Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.492 OF 2019
IN
S.C. SUIT NO.8043 OF 1996
(HIGH COURT SUIT NO.3432 OF 1996)
Vivian daughter of Wilfred Fonseca and wife ]
Of Ravi Shetty ] … Plaintiff
Vs.
1. Bertha daughter of Wilfred Fonseca wife ]
Of Brandon Andredas ] ... Defendants
Appearances :
Mr. Aditya Kawle, Ld. Adv. for plaintiff.
Mr. Pankaj Shah, Ld. Adv. for defendant No.5 to 11.
Mr. Singh, Ld. Adv. for defendant No.20.
Mr. Vasant Dhawan, Ld. Adv. for defendant No.21.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 29th January, 2020
ORAL ORDER
1. Plaintiff took out this Notice of Motion to transfer this suit
to tag with Suit No.698 of 2013 pending before the Hon'ble Bombay
High Court and in alternative defendant No.5 to 11 and / or defendant
No.20 be directed to lead evidence in this suit.
MHCC01-001235-2019
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2. Perused Notice of Motion, affidavit in support of Notice of
Motion, reply of defendant No.20 and reply of defendant No.21,
rejoinder of defendant No.21. Heard plaintiff's advocate and Advocate
of defendant Nos.20 and 21.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether present suit can be transferred
to the Hon'ble Bombay High Court to
tag it with Suit No.698 of 2013 pending
before the Hon'ble Bombay High
Court ?
In the affirmative.
2. Whether defendant No.5 to 11 and/ or
defendant No.20 can be directed to lead
evidence in the present suit ?
In the affirmative.
3. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 3.
4. In brief, it is contention of the plaintiff that the suit is filed
for partition of agricultural land situated at Gorai Village. It is
specifically mentioned in the plaint that plaintiff and defendant No.1 to
19 are the descendants of one Jacin D'souza, who owned he suit
property. Defendant Nos.1 to 4 have not filed written statement to the
suit. Defendant Nos.5 to 11 have filed written statement to the suit.
Defendant Nos.5 to 11 as heirs of one earlier D'souza i.e. one of the
child of original owner Jacin D'souza claimed the entire suit property on
the basis of the purport Will Deed dated 19.02.1976. Defendant Nos.5
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to 11 subsequently filed suit No.698 of 2013 before the Hon'ble High
Court against the defendant No.20, the plaintiff, defendant Nos.2 to 4
and defendant Nos.12 to 19. The said suit is pending before the
Hon'ble High Court. Defendant No.20 is claiming absolute right in the
suit property on the basis of the purported Conveyance dated
29.01.1996 from defendant Nos.5 to 11. Defendant Nos.5 to 11 had
conveyed the suit property on the basis of the Last Will and Testament
of Elias D'souza dated 19.11.1976. Defendant No.5 filed Testamentary
Petition No.780 of 2007 and later on it is converted to Testamentary
Suit No.3 of 2008 to obtain letter of Administration of the property and
credits of the late Elias D'souza. The said Testamentary Suit is
withdrawn on 06.03.2017.
5. Defendant No.21 is made a party to this proceeding as per
Order passed by the Hon'ble Bombay High Court dated 02.09.2008 in
Appeal No.41 of 2008. Defendant No.21 claims that he became the
agricultural tenant and therefore is entitled to the suit property.
6. Then Presiding Officer of this Court passed Order at Exh.8
on 18.01.2017 and thereby directed to frame additional issue No.4
which is as under:
“Whether defendant Nos.5 to 11 prove that they
are absolutely entitled to the suit property on the
basis of Will Deed dtd. 19.11.1976, executed by
Elias D'souza inter alia bequeathing the entire
suit property in favour of his son late Earnest
D'souza?”
