draft written statement under order viii rule 1

7/29/2019 Draft Written Statement Under Order VIII Rule 1

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IN THE COURT OF THE CIVIL JUDGE (JD) AT XXXXXXXXXXX

OS XXXXXXX/2010

PLAINTIFFS VS DEFENDANTS

XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX

Written Statement filed under order VIII Rule 1 of CPC by Defendant 1,3,5:-

1. At the out-set, the suit filed by the Plaintiffs is prima facie not maintainable either in law or on the

facts of the case and the same is liable to be dismissed in-limine.

2. It is humbly submitted that, The para 1 of the plaint is not in dispute.

3. It is humbly submitted that, The averments made in para 2 of the plaint is incomplete as to daughters

of Venkatanarasegowda, apart from alleged three sons there were three daughters Kenchamma,

Vambamma, Venkatamma all are dead but as per plaint averments plaintiff has to disclose true factsand take steps to implead all necessary parties tallying with plaint averments.

4. It is humbly submitted that, The averments made in para 2 of the plaint is incomplete as to when

exactly the daughters of Thimmaiah died and who are all class one heirs of the daughters of Thimmaiah

present as on the date of death of daughters and who are all now not alive, and who are all entitled to

share that rights as per plaint averments. Without disclosing all such material particulars the instant suit

is not maintainable. The plaintiffs claims that they are the only legal representatives of deceased

Thimmaiah is disputed. Except this all other averments regarding relationship in para 2 are not disputed.

5. It is humbly submitted that, The averments in para 3 is also incomplete as to when exactly the

alleged persons were dead and what type of succession went in the family. The date of death is

important under Hindu Law to open mode of succession among Hindus. Without disclosing the material

facts in the pleadings there will be no facts constituting the cause of action and hence plaint is barred


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under Order VII Rule 11(a). Rest of the averments in para 3 of the plaint as to relationship is not

disputed.

6. It is humbly submitted that, Regarding the averments in para 4 of the plaint the relationship pleaded

is not in dispute, however party in plaintiff position is duty bound to disclose all material particulars

before the court and stand on their own pleadings rather than any weakness on other side. The starting

point of when the alleged persons are dead is very important to decide mode of succession among

Hindus.

7. It is humbly submitted that, the averments in para 5 of the plaint that plaint schedule property

belongs to Venkatanarasaiah s/o Thimappa of Arkere village, kasaba hobli, kunigal taluk, tumkur district

is again incomplete. The item number 1 of suit schedule property is still standing in the name of

Venkatanarasaiah s/o Thimappa and possession got to him through Paternal succession (Pitrarjitha) isthe entry in revenue records. Without pleading such material particulars, plaintiff wants to hide many

things before court. In that respect plaint schedule properties are not held by venkatanarasaiah as self

acquired property it is his ancestral property. The exact date of death of Venkatanarasaiah is needed to

decide whether succession started to his heirs or survivors as prevailing law as on the date of death of

venkatanarasaiah. Without pleading such better particulars suit is not maintainable.

8. It is humbly submitted that, The plaintiff is liable to strictly prove with cogent evidence when exactly

the date of death of alleged ancestors. It is false to say that after the death of venkatanarasaiah suit

schedule properties have been inherited by the three sons of him. And its is also false to say that after

death of above three sons their heirs have inherited the schedule properties. The suit schedule

properties are held as Hindu Mitakshara Co-parcenary property and survivors of the family inherited as

co-parceners before 17-06-1956 and later succession as per the Hindu Succession Act.

9. It is humbly submitted that, The plaintiff have not disclosed when marriage of daughters of the family

took place and when their date of birth to decide whether they have the right to property by birth.

Without disclosing such material particulars suit is not maintainable, since it does not disclose exact

cause of action.

