IN THE COURT OF THE CITY CIVIL JUDGE: AT BANGALORE
O.S. No. 26835/2013
BETWEEN:
Smt. Elizabeth Rosy and Others … Plaintiffs
AND:
Sri. Soundaraj 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 1/4th share in the schedule
property, contending that the suit schedule property is their ancestral
property. The Plaintiffs have not furnished any document or iota 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 [Link] 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. Jayaraj, the brother of Defendants. That the
said Late D.J. Jayaraj 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. Jayaraj. That the said Late D.J. Jayaraj was unemployed and the
entire family of Late D.J. Jayaraj 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. Jayaraj expired on 04.06.1998.
That after the death of D.J. Jayaraj, 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. Jayaraj 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. Jayaraj having
quit the joint family and got his share, he was not entitled to any share
in the family property. Since the deceased D. Jayaraj 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 [Link] 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 the 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, Soundaraj, 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. 26835/2013
BETWEEN:
Smt. Elizabeth Rosy and Others … Plaintiffs
AND:
Sri. Soundaraj and Another … Defendants
VERIFYING AFFIDAVIT
I, Soundaraj, S/o. Late [Link], 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, Soundaraj, 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: