1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1762 OF 2005 IN SUIT NO. 688 OF 2000 Smt. Severine Gracy D’Souza (Barnes) ...Plaintiff Vs. Smt. Lilly Siamon D’Souza & Ors. ...Defendants Plaintiff present in person None for Defendants CORAM : SMT. ROSHAN DALVI, J. DATED : 2ND JULY, 2010 P.C. : 1. The Plaintiff has taken out a number of Notices of Motion and other applications in this Suit filed since 2000. After those applications were disposed of she has again applied in 2005 for declaration, the usual injunctions and appointment of Court Receiver. 2. It is her case that she is an heir of her deceased father along with Defendant No.1 who is her mother and Defendants 2, 3 and 4 who are her brothers and sister. 3. She claims that her father had a hut on a property which came to be redeveloped and he was allotted shop No.1 in Palm acre Co-operative Society. She claims that her mother and her siblings have an equal share 2 therein along with her. Her father died intestate on 9th February 1988. She claims that her mother wrongfully sold the shop to Defendant No.8 for consideration. 4. The Plaintiff has not produced a single document to show that her father owned or possessed a hut in his name or was given a shop by way of alternate accommodation. 5. Her mother has claimed, as can be seen from other proceedings in this Suit, that the shop was allotted to her and she has disposed it off during her life time. Her mother has disowned the Plaintiff completely. Correspondence between the Plaintiff and her mother reveals that her mother has been harassed by the Plaintiff upon various allegations made by the Plaintiff and hence the mother had forbidden the Plaintiff to go near her or upon her property. 6. In this Notice of Motion the Plaintiff has prayed to set aside the agreement between Defendant No.1 (her mother ) and Defendant No.8, to restrain the Secretary of the Society, Defendant No.7 from transferring the share certificate to the name of Defendant No.8, for injunction against her brothers and sister from disposing off or alienating, or parting with possession of the Suit property or induct any third party therein and for appointment of Court Receiver. Since the property has admittedly been sold for consideration relief in terms of prayers (a), (b), (c) and (d) cannot be granted. 3 7. The Plaintiff argued that she does not have either any documents showing allotment of the permanent alternate accommodation of shop No.1 to her father or any documents of the suit shop in the name of her father. The Plaintiff contended that the Court Receiver be appointed so that he would go to the premises and obtain the documents. The appointment of Court Receiver is not to obtain evidence on behalf of parties. It is for each Plaintiff to prove his or her own case by independent evidence brought on record by such Plaintiff. 8. The Plaintiff contends that her father was issued licence by the Municipality to start the business in shop No.1. The Plaintiff has not produced the licence. She states that it is with Defendant No.1. She has not got a certified copy of the licence issued by the M.M.C produced from the records of the M.M.C also. 9. The Plaintiff contends that the electricity bill was in the name of her father. The Plaintiff was directed to show the electricity bill. The Plaintiff has not produced any electricity bill. The Plaintiff has not called upon Defendant No.9, BSES Limited to produce the electricity bills in the name of her father. The Plaintiff has shown to Court a xerox copy of what she calls a security deposit receipt along with xerox copy of an initial electricity bill which is made out in the name of M/s. B.H. Construction Company and not her father. M/s. B.H. Construction Company were the developers who developed the slum and allotted the shops and flats. The security deposit receipt also shows the name of the said developer and not her father as 4 claimed by her. 10.The Plaintiff has not made out any case whatsoever that Suit shop No.1 in Palm acre Co-operative Society at any point of time belonged to her father or was allotted to her father. The Plaintiff, therefore, cannot claim reliefs simplicitor because she is one of the heirs of her father. The Suit property is not shown to be the estate of her father. No case for appointment of Court Receiver is made out. 11.Notice of Motion is dismissed with costs. 12.The Plaintiff sued as an heir of her deceased father and sought reliefs in respect of his estate. Her father expired in 1988. The cause of action to sue is prima facie seen to have accrued for claiming her share in the estate of her father in 1988. The Suit is prima facie seen to be barred by the Law of Limitation. The plaint, therefore, may require to be rejected under the provisions of Order 7 Rule 11 of the C.P.C. 13.The Suit is adjourned to 19th July 2010 for rejection of plaint. The Plaintiff shall show how the bar of limitation is saved. (SMT. ROSHAN DALVI, J.)