10. It is humbly submitted that, The averments in para 5 of the plaint that 2nd plaintiff and mother of

plaintiff no.1 are sisters is not disputed. But they are neither co-parceners nor co-sharers in respect of

suit schedule property. The plaintiffs have to exactly plead in what way they want to succeed to suits

schedule property. To plead to come under women right to property the exact date of birth and exact


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date of marriage is necessary since both 2nd plaintiff and mother of plaintiff no.1 are born before 17-06-

1956 and also married before such date. Such married daughters neither come in as co-parceners of

Hindu Coparcenary nor they are survivors of male Hindu co-parcener. For deciding all such facts plaintiff

is liable to prove with co-gent eveidence. There is no division between Venkatanarasaiahs decendents is

disputed already there is oral partition and each is enjoying their own share only due to ignorance

khathas still stand in ancesters. But physically every real sharer enjoying their share through unity in

diversity. The oral partition is reduce to memorandum of writing after many days. Without disclosing

such identity of family affairs and without showing that the plaintiffs are being ousted from any joint

possession before 1956 itself, the plaintiff seeks relief based on misleading, incomplete, hidden facts.

This is abuse of process of court.

11. It is humbly submitted that, The plaint averments in para 6 of the plaint that joint nucleus in the

form of suit schedule properties passed on to present defendant no.1 to 3, 5 and 6 is not disputed. The

persons included in creation claim and maintenance of such joint nucleus hold it as their exclusive

property from long standing ousting all others from before 1956. The averments of plaint itself discloses

that plaintiffs were ousted with possession and plaint shall be valued by the market value of property.

The suit is improperly valued by plaintiffs. The other averments as to katha revenue entry in revenue

record is not disputed.

12. It is humbly submitted that, The plaint averments in para 7 of the plaint once again incomplete as to

date of birth, marriage and death of Akkamma and it is material to note that Akkamma died in 1950

itself. Even if succession is claimed on her rights it is long after 60 years which is barred by law of

limitation. Without disclosing exact dates plaintiff wants to surpass law of limitation and non-disclosureof exact cause of action. Which is abuse of process of court.

13. It is humbly submitted that, The plaint averments in para 7 of the plaint is not clear as to what are all

the properties of 1st plaintiffs mother as on the date of death of her. Since 2nd plaintiff has already left

her father as survivor as per the law existed as on the date of death of her father. The succession

opened as coparcener can only be claimed after severing the status of joint family. Here plaintiffs are

not coparceners, they are pleading as intestate successors of Thimmaiah. When such succession opened

is not pleaded, but ouster of possession is pleaded, the ouster is from the date of death of Thimmaiah

accepting the custom prevailed over among the family. Now such succession cannot be claimed after

waiver of it from these decades, The succession opened as intestate shall be claimed within law of

limitation and not beyond it. The plaintiffs plaint is barred by law of limitation.


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14. It is humbly submitted that, The averments in the plaint para 7 that plaintiffs demanded defendants

two months back to effect partition between all the legal heirs of Venkatanarasaiah by metes and

bounds is absolute false. There is no demand, notice, or communication of such demand by plaintiff has

ever reached this defendants and plaintiffs are liable to strictly prove such averments. It is false to say

that such demand is being made and it is false to say that such demand is being dragged, it is false to say

that such demand is being refused. The plaintiffs are not having any legitimate share in all the suit

schedule properties. Even if they had any intestate successor rights they have abandoned and waived

their rights after having accepted defendants long possession and ouster of them. Now without

disclosing exact cause and delay in claiming their any available rights they are estopped under law of

limitation and hence suit is liable to be dismissed.

15. It is humbly submitted that, After the death of Thimmaiah no member of his family is there as

coparcener in the family. Neither Thimmaiah claimed his share in the family nor any of his heirs claimed

their share in the notional share of Thimmaiah. After abandoning their claim through their conduct now

they are claiming share after lapse of time, which is not maintainable as per law.

16. It is humbly submitted that, It is falsely pleaded in plaint para 7 that defendants are canvassing in the

locality to alienate the suit schedule properties to defraud the rights of plaintiffs. It is false to say that

plaintiffs convened the panchayath in the presence of elders, well wishers and relatives and demanded

their legitimate share in the suit schedule properties. These false averments are made to create a fake

cause of action, plaintiffs are put to strict proof of the same. There is no demand made by plaintiffs

before instituting the suit and hence suit is bad for lack of cause of action. The demand made in the

plaint does not amount to cause of action and hence suit is liable to be dismissed.

