GUNMALA GHENDMAL JHAVERI Vs. SUSHILA KANAKMAL GANDHI

JUDGEMENT

(1.) This Chamber Summons has taken exception to the report of the Commissioner, High Court, Bombay dated 24.10.2008 made upon the preliminary decree being passed in the suit.

(2.) The suit is for partition. The Plaintiff claims 1/3 rd share in the suit property (the suit was filed by the original Plaintiff. The present plaintiffs are her heirs brought on record pending the suit. They shall be referred to as the Plaintiff). The suit property is a tenanted building which has seven residential flats, one show room, one shop and one hoarding. The Plaintiff inter alia alleged in paragraph (13) of the plaint that the Defendants in collusion and without knowledge and consent of the Plaintiffs have transferred the tenancy of the ground floor premises (which consists of show room and the shop). The Plaintiffs alleged in paragraph (14) of the plaint that the Defendants unauthorisedly and wrongfully created tenancy in respect of the third party for the ground floor premises. The Plaintiff claims that tenancy is unauthorised and illegal and not binding upon the Plaintiff. The Plaintiff also averred that she apprehended that the Defendants would create further rights in other parts of the suit property. The Plaintiffs averred in paragraph (16) of the Plaint that the alterations were made in the premises for attempting to create further rights and hence she applied for partition and separate possession of the suit property. The Plaintiff also averred in paragraph (18) of the Plaint that Defendants committed act of waste and would diminish the value of the suit property which would tantamount to creating an encumbrance thereon.

(3.) The Plaintiff has sued for the declaration of her 1/3 rd share, partition of the suit property by metes and bounds, inquiries to be made for partition in the property and directions to be given for appointment of Commissioner for effecting partition for perpetual order of injunction restraining transfer, creation of third party rights or disposing of any part of the premises and for making all inquiries and taking accounts in respect of the rents and profits recovered by Defendants No. 1 to 4 and Defendants No. 5 & 6 (they shall be referred to as the Defendants).