and prayed that in all the record of the defendant no. 1 society, the plaintiff be shown as the owner of the suit flat and seeking temporary order and injunction against the defendant no. 1, their servants and agent from creating any third party rights for redevelopment or otherwise in respect of the suit flat, for appointment of the Court Receiver and for an order and direction against the defendant no. 1 to pay an amount of Rs. 14,40,000/- towards compensation and further amount of Rs. 40,000/- per month or as per the market rent with respect to future compensation till the defendant no. 1 society hands over the suit flat to the plaintiff along with interest @18% from the date of filing the suit till realisation. The plaintiff has also prayed for damages of Rs. 24,00,000/- along with interest @18% from the date of filing the suit till realisation, for civil contempt made by the defendant nos. 1 to 3 for disobeying the directions in the letter of administration issued by this Court. By consent of parties, both the notices of motion are heard together and were being disposed of by a common order.
4. It is the case of the plaintiff that the grandmother of the plaintiff Smt. Shamibai Issardas Punwani was the member of the defendant no. 1 society and was an owner/member in respect of the flat No. 17 in the said society. The said Smt. Shamibai Punwani and her husband did not have any issue. It is the case of the plaintiff that the said Smt. Shamibai Punwani and her husband adopted the father of the plaintiff who was the Nephew of the said Smt. Shamibai Punwani. Father of the plaintiff thereafter assumed her surname Chaudhary which was the maiden surname of Shamibai instead of his adopted surname Punwani. Father of the plaintiff continued to stay with his aunt and uncle along with his wife.
5. It is the case of the plaintiff that the said Smt. Shamibai Punwani had executed a Will dated 4th January 1968 thereby bequeathing the suit flat in favour of the plaintiff by giving life interest in the said flat to her late husband. The said Smt. Shamibai Punwani died on 28th January 1972. Her husband Mr. Issardas Punwani died on 21st June 1972. It is the case of the plaintiff that after demise of the said Smt. Shamibai Punwani and her husband Mr. Issardas Punwani, in terms of Will dated 4th January 1968, the plaintiff became owner of the suit flat. At that time, the flat was in possession of a tenant namely Mr. A. Rajam. The parents of the plaintiff used to collect rent from the said Mr. A. Rajam. The said Mr. A. Rajam paid rent to the parents of the plaintiff from June 1972 to September 1974 and thereafter stopped paying the rent. Parents of the plaintiff used to pay the maintenance to the defendant n
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