17. It is humbly submitted that, The defendants have given incomplete Genological Tree, that even

created for the instant suit. The Genology submitted is fully disputed and necessary parties for plaint

averments are not included in plaint. The women heirs and their all class-1 heirs are not included in the

plaint and hence suit is bad for non-joinder of necessary parties that is all the heirs/ Lrs/ Co-parceners/

intestate successors/ as per the date of birth, marriage, and death of women heirs.

18. It is humbly submitted that, The documents produced by plaintiff neither discloses plaintiffs claims

and rights, the true disclosure of their rights is only through Exact date of birth, marriage and death of

parties by reliable and cogent evidentiary documents, mere production of genology created without

sufficient information and Revenue records the rights of plaintiffs are not clear.


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19. The plaintiffs had the alternative to file declaratory suit for their claim within 12 years of their

ouster from their rights or from the date of arousal of intestate succession. They being failed to do so

not entitled to file suit for partition proclaiming themselves as coparceners. Coparcenary is the creation

of law and not parties. The plaintiffs cannot claim coparcenary rights since they are not coparceners by

birth in the family of Venkatanarasaiah. No man/woman can be co-parcener by birth in two families.

20. It is humbly submitted that, it is false to say that cause of action arose two months back when

plaintiff demanded their legitimate share as disclosed in para 8 of the plaint. It is liable to strict proof. It

is false to say that defendants are canvassing in the locality to alienate the suit schedule properties to

defraud the rights of plaintiffs. These false averments are made to create a fake cause of action,

plaintiffs are put to strict proof of the same. There is no demand made by plaintiffs before instituting the

suit and hence suit is bad for lack of cause of action. The demand made in the plaint does not amount to

cause of action and hence suit is liable to be dismissed for non-disclosure of exact cause of action. The

plaintiffs claim relates back to intestate succession for Thimmaiah, without pleading exact nature of

Thimmaiahs family, when he died? When his wife died? When his daughters died? Who are survived as

Lrs to whom? Who succeeded on the date of death? The claim of plaintiffs cannot be considered at

such belated stage with many hidden material particulars. The exact case of plaintiff is not pleaded with

material particulars and either suit shall be dismissed as not maintainable or plaint shall be rejected for

the same.

21. The suit is not valued properly as per pleadings taken in plaint. Plaint declares ouster of possession

of plaintiffs in para 6 of the plaint and hence suit shall have to be valued properly under Section 35(1)

rather than Section 35(2).

22. It is humbly submitted that, plaintiffs have abondened their right to intestate succession for more

than 12 years and hence suit is barred by law of limitation. Suit is barred for non joinder of necessary

parties. Suit is barred for non disclosure of exact cause of action. Suit is barred for improper valuation.

Suit is barred for non disclosure of material facts. The Plaintiffs are guilty of suppressio vari and

suggesstio falsi. Hence, the suit is liable to be dismissed on this ground alone.

23. It is humbly submitted that, Without prejudice to the above contentions, this Defendants humbly

submits, that, the Plaintiffs have deliberately made certain false averments to suit their case against this

Defendants. This Defendants further submits, that, the averments which are not specifically denied or

traversed hereby are deemed to be denied as false and Plaintiffs will be put to the strict proof of the

same.


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24. It is humbly submitted that, This Defendants craves for kind indulgence of this Honble Court and this

Honble Court may be pleased to allow this Defendant to raise additional grounds, if any, at the time of

hearing the suit.

WHEREFORE, in the above facts and circumstances of the case, it is most respectfully prayed, that, this

Honble Court may be pleased to dismiss the suit filed by the Plaintiffs against this Defendants along

with exemplary costs in the interest of justice and equity.

