RYBERG CYRIL COSMAS HENRIQUES Vs. KASHMIRA ERUCH BILLIMORIA

JUDGEMENT

(1.) The present First Appeal is at the instance of the Plaintiff being aggrieved by the order dtd. 5/7/2022 passed by the City Civil Court rejecting the Plaint under Order VII, Rule 11(d) of Code of Civil Procedure, 1908. The parties are referred to by their status before the Trial Court.

(2.) S. C. Suit No. 1448 of 2021 was filed by the Plaintiff on 2/7/2021 seeking a declaration that the registered deed of conveyance dtd. 19/3/2008 is fabricated, bogus, fraudulent and invalid document with respect to the suit property which is land bearing Survey No. 94, Hissa No. 2, C.T.S. No. 104 situated at Culvem, Manori Gorai, Taluka Borivali and for an order of permanent injunction restraining the Defendant from accessing, entering or remaining in possession of the suit property. It is pleaded in the plaint is that the Plaintiff is the legal heir and grandson of late Cosmas Henriques and Serah Mary Henriques. The suit property was owned by Serah Marry Henriques and is the ancestral property of the Plaintiff acquired from late Serah Mary Henriques who died intestate on 1/10/1985. The suit property stands mutated in the name of Mary Elias Kojmia Arik since last more than 70 years and has not been sold to the Defendant. It is pleaded that in or around the year 2008, one Jabel Rodrigues impersonated herself as Ms. Jabel Intur Rodrigues alias Mary Sera Elis Arik to the Defendant and a fabricated and bogus Deed was executed on 19/3/2008 between the Defendant and Jabel purporting to be the conveyance of the suit property. On 11/11/2009, Jabel and others were arrested by Gorai police and F.I.R. came to be registered against them and the proceedings are pending before the 26th Metropolitan Magistrate Court, Borivali. It is stated that on 19/4/2008, the Defendant filed an application with Tahsildar to transfer the suit property and to change the record in the name of the Defendant, which came to be rejected right up to Additional Commissioner (Konkan Division). On 30/12/2009, the Defendant filed Suit No. 13 of 2010 seeking a declaration of right, title and interest in the suit property which was withdrawn. In or about 2018, the Plaintiff came across an unauthorized compound wall of 1.8 m height around the periphery of the suit property for which a number of complaints were made by the Plaintiff's late father and Writ Petition was filed in June, 2019 in High Court for demolition of unauthorized structures.

(3.) The pleading as regards the cause of action and limitation in paragraph 23 reads as under: