Order 1

Order Details: Ex-parte Judgement
Pdf Text: S.C.Suit No. 1007/18. 1 Ex-parte Judgment (Exh.17).
MHCC010038152018
Presented on : 19-03-2018
Registered on : 05-04-2018
Decided on : 06-09-2022
Duration : 4 years, 5 months, 18 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
S. C. SUIT NO. 1007 OF 2018
EXHIBIT NO.17.
Jaysukh Velji Gutka, )
Adult, an Indian inhabitant, Age about: 60 years, )
Occ: Business, having address at )
A/1, Amarjeevan Society, Senapati Bapat Marg, )
Matunga (W), Mumbai – 400 016 )
1a. Mrs. Meena Jaysukh Gutka )
An Indian inhabitant, aged about 45 years, )
Occ: Housemaker )
1b. Miss. Shraddha Jaysukh Gutka )
An Indian inhabitant, aged about 26 years, )
Occ: service, )
1c. Mr. Deep Jaysukh Gutka )
An Indian inhabitant, aged about 24 years, )
Occ: student, )
All having address at A/1, Amarjeevan )
Society, Senapati Bapat Marg, Matunga )
(W), Mumbai – 400 016 )...Plaintiffs
Versus
1. Maganlal Velji Gutka, Adult, )
an Indian inhabitant, Age about: 72 years, )
-- 1 of 8 --
S.C.Suit No. 1007/18. 2 Ex-parte Judgment (Exh.17).
Occ: Business, having address at 53/1396, )
MIG Colony, Adarsh Nagar, Samasikshan )
Mandir Marg, Prabhadevi, Mumbai400025 )
2. Jayantilal Velji Gutka, )
an Indian inhabitant, Age about: 66 years, )
Occ: Business, having address at )
Sahi Sugand, 402, 4th floor, Vaishali Nagar, )
Dahisar (E), Mumbai – 400 068 )
3. Anilkumar Velji Gutka, )
an Indian inhabitant, Age about: 55 years, )
Occ: Business, having address at 53/1396, )
MIG Colony, Adarsh Nagar, Samasikshan )
Mandir Marg, Prabhadevi, Mumbai400025 )
4. Mrs. Kantaben Liladhar Gada, )
an Indian inhabitant, Age about: 64 years, )
Occ: Housewife, having address at )
H. No. 1680/26, Room no. 26, 3rd Floor, )
Oswal Residency, Rahmal Village, Thane, )
Bhiwandi – 421 302 )
5. Mrs. Hemlata Hasmukh Savla, )
an Indian inhabitant, Age about: 62 years, )
Occ: Housewife, having address at )
Room no.102, A Wing, Chincholi Society, )
1st floor, Chincholi Bunder Road, )
Malad (W), Mumbai – 400 064 )
6A. Bharat Fulchand Gosrani, )
an Indian inhabitant, Age about: 58 years, )
Occ: Business, having address at A – 303, )
Nirmal Kunj, Navghar Bundra Road, )
Near Naresh Steel, Bhayander (E), )
Dist: Thane – 401 105 )
6B. Mrs. Bhumi Hitesh Gada, )
an Indian inhabitant, Age about: 25 years, )
Occ: Housewife, having address at )
Vishwapanjal Cooperative Housing Society )
Ltd., D – 5, Plot no. 610, Sector no. 6, )
Charkop, Kandivali (W), Mumbai – 400067 )
-- 2 of 8 --
S.C.Suit No. 1007/18. 3 Ex-parte Judgment (Exh.17).
7. Mrs. Rashmi Rajan Vora, )
an Indian inhabitant, Age about: 51 years, )
Occ: Housewife, having address at )
Flat no. 2C, 2nd floor, High Peak Society, )
S.V. Road, Next to Petrol Pump, Siddharth )
Hotel, Bandra (W), Mumbai – 400 050 )
8. Mrs. Pushpaben Nagindas Carpenter, )
an Indian inhabitant, Age about: 62 years, )
Occ: Housewife, having address at )
349/A, Room no. 6, Ganpat Buddhaji Koli )
Chawl, Shri Ram Lane, Worli Village, )
Mumbai – 400 030 )
9. The Secretary, MIG Colony CHS Ltd, )
Adarsh Nagar, Prabhadevi, )
Mumbai – 400 025 )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 6th SEPTEMBER, 2022.
Shri Rakesh Agrawal, Advocate for the plaintiffs.
Defendants (Exparte).
JUDGMENT (EXPARTE)
1. This is a suit for partition and separate possession.
2. Case of the plaintiffs, in brief, is as under :
Defendants no.1 to 3 are real brothers and
defendants no.4, 5, 7 and 8 are real sisters of original plaintiff namely
Jaysukh. Defendant no.6A is husband and defendant no.6B is daughter
of deceased sister of original plaintiff namely Smt. Pragna Bharat
Gosrani. Defendant no.9 is the Cooperative Housing Society in which
the suit flat having No. 53/1396, MIG Colony, Adarsh Nagar,
Samasikshan Mandir Marg, Prabhadevi, Mumbai – 400025 admeasuring
-- 3 of 8 --
S.C.Suit No. 1007/18. 4 Ex-parte Judgment (Exh.17).
about 625 sq.ft. carpet is situated. Plaintiff's father Velji had purchased
the suit flat out of his hard earned money. Defendants no.1 to 3 are in
joint possession, use and occupation of the suit flat. At the time of
death of the plaintiff's father, both sides had cordial relation.
3. Since 2015, relations between the plaintiff and defendants
no.1 to 3 disturbed due to demand of partition made by the plaintiff.
