Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment ..1..
S.C. Suit No.1708 of 2018
MHCC010076532018
Presented on : 27-06-2018
Registered on : 12-07-2018
Decided on : 17-02-2025
Duration : 6 Yr, 7 M, 20 D.
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
SUIT NO. 1708 of 2018.
Mrs. Anita Anand Jogi.
Aged 46 years, Occu.: Housewife,
Indian Inhabitant of Mumbai,
Residing at 42/2, Sindhi Society, Chembur,
Mumbai – 400 071. …Plaintiff.
Versus
1. Mr. Anil Aithappa Jogi.
Aged 43 years, Occu.: Service,
Indian Inhabitant of Mumbai,
Residing at Flat No. 1 Shiv Ratan,
Co-Operative Housing Society Ltd.,
Plot No.45, Land Mark, B.P.Road,
Sion (East), Mumbai – 400 022.
2. Mr. Ashok Aithappa Jogi.
Aged 54 years, Occu.: Business,
Indian Inhabitant of Mumbai,
Residing at Flat No.7, Aarohi Co-operative,
Housing Society Ltd., Plot No.4 and 6,
Chheda Nagar, opp. Gymkhana,
Chembur, Mumbai – 400 089.
3. Mr. Arun Aithappa Jogi,
Aged 49 years, Occu.: Service,
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S.C. Suit No.1708 of 2018
Indian Inhabitant of Mumbai
Residing at 54/1330, Shiv Sagar,
Co-operative Housing Society Ltd.,
Kannamwar Nagar No.1, Vikhroli,
(East), Mumbai – 400 083. ...Defendants.
Appearance
Advocate Harish Pawar for Plaintiff.
Advocate Ashish Gatagat for defendants.
CORAM : HIS HONOUR JUDGE
R.V. Bhakta
(COURT No.: 2)
DATED : 17th February, 2025.
J U D G M E N T
This is a suit for partition and separate possession.
2. The plaintiff has filed the present suit against the defendant
for partition and separation of a property i.e. Flat No. 1, Shivratan Co-
operative Housing Society, Plot No.45, Sion, (East), Mumbai - 400 022
more particularly described in para No. 3 of the plaint.
The brief case of the plaintiff as under :
3. The plaintiff is a sister of defendants. The suit property is
owned by mother of plaintiff and defendants deceased Leela Aithappa
Jogi who expired on 22.10.2000. After the demise of mother their
father Aithappa is also expired on 24.08.2010. Hence, the plaintiff and
defendants are the only legal heirs of their parents.
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S.C. Suit No.1708 of 2018
4. The plaintiff further averred that during the lifetime of
father, he has executed a declaration dated 26.10.2002 in which he has
mentioned that after his demise the property will be divided into all his
legal heirs. Accordingly, the name of plaintiff as well as defendant have
entered into the record of society and share certificate. She added that
after the death of parents, the defendants started to behave with her in
arrogant manner. They have also refused to recognize her share in a suit
property. However, after the repeated persuasion the defendants have
agreed to settle the matter amicably. Accordingly, on 10.08.2016 the
plaintiff and defendants have executed MOU in which they have agreed
to divide the suit property in equal share. They have also agreed to sell
the suit flat and to divide the consideration amount between them in
equal share.
5. It is the further case of the plaintiff that the defendant No.1
is residing in the suit property. However, he has not paid the
maintenance of the society. Lastly it is her contention that when she
requested the defendants about her one forth of suit property they have
refused to hand-over the same. Hence, she has filed the present suit for
partition and separation her share in a suit property.
Case of defendant No.1:
6. The defendant No.1 has contested the plaintiff's suit by
filing of his written statement in which he has denied most of the
averments of the plaint which are going against his interest. It is his
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S.C. Suit No.1708 of 2018
contention that the suit property is in his possession as a owner and the
plaintiff as well as defendant Nos.2 and 3 are not anyway concerned
with the suit property. In his Written Statement he has denied that he
has failed to pay the maintenance of the society and huge arrears of the
maintenance is pending. He has also denied that the plaintiff is entitled
for one forth share in a suit property. lastly on all above grounds, prayed
to dismiss the suit.
7. The defendant Nos.2 and 3 in their written statement have
supported the plaintiff's case and also claimed 1/4 share each of them
in a suit property.
8. Thus, from the above said rival pleadings of both the
parties, the learned predecessor of this Court has framed following
issues which are answered accordingly for the reasons stated thereafter.
Sr.
No.
