1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4140 OF 2007 IN SUIT NO. 2552 OF 2004 Messrs Unique Construction ...Plaintiffs versus Marina Sequera .....Defendant Ms. C.A. Gonsalves for the Plaintiffs Mr. O.J. Menezes for the defendant. CORAM: A.P. DESHPANDE, J. DATED: 24TH APRIL, 2008. P.C.: 1. The learned counsel for the Plaintiff seeks to carry out necessary amendment in the Plaint and for that purpose has submitted the draft amendment. The proposed amendment is aimed at peremptorily seeking a decree for partition by mets and bounds. By the proposed amendment, no knew prayer is made but an existing prayer is sought to be amended so that a partition decree could be pressed in service. The learned counsel for the Defendant in all fairness does not oppose the proposed amendment. Hence the amendment is allowed. The same be carried out forthwith. The counsel for Plaintiff seeks to amend the prayer made in the Notice of Motion no.4140/07. The prayer earlier, was for passing of a preliminary decree. However, having 2 realised that there may not be a need to make any further enqiry, the prayer is sought to be amended by seeking a final decree instead of preliminary decree. The learned counsel for the Defendant does not oppose the amendment. Hence the same is allowed. 2. By this Notice of Motion, the Plaintiff seeks a decree for partition of the immovable property wherein the Plaintiff and the Defendant have one half share each. The submission made by the learned counsel for the Plaintiff is that there is no dispute about the fact that the Plaintiff has stepped into the shoes of the sister of the Defendant, on account of Plaintiff having purchased her share in the properly, jointly owned by the Defendant and her sister. The Defendant and her sister by name Mrs. Nora Andrade were jointly entitled to the property namely the building by name Regi Annexe situated on the land bearing final plot no.525 survey No. 679 admeasuring 344.16 sq. yards equivalent to about 277.72 sq. meters situated at M.M. Chhotani road, Mahim, Bombay. Under an arrangement the said property viz. the building was equally divided between the Plaintiff and her sister Mrs. Nora. The portion that fell to the share of the Defendant and the predecessor in title of the Plaintiff were separated by mets and bounds. The present Defendant and her sister, who is predecessor in title of the Plaintiff, had half share each in the subject property. The Defendant instituted a suit in City Civil Court bearing S.C. Suit No. 4175/06. The said suit was filed by the present defendant against the present plaintiff, based on the above reffered facts seeking injunction, with a view to restrain the Plaintiff in the 3 present suit from entering upon the property of the present Defendant. The said suit filed by the Defendant in the present suit, has been decreed by the Civil Court, by a judgment and decree dated 20-12-2007. In the said decree, the present Plaintiff has been restrained from carrying out any construction in the common passage by erecting a wall adjoining the property owned by the Plaintiff. Thus the present Plaintiff has been restrained from obstructing the peaceful enjoyment of the property that has fallen to the share of the present Defendant, under the arrangement made between the Defendant and her sister. The instant suit is filed by the Plaintiff for seeking a decree for partition of the property, which was jointly owned by the Defendant and her sister by name Mrs. Nora, on account of purchase of the share of sister of the Defendant by the Plaintiff. On such purchase the Plaintiff would step into the shoes of the sister of the Defendant and would thus be the owner of 50% of the share in the property. The Plaintiff' s right to 50% of the share in the property has been admitted by the Defendant. Rather this forms the basis of the suit filed by the Defendant, claiming injunction against the Plaintiff in the City Civil Court. The averments made in the suit filed by this Defendant before the City Civil Court more particularly in paragraph 2, clinches the issue. The learned counsel for the Defendant does not dispute, that the Plaintiff on acocunt of purchase of the share in the property owned by Mrs. Nora the sister of the Defendant, has become owner of 50% of the share in the property, and thus is very much entitled to claim partition and half share in the property. Ordinarily when a further enquiry is required to be made for effecting partition of the immovable 4 property, a preliminary decree would be passed. If and in case in a given situation no further enquiry is to be made, it would be very much permissible for the court to pass a final decree. In this suit, the property was initially owned by the Defendent and her sister Mrs. Nora, and two of them have under an arrangement made amongst themselves had partitioned the property and were in exclusive enjoyment of their portion. The Plaintiff has purchased the share of the sister of the Defendant. The Plaintiff is ready and willing to accept the poerion in the property which had fallen to the share of the sister of the Defendant. A sketch has been filed at Exh.C on page 33 forming part of the Notice of Motion. The East wing portion having a curvature at the south side has been in possession of the Plaintiff as it was earlier possessed by sister of Defendant whereas the west wing is undisputely in possession of the Defendant under a family arrangement made in between the two sisters when the predecessor in title of the Plaintiff was the co- owner of the property. The counsel for Plaintiff so also the Defendant are in agreement that the subject property viz. plot No.525 could be conveniently partitioned by mets and bounds between the Plaintiff and the Defendant where under the Plaintiff would possess and own the east wing and the Defendant would possess and own the west wing. This is the same arrangement which was arrived at between the defendant and her sister prior to the purchase of share of defendant' s sister by the plaintiff. In view of the agreement between the Plaintiff and the Defendant about the apportionment of the respective shares in the property, standing on final plot no. 525, there is no need to appoint a Receiver for making a further enquiry for partitioning the property. 5 Order 20 Rule 18 sub Rule (2) permits the Court to pass a final decree for partition and separate possession in case the court can conveniently pass such a decree without making further enquiry. As the Plaintiff and the Defendant have mutually agreed to own and possess their respective share in the property as indicated hereinabove, i.e. the plaintiff owning and possessing east wing and the Defendant owning and possessing west wing, the final decree for partition and separate possession is being passed by having recourse to Order 20 Rule 18 sub Rule (2) of CPC. In the result, allowing the Notice of Motion, I pass the following order. 3. The Plaintiff' s suit to the extent it relates to prayer clause (e) and (e-1) is concerned, deserves to be decreed. It is declared that the plaintiff and the defendant each have one half share in the property standing on final plot No.525, Survey No. 679 admeasuring 344.16 sq. yards equivalent to 277.72 sw. meters situated at M.M. Chhotani Road, Mahim. It is declared that the Plaintiff is the owner of eastern wing of final plot no. 525 and the defendant is the owner of western wing as shown in Exh.C to the Notice of Motion. The prayer in the suit for partition and separate possession of half the share of the Plaintiff in final plot No.525 is decreed by recording a further fact that the plaintiff is in possession and shall continue to be in possession of eastern wing of final plot No.525 and the defendant is and shall continue to be in possession of the western wing of the said plot. Final decree be drawn up. There shall be no orders as to costs. 4. In view of the suit being decreed for partition and separate possession of half the share of the plaintiff, prayer clause 6 (f) and (f-1) of the suit are rendered nugatory and thus the plaintiff seeks to delete the prayer clause (f) and (f-1). The deletion is permitted. Amendment to be carried out forthwith and the amended copy be served on the other side. As the suit is partly decreed, the suit shall proceed further for adjudication of the prayer clause (a), (b), (c) and (d). In view of passing of partial decree in the suit, the Notice of Motion is disposed of. (A.P. DESHPANDE J.)