ADVOCATE FOR

1st ,3rd , 5th DEFENDANT


V E R I F I C A T I O N

I XXXXXXXXXXXXXXX ., the 3rd Defendant herein above, do hereby verify and declare that, what is stated

above is true and correct to the best of my knowledge, information and belief Iam also verifying on

behalf of other defendants.

Place: XXXXXXXXXXXX

Date: XXXXXXXXXXXXXXXXXXXX

3rd DEFENDANT


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IN THE COURT OF THE CIVIL JUDGE (JD) AT KUNIGAL

XXXXXXXXXXXXXX


XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX

VERIFYING AFFIDAVIT

I XXXXXXXXXXXXXs/o Late XXXXXXXXXXXXaged about 36 years Resident of XXXXXXXXXXXXXXXX

XXXXXXXXX and 3rd defendant herein above solemnly affirm and state on oath as follows

1. I submit that, I am the 3rd defendant in the above case. I am well conversant with the facts of the

case. Hence, I am swearing to the contents of this affidavit. I also swear on behalf of 1st and 5th

defendants.

2. I submit that, today I along with others have filed written statement in the above Suit. The suit is one

for Partition and separate possession of filed by plaintiffs against this Defendants. Further, I submit,

that, the averments made in the W/s may kindly be read as part and parcel of this affidavit in order to

avoid repetition of facts.

3. I submit that, the averments made in para 1 to 24 of the accompanying W/s are true and correct to

the best of my knowledge, information and belief.

4. I submit that, the Documents will be produced after plaintiffs necessarily plead necessary material

particulars in their incomplete pleadings.


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I, the deponent herein, do hereby declare that this is our name, signature and that the contents of this

affidavit are true and correct to the best of our knowledge, information and belief.

PLACE : XXXXXXXXXXX

DATED : D E P O N E N T

Identified by me,

Advocate,

IN THE COURT OF THE CIVIL JUDGE (JD) AT KUNIGAL

XXXXXXXXXXXXX


XXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX

OBJECTIONS TO INTERIM APPLICATION OF PLAINTIFFS.:-

1. The IA is not maintainable either on facts or on law.

2. The facts sworned in the affidavit are false and misleading without coming with clean hands plaintiff

wants to convey false set of allegations before the Honble court.


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3. The averments in affidavit are similar to that of plaint averments and the w/s contentions of facts may

be read as part and parcel of this objections to IA.

4. The instant suit is one of partition and recovery of possession, the cause of action is different, herein

the rights of plaintiff is under test. There is no test in regard to rights of defendant, there is no relief

sought by defendant. There will be no adjudication of rights of defendant. In such a situation plaintiff

cannot seek interim order without production of proper facts and documents as to his right.

5. The plaintiff will be unabled to prove their lawfull right if they file separate suit for intestate

succession, hence they are taking backdoors in the form of coparcenary and joint family to do things

which they cannot by law do in front doors.

6. With an illegal intention applicant wants to take some interim order from the court by not disclosing

prime facts and law applicable to the case. Plaintiffs want to deprive true owner from the inherent

rights annexed with ownership of the land. This cannot be allowed in the interest of Justice.

7. There is no prima facie case or balance of convenience in favour of Plaintiffs or applicant. No injury

will be caused to Plaintiffs or applicant. If the IA is allowed, taking advantage of court order Plaintiffs or

applicant may prolong the case, by black mailing this Defendants and may claim wrongfull damages by

showing concocted causes and fake violation of interim orders.

8. It is settled principle of law that when there is no piece of document shown by the plaintiff to show

the prima facie case of their legal rights and also the alleged cause of action for their filing of instant I.A

and suit the question of considering the I.A does not arise. It is the applicants bounden duty to show

prima facie case to obtain any interim relief.

9. Injunction against the suit suit schedule property cannot be granted as stated under section 41(i) of

the Specific Relief act when looked into the conduct of plaintiff by suppression of prime facts.

