NANSEE CONSTRUCTIONS PRIVATE Vs. MADHAVSINGH GORDHANDAS AND ORS

JUDGEMENT

(1.) Heard Mr. Upadhyay, learned Counsel for the applicant and Mr.Thorat, learned Senior Counsel for the respondent No.1 at length.

(2.) By this Application under Section 115 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), the applicant, hereinafter referred to as 'defendant No.9', has challenged the order dated 20.08.2016 passed by the learned Judge, City Civil Court, Mumbai in Notice of Motion No.1303 of 2011 in Suit No.9777 of 1987 (High Court Suit No.604 of 1987). By that order, the learned trial Judge rejected the Motion taken out by defendant No.9 under Order VII, Rule 11(a) and (d) of C.P.C. for rejection of the plaint with exemplary costs of Rs.10,000/-, out of which Rs.5,000/- to be paid to the first respondent, hereinafter referred to as 'plaintiff' and balance amount of Rs.5,000/- is to be remitted to DALSA, Mumbai. The relevant and material fact that are necessary for disposal of the present C.R.A., briefly stated, are as follows. The parties shall be referred to as per their status before the trial Court.

(3.) Plaintiff came with the case that plaintiff, defendants No.1 and 2 and Karsandas (since deceased) are the sons of Gordhandas (for short 'Gordhandas'). Gordhandas was the owner of an immovable property bearing C.T.S.No.5376 to 5381 admeasuring about 850 sq.yards together with structure standing thereon situate at Joshi Lane, Tilak Road, Ghatkopar (East), Mumbai 400 077 (for short 'said property'). Gordhandas expired on 06.08.1964. He left behind a Will executed on31.03.1964 bequeathing his interest in favour of mother of the plaintiff, Gomatibai. She was given life interest in the said property. The Will provided that after a demise of Gomatibai, all the four sons shall have equal share in the said property. After the death of Gordhandas, the said property was transferred to the name of Gomatibai.