Further Step

Dear Sir, My name is Shukla Satyaprakash D and below attached judgement copy for your ref. Can you suggest the further step for entering and living the flat. Thanks Shukla S D 1 Reg. C.S. No.4381/2012 Judgment Presented on : 20/04/2011 Registered on : 20/04/2011 Decided on : 08/09/2015 Duration : 04Y 04M 18D In the Court of 19 th Joint Civil Judge Junior Division Pune, At Shivajinagar, Pune (Presided over by Shri S. C. Khairnar) Old Special Civil Suit No.1106/2011 Re numbered as R.C.S. No.4381/2012 Exh. No. Mr. Gyandatta Shobhnath Shukla Age 51 years, Occu. Service Plaintiff R/at : Flat No.6, Sukhwani Residency, CBuilding, Dapodi, Pune 12. V/s Mr. Satyaprakash Gyandatta Shukla Age : 30 yrs., Occ. Service R/at : Radheya Machining Limited Defendant Gat No. 1260/2, PuneNagar Road, Sanaswadi, Pune – 412 208. Suit for declaration and permanent Injunction Appearances Adv. N. P. Mule for the plaintiff. Exparte against defendant. 2 Reg. C.S. No.4381/2012 Judgment J U D G M E N T (Delivered and pronounced in open court on this 8th September 2015) 1] This is a suit for declaration and permanent injunction. 2] The case of the plaintiff in nutshell is as under :Plaintiff claiming to be absolute and sole owner of the flat bearing No.6, admeasuring 65.00 Sq.mtrs, on 1st floor in block No.6, in Building No.C, Sukhwani Residency, situated at S.No.19/3+4+5A+5B, 20/7 admeasuring 12800.00 Sq.mtrs., at Village Dapodi, Pune within Pmpari Chinchwad Municipal Corporation and within Registration Division & Disrict Pune, Sub Division of Taluka, Haveli and bounded as under Towards East : Railway Line, West : By 30 Mtrs, D. P. Road, South : Shri. Chandrakant Kate's lan, North: Ganesh Aangan building more particularly described in plaint para no 1, is the subject matter of the suit property (hereinafter for short referred as suit premises). 3] Plaintiff submitted that, he has two sons. Defendant is his youngest son. Defendant saw suit premises and advised him to purchase the same at any cost. He made inquiry with the bank at that time it was revealed that his 3 Reg. C.S. No.4381/2012 Judgment income is not sufficient to take bank loan. Defendant was permanently employed with Radheya Machining Ltd. Defendant told him, if his name is added as coapplicant in the agreement to sale he will contribute fifty percent of loan amount. Accordingly, considering the income proof of plaintiff and defendant the ICICI bank Ltd. approved the loan amount of Rs.7,79,000/for the terms 180 months. The monthly installment was Rs.7,222/. On 11th March 2004 he along with defendant he has purchased the suit premises. 4] He further submitted that, thereafter, the defendant refused to pay any amount towards the installments. Defendant had not paid a single paisa towards the installments of the house. Therefore, plaintiff requested the defendant to execute necessary document for removal of his name from the agreement to sale and loan agreement. However, defendant has refused to do the same and without paying anything the defendant became the coowner in the suit premises. 5] He further submitted that, on 20/05/2010 defendant has sent SMS and informed him that, either to give said flat on rent and to pay the installments or to divide the flat in two parts. Therefore, meeting was called by the brother of plaintiff for settlement, therein defendant agreed 4 Reg. C.S. No.4381/2012 Judgment that he had not paid anything but as his name is on record therefore, he is entitled for the half of market price of the flat. Due to the greed of defendant the settlement became impossible. 6] He further submitted that, he has issued legal notice through his advocate on 14/06/2010 and called upon defendant to transfer suit premises in plaintiff's name. However, defendant has given evasive notice reply and threaten to dispossess him from suit premises. Hence, plaintiff constrained to file present suit for declaration that, he be declared as sole and absolute owner of the suit premises and defendant be restrained from causing any obstruction to his peaceful possession over suit premises. With this submission he prays that, suit may kindly be decree with costs. 