ISSUES FINDINGS
1. Whether plaintiff proves that the suit flat is
subjected to partition?
In the Affirmative
2. Whether plaintiff proves her right/share in
the suit flat ? If Yes, what is his share?
In the Affirmative
accordingly the
plaintiff and
defendant are
entitled for ¼ share
each in Suit
Property.
3. Whether defendant No.1 proves her exclusive
title to the suit flat as claimed?
In the Negative
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S.C. Suit No.1708 of 2018
4. Whether plaintiff is entitled for decree of
partition?
In the Affirmative
5. What order and decree? As per Final Order
REASONS :-
AS TO ISSUE NOS.1 TO 5:-
9. In order to prove her case the plaintiff has led her evidence
by way of affidavit.
10. In support of this, she has also filed number of documents
such as :
Death Certificate Exh Nos.9 and 10, Share Certificate at Exh. 11,
Declaration at Exh. 12, Notice at Exh. 13, MOU at Exh.15,
Reply at Exh. 16 etc.
11. Per Contra the defendant No.1 has failed to appear before
this Court after filing of written statement. Hence, the evidence of the
plaintiff remained unchallenged. In the circumstances, from the absence
of the defendant No.1 who is only contesting defendant, it can be
presumed that he has accepted the plaintiff's case and that's why he has
choosen not to remain present before this Court. However, despite of
this , this court has to decide this suit as per its own merit.
12. So far as the aspect of merit of the suit is concerned, the
evidence of the plaintiff unfolds that she is a sister of defendants. The
suit property is owned by mother of plaintiff and defendant Leela
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S.C. Suit No.1708 of 2018
Aithappa Jogi who expired on 22.10.2000 intested. After the demise of
mother, their father Aithappa is also expired on 24.08.2010. Hence, the
plaintiff and defendants are the only legal heirs of their parents.
13. Her evidence further shows that, during the lifetime of
father, he has executed a declaration dated 26.10.2002 in which he has
mentioned that after his demise the property will be divided into all his
legal heirs. Accordingly, the name of plaintiff as well as defendant have
entered into the record of society and share certificate. In her evidence
she added that after the death of parents, the defendants started to
behave with her in arrogant manner. They have also refused to
recognize her share in a suit property. However, after the repeated
persuasion the defendants have agreed to settle the matter amicably.
Accordingly, on 10.08.2016 the plaintiff and defendants have executed
M.O.U. in which they have agreed to divide the suit property in equal
share. They have also agreed to sell the suit flat and to divide the
consideration amount in equal share. However, in vain.
14. It has further came into her evidence that the defendant
No.1 is residing in the suit property. However, he has not paid the
maintenance of the society. Lastly it has come in her evidence that when
she requested the plaintiff about her one forth share in suit property,
they refused to hand-over the same. Hence, she has filed the present
suit for partition and separation her share in a suit property.
15. As stated it is case of the defendant that the suit property is
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S.C. Suit No.1708 of 2018
exclusively owned by him. However, in order to show that he is a
exclusive owner of the suit property, he has not produced any evidence
before this Court. On the contrary, the evidence placed on record rather
it is admitted fact that the suit property is ancestral family property of
plaintiff and defendants. As stated supra, the defendant has failed to
appear before this Court after filing of his written statement.
Hence,evidence of the plaintiff remained unchallenged. Therefore,
from the oral as well as documentary evidence placed on record, it can
be very well said that the suit property is a ancestral family property of
plaintiff and defendants. Hence, plaintiff as well as defendants are
entitled to get equal 1/4 share each in a suit property. Accordingly,
issue No.1, 2 and 4 are answered in the affirmative and issue No.3 in
negative.
16. Considering all these aspects, I proceed to pass following
Order :
ORDER
1. Suit No. 1708 of 2018 is decreed with costs.
2. It is hereby declared that the plaintiff and defendants are
entitled for equal 1/4th shares each in suit property.
3. The preliminary decree be drawn accordingly .
(R.V. Bhakta)
City Civil Judge, Gr. Mumbai
Date : 17.02.2025
Typed on : 17.02.2025
HHJ signed on : 07.04.2025.
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S.C. Suit No.1708 of 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATE 07.04.2025, 01.30 p.m.
UPLOAD DATE AND TIME Mrs. P. R. Wagh.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. R.V..Bhakta
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
17.02.2025
JUDGMENT/ORDER signed by P.O.
on
07.04.2025
JUDGMENT/ORDER uploaded on 07.04.2025
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