Hence, the plaintiff has filed the suit for declaration that she and
defendants no.1 to 5, 7 and 8 are entitled to 1/9th share each in the
suit flat and defendants no.6A and 6B are jointly entitled to 1/9th share
in the suit flat. She also prayed for partition and separate possession of
her share in the suit flat. She made alternate prayer to appoint the
Commissioner and to sell the suit flat and to distribute sale proceeds as
per shares of the plaintiff and the defendants.
4. My learned predecessor passed the exparte order against
defendants no.1, 2, 4, 6B and 8 and 'No Written Statement' order
against defendant no.3 as per roznama dated 03/11/2018. Defendant
no.5 had appeared before the Court and supported to the case of the
plaintiff as mentioned in roznama dated 03/11/2018. Subsequently,
defendants no.6A and 7 appeared and supported the plaintiff as per
roznama dated 08/03/2019. My learned predecessor posted the matter
for evidence of the plaintiff as per order in roznama dated 22/01/2020.
5. Meanwhile, original plaintiff died on 01/10/2021.
Therefore, LRs of original plaintiff are brought on record as per order in
Chamber Summons No. 1810/2021 passed in roznama dated
25/11/2021. Plaintiff no.1A Meena filed evidence affidavit (Exh.8) and
proved documents filed with lists of documents (Exh.3 and 9) and they
-- 4 of 8 --
S.C.Suit No. 1007/18. 5 Ex-parte Judgment (Exh.17).
are marked as Exh.4, 5 and 10 to 15. The plaintiffs closed evidence
vide pursis (Exh.16). Heard learned counsel Shri Rakesh Agrawal for
the plaintiffs.
6. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Do the plaintiffs prove that they are
entitled to declaration of shares in the
suit flat as prayed ? In the Affirmative.
2. Do the plaintiffs prove that they are
entitled to partition and separate
possession of the suit flat as prayed ? In the Affirmative.
3. Do the plaintiffs prove that they are
entitled to alternate remedy of sale of
the suit flat and distribution of sale
proceeds as per shares of the plaintiffs
and the defendants ? In the Affirmative.
4. What order as to costs ? As per final order.
5. What order and decree ? Suit is decreed.
REASONS
AS TO POINTS NO.1 TO 4 :
7. On perusal of the record, it appears that contesting
defendants have not opposed the case of the plaintiff and the suit is
proceeded either exparte or without written statement against them.
PW 1 Meena has deposed as per contents in the plaint. She has given
-- 5 of 8 --
S.C.Suit No. 1007/18. 6 Ex-parte Judgment (Exh.17).
account of relationship between the parties. She has proved death
certificate of Velji (Exh.14) and death certificate of original plaintiff
Jaysukh (Exh.10). Similarly, death certificate (Exh.12) shows that
mother of original plaintiff namely Laxmiben also died in the year 1995.
Family tree (Exh.11) demonstrates that original plaintiff had three
brothers and five sisters. PW 1 Meena has proved office copy of the
notice dated 26/12/2019 (Exh.14) asking defendant no.1 to produce
original death certificate of Velji and share certificate of the suit flat, but
original documents are not produced in response to notice (Exh.14).
Similarly, share certificate issued by defendant no.9 (Exh.13) shows
that the suit flat was in the name of Velji Gutka. There is no evidence
to show that Velji had disposed off the suit flat during his lifetime or he
had bequeathed the same. Evidence of plaintiff Meena is unchallenged
and there is no reason to disbelieve the same. The plaintiffs have proved
their case with the help of oral and documentary evidence. Therefore,
they are entitled to get 1/9th share in the suit flat being heirs of
deceased Velji. As present plaintiffs are claiming through original
plaintiff Jaysukh, they are entitled to get 1/9th share in the suit flat
jointly. Similarly, defendants no.6A and 6B would get 1/9th share of
their mother in the suit flat jointly. Defendants no.1 to 5, 7 and 8 are
entitled to get 1/9th share each in the suit flat. While effecting
partition of the suit flat, difficulty may be faced due to large number of
persons who are entitled to inherit the suit flat. Therefore, alternative
relief prayed by the plaintiff can also be granted. The plaintiffs have
not claimed the cost of the suit. Therefore, parties can be allowed to
bear their own costs. Accordingly, I record my findings as to Points
No.1 to 3 in the affirmative. Hence, I pass the following order :
ORDER
1. S.C. Suit No. 1007/2018 is decreed.
-- 6 of 8 --
S.C.Suit No. 1007/18. 7 Ex-parte Judgment (Exh.17).
2. It is hereby declared that the plaintiffs jointly, defendants
no.6A and 6B jointly and defendants no.1 to 5, 7 and 8 are
entitled to 1/9th share in the suit property consisting of flat
having No. 53/1396, MIG Colony, Adarsh Nagar,
Samasikshan Mandir Marg, Prabhadevi, Mumbai – 400025
admeasuring about 625 sq.ft. carpet as defined in para 4 of
the plaint.
3. The suit property shall be partitioned by metes and bounds
and the plaintiffs shall be put in possession of their share of
the suit property.
4. Alternatively, the suit property shall be sold by public
auction and sale proceeds shall be distributed between the
plaintiffs and the defendants in proportion to their shares
in the suit property.
5. The Court Commissioner shall be appointed for effecting
partition or alternatively for sale of the suit property and
distribution of sale proceeds as above.
6. Parties shall bear their own costs.
7. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 06/09/2022. Mumbai.
1. Dictated online on : 06/09/2022.
2. Signed on : 06/09/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 7 of 8 --
S.C.Suit No. 1007/18. 8 Ex-parte Judgment (Exh.17).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
07/09/2022. 5.44 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 06/09/2022.
Judgment/Order signed by P.O. on 06/09/2022.
Judgment/Order uploaded on 07/09/2022.
-- 8 of 8 --