7] Defendant served with suit summons by R.P.A.D. on 08/10/2014. Despite, service of suit summons, he failed to appear before this court. Thus, considering reason suit has been proceeded exparte by passing order below Exh.1, on 01/11/2014. 8] Considering averement made in the plaint following points arises for my determination and my finding thereon reasons given below :5 Reg. C.S. No.4381/2012 Judgment Sr. No. Point Findings 1 Does plaintiff prove that he is absolute and sole owner of suit premises ? In the negative 2 Does plaintiff prove that defendant unlawfully threatening to disturb his peaceful possession over the suit premises ? In the negative 3 Whether the plaintiff is entitled for permanent injunction as besought? In the negative 4 Whether plaintiff is entitled for declaration as besought ? In the negative 5 What order and decree ? Suit is dismissed with costs. R E A S O N S 9] Plaintiff Mr. Gyandatta Shobhnath Shukla unfurled his case by filing his affidavit in lieu of examinationinchief below Ex.05.Besides his oral evidence, he has also placed reliance on the documents filed below Exh. 21 to 32 and Article A & B. 10] Plaintiff has closed his evidence by filing pursis below Exh.33. 11] The documents filed by plaintiff will be taken into consideration at the appropriate stage while assessment of evidence. 6 Reg. C.S. No.4381/2012 Judgment 12] Per contra, despite ample opportunity defendant failed to appear before this Court. Hence, suit is proceeded exparte against him. 13] I have given active listening and thoughtful consideration to the argument advanced by learned advocate for plaintiff. CONSIDERATION : Reasons as to issue No. 1 to 4 14] These issues are interlinked with each other. Hence, in order to avoid repetition of facts and for the sake of convenience, I discuss and decide them together. 15] The plaintiff by filing his affidavit in lieu of examination in chief below Exh.17 retreated entire version mentioned in plaint in toto. 16] It has come in the evidence of plaintiff that defendant is his youngest son. He wants to purchase suit premises at relevant time, he could not have purchased suit premises without obtaining bank loan. His income was insufficient to take bank loan to purchase suit flat. The 7 Reg. C.S. No.4381/2012 Judgment defendant was permanently employed. Hence, his name is added as coapplicant in the bank loan and agreement to sale. The defendant stated that, he will contribute the 50% loan amount by contributing 50% amount towards the installment. Therefore, relying upon the defendant he added his name as coapplicant to loan agreement and also in agreement to sale. Accordingly, he has obtained loan amount of Rs.7,79,000/and purchased suit premises on 28/03/2004 and loan agreement was signed on 03/03/2004. However, entire loan amount has been paid by the plaintiff. Defendant has not paid a single paisa towards the installment of the house loan. 17] Further it has come in his evidence that, on 20/05/2010 defendant informed him by SMS either to give said flat on rent and to pay the installment or to divide the flat into two parts. Defendant started harassment of the plaintiff by writing suicide note on several times. Defendant to pay installment of the loan amount. However, defendant refused to pay the bank installments. Plaintiff has paid entire loan amount. The plaintiff is in exclusively possession of suit premises. Defendant is disturbing his peaceful possession over the suit premises. 8 Reg. C.S. No.4381/2012 Judgment 18] Plaintiffs has produced xerox copy of agreement to sale dated 11/03/2004 article 'B' and offer letter from ICICI Bank dated 28/03/2004 at Exh.21, disbursement letter from ICICI bank dtd. 31/03/2004 at Exh.22, home loan agreement Exh.23, possession letter 29/04/2005, notice to defendant dtd 14/06/2010 Exh.25, notice reply dtd. 24/06/2010, foreclosure letter dtd. 09/12/2010 Exh.30. 19] It is evidence of fact that, despite service of suit summons the defendant remain absent matter is proceeded exparte and plaintiff's evidence has gone unchallenged. 