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.
Shukla S D
1 Reg. C.S. No.4381/2012
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
Mr. Gyandatta Shobhnath Shukla
Age 51 years, Occu. Service Plaintiff
R/at : Flat No.6, Sukhwani Residency,
Dapodi, Pune 12.
Mr. Satyaprakash Gyandatta Shukla
Age : 30 yrs., Occ. Service
R/at : Radheya Machining Limited Defendant
Gat No. 1260/2, PuneNagar
Sanaswadi, Pune – 412 208.
Suit for declaration and
Adv. N. P. Mule for the plaintiff.
2 Reg. C.S. No.4381/2012
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
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
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
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
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
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
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
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
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
Does plaintiff prove that he is
absolute and sole owner of suit
In the negative
Does plaintiff prove that defendant
unlawfully threatening to disturb
his peaceful possession over the suit
In the negative
Whether the plaintiff is entitled for
permanent injunction as besought?
In the negative
Whether plaintiff is entitled for
declaration as besought ?
In the negative
What order and decree ? Suit is
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
11] The documents filed by plaintiff will be taken into
consideration at the appropriate stage while assessment of
6 Reg. C.S. No.4381/2012
12] Per contra, despite ample opportunity defendant
failed to appear before this Court. Hence, suit is proceeded
13] I have given active listening and thoughtful
consideration to the argument advanced by learned advocate
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
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
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
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
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
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
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
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
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
the suit premises. Hence, in view of settled position of law,
the plaintiff is not entitled for permanent injunction against
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,
12 Reg. C.S. No.4381/2012
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,
Date of Judgment : 08/09/2015.
Judgment signed by
Presiding Officer on : 08/09/2015.
Judgment uploaded on : 18/09/2015.”