7. In brief, it is contention of the defendant No.20 that there
is collusion between the plaintiff and defendant Nos.5 to 11 that
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present Suit and the Suit No.698 of 2013 are completely different and
issues involved are no way connected with each other. It is duty of the
plaintiff to lead evidence first. Therefore, there is no question to direct
to defendant Nos.5 to 11 and / or defendant No.20 to lead evidence
first. Documents referred and relied upon plaintiffs are contradictory
to each other and they did not support the case of the plaintiff. Plaintiff
have filed false and fabricated documents. All the adverse contentions
are denied.
8. Plaintiff and defendant Nos.1, 12, 14, 15, 16, 17 and 19
had executed a conveyance dated 08.08.2012. Plaintiff and the
defendants had relinquished their right, title and interest in the
property. Plaintiff and defendants have no right in the suit property.
Plaintiff is no longer owner of the suit property in view of the alleged
Conveyance executed by the plaintiffs and the defendants. Therefore,
plaintiff be directed to withdraw the suit in view of the alleged
Conveyance executed between the plaintiff and the defendants. The
Suit and Notice of Motion does not survive.
9. Plaintiff filed rejoinder and denied contentions raised in the
reply and reiterated contentions raised in the Notice of Motion.
10. In brief, it is contention of the defendant No.21 that the
Notice of Motion is not maintainable. It be dismissed. In view of the
withdrawal of the Testamentary Suit No.3 of 2008 the defendant Nos.5
to 11 failed to prove the Will dated 19.11.1997. Defendant Nos.5 to 11
are not entitled to lead evidence first. The prayer of transferring the
suit to the Hon'ble High Court for tagging it with the High Court Suit
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No.698 of 2013 is already rejected by order dated 18.01.2017 by the
then Presiding Officer and therefore the prayer of transferring the suit
does not survive.
11. Perused copy of the Order passed in Application Exh.10 in
this Suit dated 18.01.2017 by then Presiding Officer of Court Room
No.33. Plaintiff had filed the said application for tagging the present
suit with the Suit No.698 of 2013 and to recast issues. The said
application Exh.10 is rejected in toto on 18.01.2017. It is observed in
para No.2 of the said order that the plaintiff failed to point out any legal
provision which impress the Court to order transfer of the present suit
to the Hon'be High Court.
12. No provision of law is brought to the notice of this Court in
respect of transferring suit to the Hon'ble High Court. According to the
plaintiffs defendant No.5 to 11 claim entire suit property on the basis of
purported Will dated 19.02.1976 and on that basis the said Suit
No.698 of 2013 is filed. This Suit is filed for partition of the Suit
property. I do not find that this suit is connected with Suit No.698 of
2013. Therefore, in the facts and circumstances the present suit cannot
be transferred to the Hon'ble High Court. Therefore, I do not find any
substance to transfer the suit as prayed for.
13. The Learned Advocate appearing for the plaintiff relied
upon Order 18 rule 1 of the Code of Civil Procedure. I have gone
through the said provision. As per the said provision the plaintiff has
the right to began unless the defendant admits the facts alleged by the
plaintiff.
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14. According to the plaintiff, defendant Nos.5 to 11 claiming
entire suit property on the basis of purported Will dated 19.02 1996.
Therefore, I do not find substance in the prayer Clause (b) of the Notice
of Motion and to direct defendant Nos.5 to 11 and / or defendant No.20
to lead evidence first. Therefore, I record my finding to point No.1 and
2 in the negative and point No.3 the Notice of Motion is rejected.
Hence following order:
ORDER
1. Notice of Motion No.492/19 is rejected.
2. Costs in cause.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 29/01/2020 City Civil Court, Gr. MUMBAI
Dictated on : 29/01/2020
Transcribed on : 07/02/2020
HHJ is on leave from 0622020
till 15022020.
Checked on : 17/02/2020
Signed on : 18/02/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.02.2020 at 12.15 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 29.01.2020
Judgment/order signed by P.O. on 18.02.2020
Judgment/order uploaded on 20.02.2020
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