IN THE COURT OF THE CITY CIVIL JUDGE: AT BANGALORE
O.S. No. /2012
BETWEEN:
Smt. Mariam Rosy and Others … Plaintiffs
AND:
Sri. Robert and Another … Defendants
WRITTEN STATEMENT UNDER ORDER VIII RULE 1 CODE OF CIVIL
PROCEDURE
The Defendant No.1 begs to submit as under:
1. At the outset the suit filed by the plaintiff seeking the relief of
partition and injunction against the defendants in respect of the
schedule property is not maintainable either in law or facts of the
case. There is no truth, merits or bona fides in the plaint averments
and as such the suit is liable to be dismissed. That the plaintiffs have
not approached this Hon'ble Court with clean hands and have
suppressed the true and correct facts and the averments which
are not specifically traversed herein are hereby denied as false and
incorrect and the plaintiffs are called upon to strict proof of the same.
2. That the Plaintiffs have sought 1/4 th share in the schedule
property, contending that the suit schedule property is their ancestral
property. The Plaintiffs have not furnished any document or copy of
evidence to show that the schedule property is ancestral property.
That the Plaintiffs are not in possession of the suit property as claimed
by them in plaint and as such they are not entitled to the said relief.
The Defendants are in peaceful possession and enjoying the schedule
property.
3. That the first Defendant is in peaceful possession of portion of
the schedule property to an extent of 1200 Sq.ft and the same was
acquired by this Defendant under a partition deed dated 13.08.1999
which is registered as Document No.1528/1999-2000, in pages 112 to
122, volume No.4619 in the office of Sub-Registrar Gandhinagar,
Bangalore. That ever since from the date of partition the Defendant
No.1 is in peaceful possession of the said portion of schedule property.
That the schedule property is assessed to revenue and has paid
municipal taxes to the BBMP. The copy of the Partition Deed is
herewith furnished as Document No.1. That the said partition deed is
reflected in the encumbrance certificate and the same is herewith
furnished as Document No.2.
4. That the Plaintiff No.1 is the wife and Plaintiff No. 2 to 5 are the
children of the Late D.J. Kumar, the brother of Defendants. That the
said Late D.J. Kumar was married to the first Plaintiff in the year 1969
and the entire expenses of the marriage was borne by this Defendant
and one of the properties which the Defendant No.1 has acquired was
also sold for the purpose of meeting the wedding expenses of the said
Late D.J. Kumar. That the said Late D.J. Kumar was unemployed and
the entire family of Late D.J. Kumar was taken care by this Defendant.
The Defendant has taken care of all the day to day necessities of the
Plaintiffs. That unfortunately Late D.J. Kumar expired on 04.06.1998.
That after the death of D.J. Kumar, the Defendant No.1 has provided
huge financial support to the Plaintiffs. That the plaintiffs are residing
in a partition of the property of the defendant on monthly rent of
Rs.3000/- and when the defendant demanded the plaintiffs to enhance
the rent in the month of January 2014, the plaintiffs have threatened
the defendant with dire consequences of claiming the property as
family property. That the plaintiffs have failed to pay the monthly rents
from January 2014 and when the defendant demanded the plaintiff
either to pay the rent or to vacate the premises, the plaintiffs have
filed the above false suit making false claim. That the Plaintiff in order
to knock off the property of this Defendant has filed the above false
suit on concocted stories. The averment made in the plaint that the
Plaintiffs have constructed the house in the schedule property is false,
frivolous and vexatious and the Plaintiffs are put to the strict proof
of the same.
5. The averments made in para 5 of the plaint that the schedule
property was acquired by Late D. Joseph and late Smt. Amruthamani
under a sale deed dated 21.10.1963 is true. It is also true that the said
parents of the defendant have died intestate leaving behind the
plaintiffs and defendants. But it is false to allege that the plaintiffs and
defendants have got 1/4th share in the schedule property. As stated
supra the schedule property has been partitioned by meets and
bounds under registered partition deed amongst the defendants. That
the husband of the first plaintiff during the life time of his parents, has
received his share by cash and has released himself from the family
and was living independently. Therefore the late D. Kumar was not
party to the partition deed as his share in the family was already
provided and the plaintiffs have enjoyed the same. That in view of late
D. Kumar having quit the joint family and got his share, he was not
entitled to any share in the family property. Since the deceased D.
Kumar was not having any share in the property upon his demise, his
legal heirs similarly did not have any share nor were necessary parties.
Thus they have not been joined as parties for the partition deed dated
13.08.1999. That the defendant 1 to 3 being proper and necessary
parties who were entitled for share in the partition of the schedule
property, have got executed the said partition deed and have divided
the property as per their understanding and entitlement.
