Dismissed

Deepak Natwarlal Parekh v. Tejas Natwarlal Parekh

Bombay HC1 Sept 2014APP/450/2014

Case brief

AI extract

What is this about?

The High Court of Bombay disposed of an appeal challenging a lower court order in a partition suit between brothers involving a cooperative housing society flat. The court directed the appellant to vacate the owner-respondent's flat, except for a specific adjoining room, as an interim arrangement during suit pendency.

What did the court decide?

Appellant directed to vacate respondent-owner's flat by 15 September 2014, except the room admeasuring 10' x 35' above the parking area.

Deepak Natwarlal Parekh Vs Tejas Natwarlal Parekh — Partition | Bombay HC (2014)

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APPL 363-2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL (L) NO. 363 OF 2014 IN NOTICE OF MOTION (L) NO. 1827 OF 2013 IN

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SUIT NO. 5 OF 2014

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Deepak Natwarlal Parekh .. Appellant V/s.

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Tejas Natwarlal Parekh .. Respondent

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Mr. Birendra Saraf, with Mr. S.B. Pawar i/b S.K. Legal Associates for the appellant.

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Mr. J. Reis, Senior Advocate with Mr. R.N. Kachare i/b Mr. Ameet A. Palkar for the respondent.

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Mr. S.S. Deshpande, Court Receiver, present.

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CORAM: MOHIT S. SHAH, C.J. & M.S. SONAK, J.

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DATE : 1 SEPTEMBER 2014

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P.C.:

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This appeal is directed against the order dated 7 May 2014 of the learned Trial Judge of this Court on the respondent – plaintiff's notice of motion.

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The appellant – defendant is the elder brother of the respondent – plaintiff. The plaintiff and the defendant purchased one flat each in Unit No.5 of Premium Unit Co-operative Housing Society Ltd., Andheri (West), Mumbai. The plaintiff is the owner of

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Flat No.2 on the first floor. The defendant is the owner of Flat No.1 on the ground floor.

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Despite the purchase of two independent units by the brothers, the parties were residing and using the entire building (Unit No.5) as a row house together with their family members since its purchase in 1990, with the result that only the kitchen on the ground floor was being used as common kitchen by all the family members.

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For the last few years, the parties started having disputes and are not able to reside together and use the entire building jointly as before. Hence the respondent – plaintiff filed the present suit to restrain the appellant – defendant and his family members from using part of Flat No.2 on the first floor and to use only the premises on the ground floor purchased by the defendant. The plaintiff also prayed for restraint against the joint user and for directing the defendant to shift to the ground floor.

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After hearing the parties, the learned Trial Judge passed the following order on the notice of motion.

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“ 1. The defendant shall forthwith allow the plaintiff to enter upon and use the kitchen on the ground floor flat No.1 of Unit No.5 of Premium Unit Cooperative Housing Society Ltd at Four Bungalows, Link Road, Andheri (West), Mumbai 400053.

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2. If the defendant does not allow the plaintiff to use the kitchen in the ground floor flat the defendant shall not enter upon any portion of the first floor flat no.2 in unit no.5 of Premium Cooperative Housing Society Ltd, Mumbai purchased by the plaintiff.

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3. This matter is most amenable to settlement.”

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The learned counsel for the appellant – defendant submitted that the defendant had paid consideration for Flat No.2 on the first floor and also for Flat No.1 on the ground floor and, therefore, the defendant is entitled to continue to use one room on the first floor as a bedroom.

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The learned counsel for the plaintiff submitted that Flat No.2 on the first floor was purchased by the plaintiff from his own funds and the share certificate issued by the Co-operative Housing Society for the said flat is in the name of the plaintiff and, therefore, the plaintiff is entitled to use the entire first floor and the defendant has no right to have access to any portion of Flat No.2 on the first floor.

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The learned counsel for the defendant submitted that the living room on the first floor is being used as bedroom by the defendant for the last many years and, therefore, during pendency of the suit, the said arrangement should not be disturbed.

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APPL 363-2014

Having heard the learned counsel for the parties and having regard to the admitted fact that Flat No.2 on the first floor in Unit No.5 of Premium Unit Co-operative Housing Society Ltd. is in the name of the plaintiff and the share certificate for the said flat is also issued by the said Society to the plaintiff, the plaintiff is prima facie entitled to use the entire Flat No.2 on the first floor and the defendant is entitled to use the entire Flat No.1 on the ground floor. However, having regard to the fact that both the brothers were earlier using the entire building as common building for their families, we suggested to learned counsel for the parties to work out a reasonable formula, and suggested to the plaintiff (younger brother) to show some goodwill gesture to his elder brother.

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The learned counsel for the respondent – plaintiff submits that in deference to the suggestion made by the Court, the plaintiff is agreeable to the appellant – defendant using the room on the first floor admeasuring 10' x 35' above the parking area, over and above the entire ground floor flat, as an interim arrangement during pendency of the suit and without prejudice to the rights and contentions of the plaintiff in the suit.

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The learned counsel for the defendant, however, submits that the defendant would like to retain the living room in Flat No.2 on the first floor which he has been using for last so many years and the plaintiff may occupy the room on the first floor admeasuring 10' x 35' above the parking area.

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APPL 363-2014

The learned counsel for the plaintiff, however, submits that there is no sanction granted by the Municipal Corporation for constructing the said room admeasuring 10' x 35'. Since it is not a part of the sanctioned building plan, the plaintiff would not like to take any risk by occupying the said room admeasuring 10' x 35' and that the defendant has been occupying the said area ever since its construction.

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Having heard the learned counsel for the parties and having regard to the fact that the respondent – plaintiff is the owner of Flat No.2 on the first floor and that the plaintiff is agreeable for permitting the appellant – defendant to use the room admeasuring 10' x 35' above the parking area, we direct that the appellant – defendant shall vacate the area of Flat No.2 on the first floor, (except the room admeasuring 10' x 35' above the parking area) and shall shift his belongings as expeditiously as possible and, in any case, by 15 September 2014.

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The appeal is disposed of in the above terms. There shall be no order as to costs.

CHIEF JUSTICE

(M.S. SONAK, J.)

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Deepak Natwarlal Parekh v. Tejas Natwarlal Parekh

Case brief

What is this about?

What did the court decide?

Deepak Natwarlal Parekh v. Tejas Natwarlal Parekh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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