20] I have gone through the xerox copy of sale deed. From the perusal of agreement to sale it could be seen that, defendant is party No.2, as a purchaser of the suit premises. However, there is no whisper that, he was only a formal party or purchaser to the agreement to sale or there is no recital in this regard. Had he been a formal party to the agreement to sale said fact would have been mentioned in the agreement to sale. However, this fact find no place in the agreement to sale. 21] So also there is no other document or record to show that, the defendant was and is formal party to the said agreement to sale. Hence, in absence of any recital in the 9 Reg. C.S. No.4381/2012 Judgment said agreement to sale and any other document, I find no substance in the contention of the plaintiff that the defendant is only formal party purchaser to the said agreement to sale. It is crystal clear that, defendant is purchaser and coowner of the suit premises. 22] I have gone through documents offer letter Exh.21, disbursement letter Exh.22, home loan agreement dtd. 31/03/2004 Exh.23. From the perusal of these documents it could be seen that, defendant is a coapplicant to said loan transaction. In the name of plaintiff and defendant loan amount has been sanctioned and disbursed for purchase of the suit premises. It is evidence that, the bank loan account below Exh. 31 & 32, is standing in the name of plaintiff. The plaintiff time to time has deposited installments of loan amount in the bank. 23] Here I would like to state that, since purchase of the suit premises the plaintiff has not disputed that defendant is not paying installment and he has no concerned with the suit premises. It is un disputed fact that, defendant is younger son and he was residing with plaintiff in joint family till filing present suit. He was permanent employee of Radheya Machining Ltd. this shows that, he was having sufficient means to pay the contribution or to contribute in 10 Reg. C.S. No.4381/2012 Judgment family expenditure. Considering reason in my view probably there was a mutual understanding between plaintiff and defendant that the loan account would stand in the name of plaintiff and installments would have been paid out of income of joint family. In such circumstances it can be said that there was no contribution on behalf of defendant. 24] Admittedly, the loan account is standing in the name of plaintiff and defendant. Plaintiff and defendant being coapplicant are jointly and severally liable to pay the loan amount. The plaintiff might have paid entire loan amount in such circumstances the proper remedy available to the plaintiff to file suit for recovery of half loan amount from the defendant. However, in absence of any documentary evidence on record or any specific averment in the said agreement to sale he can not claim to be absolute and sole owner of the suit premises. Thus, for above mentioned reason I find no substance in the contention of plaintiff that, defendant is not having any right or interest in the suit premises. 25] So far as the possession of plaintiff over suit premises is concerned, it is admitted by defendant in his notice reply below Exh.26 dated. 24/06/2010, that he was driven out by the plaintiff out of the suit premises. Taking 11 Reg. C.S. No.4381/2012 Judgment into consideration admission on record it shows that, plaintiff is in exclusive possession of the suit premises. However, I earlier observed that, defendant is coowner of the suit premises. Hence, in view of settled position of law, the plaintiff is not entitled for permanent injunction against the coowner i.e. defendant. Thus, for above mentioned reason I answer point No. 1 & 4 in the negative. 26] In the wake of above discussion and in the interest of justice, I pass the following order. O R D E R 1) Suit is dismissed with costs. 2) Decree be drawn up accordingly. Pune (Shri. S. C. Khairnar) Date : 08/09/2015 19th Jt. Civil Judge Junior Division, Pune 12 Reg. C.S. No.4381/2012 Judgment C E R T I F I C A T E “I affirm that the contents of this P.D.F. file Judgment are same word for word as per original Judgment. Name of steno : Shri. N. N. Kanaki Court Name : Shri. S. C. Khairnar, 19th Jt.C.J.J.D.& J.M.F.C.,Pune. Date of Judgment : 08/09/2015. Judgment signed by Presiding Officer on : 08/09/2015. Judgment uploaded on : 18/09/2015.”