6. That after the partition among the defendants 1 to 3 they are
in possession and enjoyment of the portion of the property that has
fallen to their respective shares. The plaintiffs have no right to seek for
partition, as the share of late D.Kumar was provided way back. The
plaintiffs have not put up any construction on the schedule property
and the averments that they have put up construction on the schedule
property is false and concocted stories of the Plaintiffs and Plaintiffs
are put to strict proof of the same. That the Defendant has never tried
to alienate the schedule property and the averment to this regard is
false and frivolous. The Plaintiffs are misusing the goodness of this
Defendant who has given shelter at much lessor rent to them and has
taken care of all the needs of Plaintiffs. The Plaintiffs with intent to
knock off the property and to bring this Defendant to their terms has
filed this above suit. The Plaintiffs to make illegal gains which they are
not entitled for were coercing this Defendant to fulfill with their
demands. That when the Defendant did not give heed to the illegal
demands of the Plaintiffs, the Plaintiffs issued legal notice dated
09.03.2013 and 06.05.2013 demanding Defendants to partition the
schedule property by metes and bounds.
7. That the Plaintiffs after causing the notice to the Defendants
approached this Defendant and threatened that if this Defendant will
not comply to their demands they would file the suit for partition in a
court of law and see that this Defendant keeps running around courts
and meet the terms. That when the Defendant did not bend to their
demands the above suit is filed.
8. The Defendant herein is senior citizen and was an employee of
a Private Company and has worked for a period of 30 years. This
Defendant retired in the years 2001 and from the saving and
earnings of this Defendant the house is put up on the schedule
property. The Defendant being goodhearted person helped the
Plaintiffs at the time of crisis but the Plaintiffs who have enjoyed all the
assistance of this Defendant have filed the above suit. That there is no
cause of action for the suit the cause of action shown in the plaint is
illusionary and not known in law. The partition of the schedule property
has taken place between the family members of the Defendants in the
year 1999 itself and the Plaintiffs had knowledge of the same and did
not question/object to the partition as they had received their share.
That the above suit is barred by law as the suit is filed after a lapse of
15 years from the date of execution of partition deed. The suit has to
be dismissed on this sole ground, as law is clear that the suit
challenging the partition or seeking for partition cannot be filed after
lapse of 12 years from the date of knowledge. In the case on hand the
Plaintiffs had knowledge of partition deed and have not challenged the
same as they all have jointly received their share from the Defendants
and have stated that they had no objections for the partition.
9. Further the Plaintiffs are not in possession of the schedule
property as claimed by them and are liable to pay the Court fee as per
the market value. The Plaintiffs have not paid proper court fee on the
market value of schedule property and as such the relief claimed by
the Plaintiffs cannot be bestowed on them by this Hon'ble Court. That
the suit is hopelessly barred by time and as such the suit has to be
dismissed in limine.
WHEREFORE the Defendant No.1 most humbly prays that this
Hon’ble Court be pleased to dismiss the above suit with exemplary
costs in the interest of justice and equity.
Advocate for Defendant No.1 Defendant No.1
VERIFICATION
I, Robert, the Defendant No.1 do hereby solemnly affirm and
state that this is my name and signature and the contents of this
written statement of objection are true and correct to the best of my
knowledge, information and belief.
Bangalore.
Date: 09.10.2014 Defendant No.1
IN THE COURT OF THE CITY CIVIL JUDGE: AT BANGALORE
O.S. No. /2013
BETWEEN:
Smt. Mariam Rosy and Others … Plaintiffs
AND:
Sri. Robert and Another … Defendants
VERIFYING AFFIDAVIT
I, Robert, S/o. Late D.Joseph, aged 69 years, residing at Old
No.13/1, New No.537B, 3rd Cross, Opposite Hennur Bande,
Byraveshwara Layout, Kalyan Nagar Post, Bangalore – 560 043, do
hereby solemnly affirm and state on oath as follows:-
1. I am the 1st Defendant in the above case and I know facts and
circumstances of the case. Hence I am swearing to this affidavit.
2. I submit that the averments made in paragraphs 1 to 9 in the
accompanying Written Statement are true to the best of my
knowledge, belief and information.
VERIFICATION
I, Robert, the Deponent do hereby state that this is my name and
signature and the contents of this affidavit are true and correct to the best of
my knowledge, information and belief.
Identified by me,
DEPONENT
Advocate. Sworn to Before Me
Bangalore,
Date: 09.10.2014
No of corrections:
