Rushila Xavier Nunes v. Subhash Marcus Nunes And ORS

Amberkar IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CIVIL APPELLATE CIVIL APPELLATE JURISDICTION JURISDICTION WRIT PETITION NO. 378 OF 2024 Rushila Xavier Nunes .. Petitioner

Versus

Subhash Marcus Nunes and Ors.

.. Respondents ....................

 Mr. Prafulla Shah i/by Ms. Gunjan Shah for Petitioner  Mr. Anil D'Souza a/w. Mr. Ernes Tuscano, Advocate for Respondent No. 1.

...................

CORAM

: MILIND N. JADHAV, J.

DATE : JULY 18, 2024 P. C.

:

1.

Heard Mr. Shah, learned Advocate for Petitioner and Mr. D'Souza, learned Advocate for Respondent No.1. 2.

The present Writ Petition is filed under Article 227 of Constitution of India for maintaining a challenge to the order dated 27.10.2023 passed by the learned Civil Judge Senior Division, Vasai, in an Application below Exhibit - 83. Special Civil Suit No.85 of 2014 is filed by Plaintiff seeking partition, separate possession, declaratory relief and injunctive reliefs in respect of 1/18th share in the Suit property. Suit property is described in the Suit plaint as House no. 88 which according to the Plaintiff is in possession of Defendant No.1. 3.

Application below Exhibit - 83 is filed in the year 2023 by Plaintiff for seeking appointment of Court Commissioner under Order

XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short "CPC") to measure and inspect the alleged additional construction carried out by Defendant No.1 in the Suit property. Record shows that the Suit plaint has been amended by the Plaintiff with respect to additional construction carried out by the Defendant No. 1 in the Suit property, but the extent of the said additional construction is not being specified. It is for this reason that Application below Exhibit - 83 was made.

4.

The Application filed by Plaintiff is strongly resisted by Defendant No.1 on the premise that Suit is for partition and separate possession of 1/18th share of the Plaintiff only. Also there are other declaratory and injunctive reliefs prayed by Plaintiff and hence for grant of such reliefs, Application under Order XXVI Rule 9 of the CPC would necessarily amount to collection of evidence. In essence, Defendant No. 1 has pleaded that there is no nexus in relation to appointment of Court Commissioner and the principal reliefs of partition, separate possession, declaration and injunction prayed for by the Plaintiff in the Suit plaint.

5.

Mr. Shah, learned Advocate for the Writ Petitioner - Plaintiff would submit that appointment of Court Commissioner is to ascertain and identify the alleged additional construction made by Defendant No. 1 and that should not prejudice the Defendant No. 1. He would

submit that the said alleged additional construction which has been carried out by Defendant No. 1 is substantial in nature. According to Plaintiff, the alleged additional construction is construction of the 3rd and 4th floor on the Suit property i.e. House No. 88 which was originally a ground plus 2 storey structure. Before the Trial Court Defendant No. 1 has filed reply wherein he has not denied the alleged construction. This is crucial for the reason that if House No. 88 is to be partitioned in the Suit proceedings, then even the additional construction carried out by Defendant No. 1 will be amenable to partition between the heirs who shall be entitled to their respective shares therein. Whether the Defendant No. 1 will be in a position to plead any equity with respect to the additional construction that he has constructed on the Suit property i.e. House No. 88 is the issue. 6.

It is seen that, Suit for partition is pending for the last 10 years. Suit is for seeking share by partition of 1/18th share in the Suit property. What is challenged in the Suit is the Will dated 05.04.1994 as also the Release Deed dated 23.05.2003 by the Plaintiff. Subject matter of the present Writ Petition pertains to the alleged additional construction only. It is not Defendant No. 1's case that the additional construction will belong exclusively to him. By carrying out the additional construction, Defendant No. 1 has dealt with the Suit property without leave of the Court and that is the precise reason for

the learned Trial Court to have allowed the Application filed by the Plaintiff below Exhibit - 73 to plead about the alleged additional construction over the Suit property. Once such an amendment is allowed to the Suit plaint, Application made by the Plaintiff for appointment of Court Commissioner to ascertain the alleged additional construction also should have been allowed. This is because if ultimately the Suit property is sought to be partitioned and if the Plaintiff succeeds, Suit property would comprise of not only of the original Suit property when the Suit was filed in the year 2014, but would also include the Suit property constituting the alleged additional construction carried out by Defendant No. 1. 7.

If Court Commissioner is appointed for ascertaining of the extent of additional construction, it will enure to the benefit of all the parties to the original suit proceedings. However, in a suit for partition, all parties are considered as Plaintiffs. If the said additional construction which is carried out is not ascertained then Defendant No. 1 in all likelihood would claim equity for the same. Once the Suit property is subjudiced, Defendant No. 1 ought to have taken leave of the Court to deal with and construct on the Suit property. This having not been done, Defendant No.1 cannot object to the Application for appointment of Court Commissioner to ascertain the additional construction.

8.

In view of the above observations and findings, I am of the opinion that the impugned order is therefore not sustainable and deserves to be interfered with.

9.

Order dated 27.10.2023 is quashed and set aside. Resultantly, allowing the Application below Exhibit - 83. 10.

Court Commissioner shall visit the suit property and carry out the work of commission within a period of four weeks from today in presence of both the parties and submit the report to the Court. It is clarified that licensees / tenants of Defendant No.1 who are occupying the suit property on the 3rd and 4th floor shall not obstruct measurement of the suit property by the Court Commissioner. 11.

It is clarified that the the Court Commissioner shall make measurement to the extent of the construction which has been carried out and shall not make any fishing or rowing inquiries with respect to licensees / tenants of Defendant No.1.

12.

In the meanwhile, the Suit proceedings which is going before the learned Trial Court and the witness action of the Plaintiff shall not be affected and the same shall be proceeded with on the next adjourned date and thereafter at the discretion of the learned Trial Court.

13.

It it clarified that all contentions of the rival parties are expressly kept open.

14.

Writ Petition succeeds and stands allowed.

Amberkar [ MILIND N. JADHAV, J. ] by RAVINDRA MOHAN AMBERKAR Date:

2024.07.18 14:18:12 +0530 RAVINDRA MOHAN AMBERKAR