1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.2692 of 2007 In Suit No.3085 of 2004 Mrs.Mandakini Ramchandra Vaithi .. .. Plaintiff v/s. Manohar Mahadeo Worlikar & ors. .. Defendants Mr.Nivas Kamble i/by Mr.A.M. Saraogi for Plaintiff. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 15 th October, 2008 P.C. : 1. Parties are brothers and sisters. One Defendant is the sister- in-law. The Plaintiff claims 1/6 th share in the suit property. It is stated to have belonged to her mother. The assessment bill, Exhibit- A to the Plaint, shows the suit property in the name of her mother. The Plaintiff would be entitled to her 1/6 th share in the estate of her mother. 2. The suit premises consists of a structure with 9 rooms. The Plaintiff has claimed to be in possession of 2 rooms. She claims to have been forcibly dispossessed. The actual date of dispossession is not shown. There have been proceedings in the Criminal Court. An Application under Section 145 of the Criminal Procedure Code came to be allowed. The Revision 2 therefrom has set aside that order. Order in revision is not challenged. 3. The Plaintiff must show her actual possession in respect of the 2 rooms to be entitled to a relief upon forcible dispossession. There is nothing in the Plaint or in this Notice of Motion to substantiate the Plaintiff's oral case of actual possession. 4. The Plaintiff has filed yet another Suit against the Defendants in the Bombay City Civil Court at Bombay, with regard to certain construction and alteration which has already been dismissed. 5. At best, the Plaintiff is entitled to 1/6 th share. Two rooms out of nine would be more than her 1/6 th share. On failure to show her actual possession, relief pending the Suit cannot be granted. 6. Written Statement is not filed. However, the relationship between the parties as well as the suit property is not denied. The real denial is to the Plaintiff's 1/6 th share. This is on a premise that since the Plaintiff has been married prior to 1994 i.e. prior to the amendment of the Hindu Succession Act, she is not entitled to her 1/6 th share as a 3 coparcener. That contention is incorrect. The Plaintiff does not claim as a coparcener. The Plaintiff claims 1/6 th share in the property of her deceased mother. The Plaintiff is entitled to such share. No relief of injunction however can be granted in the Notice of Motion as prayed for. 7. The Notice of Motion is dismissed. The Plaintiff may apply for a preliminary decree for ascertainment and determination of her 1/6 th share. [SMT.ROSHAN DALVI, J.]