10. In support of written statement averments and objections to IA this defendants rely on the decision

of Supreme court to show balance of convenience on defendant side. In 2006(5) SCC 282. Seema Arshad


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Zaheer & Ors. VS Municipal Corporation of Greater Mumbai & Ors. Exercise of discretion by granting a

temporary injunction when there is no material, or refusing to grant a temporary injunction by ignoring

the relevant documents produced, are instances of action which are termed as arbitrary, capricious or

perverse. When we refer to acting on no material (similar to no evidence), we refer not only to cases

where there are total dearth of material, but also to cases where there is no relevant material or where

the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion. In this

case, there was no material to make out a prima facie case and therefore, the High Court in its

appellate jurisdiction, was justified in interfering in the matter and vacating the temporary injunction

granted by the trial court.


of Supreme court to show balance of convenience on defendant side. In Wander Ltd. v. Antox India P.

Ltd. [1990 Supp SCC 727] in regard to grant of temporary injunction and interference by appellate courts

in regard to such discretionary order : "Usually, the prayer for grant of an interlocutory injunction is at a

stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both

contested and uncertain and remain uncertain till they are established at the trial on evidence. The

court, at this stage, acts on certain well settled principles of administration of this form of interlocutory

remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated

: "... is to protect the plaintiff against injury by violation of his rights for which he could not adequately

be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at

the trial. The need for such protection must be weighed against the corresponding need of the

defendant to be protected against injury resulting from his having been prevented from exercising his

own legal rights for which he could not be adequately compensated. The court must weigh one need

against another and determine where the 'balance of convenience' lies."


of Supreme court to show balance of convenience on defendant side. In 2007(6) SCC 120 -> He who

comes into equity must come with clean hands. A court of equity refuses relief to a plaintiff whose

conduct in regard to the subject matter of the litigation has been improper. This was formerly expressed

by the maxim "he who has committed iniquity shall not have equity", and relief was refused where a

transaction was based on the plaintiffs fraud or misrepresentation, or where the plaintiff sought to

enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he

had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity

must come with perfect propriety of conduct, or with clean hands.


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of Supreme court to show balance of convenience on defendant side. In 2006 (5) SCC 282 -> The

discretion of the court is exercised to grant a temporary injunction only when the following

requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating

protection of plaintiffs rights by issue of a temporary injunction; (ii) when the need for protection of

plaintiffs rights is compared with or weighed against the need for protection of defendants rights or

likely infringement of defendants rights, the balance of convenience tilting in favour of plaintiff; and (iii)

clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted.

In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be

exercised only when the plaintiffs conduct is free from blame and he approaches the court with clean

hands.


of Supreme court to show balance of convenience on defendant side. In 2008(11) SCC 1 -> While

considering an application for grant of injunction, the court will not only take into consideration the

basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and

irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is

an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the

properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not

interfere only because the property is a very valuable one.


of Supreme court to show balance of convenience on defendant side. In 2008 (10) SCC 97 -> It is tritethat the rule of pleadings postulate that a plaint must contain material facts. When the plaint read as a

whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil

court, it may be rejected in terms of Order 7, Rule 11 of the Code. Similarly, a plea of bar to jurisdiction

of a civil court has to be considered having regard to the contentions raised in the plaint.


of Supreme court to show balance of convenience on defendant side. In Chandra Shashi v. Anil Kumar

Verma, (1995) 1 SCC 421, held that nobody should be permitted to indulge in immoral acts like perjury,

prevarication and motivated falsehoods in the judicial proceedings and if someone does so, it must be

dealt with appropriately. In case the recourse to a false plea is taken with an oblique motive, it would

definitely hinder, hamper or impede the flow of justice and prevent the courts from performing their

legal duties.


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of Supreme court to show balance of convenience on defendant side. In Dr. Buddhi Kota Subbarao v. K.

Parasaran & Ors. AIR 1996 SC 2687, Supreme Court has observed as under:- No litigant has a right to

unlimited drought on the Court time and public money in order to get his affairs settled in the manner

he wishes. However, access to justice should not be misused as a licence to file misconceived and

frivolous petitions.


of Supreme court to show balance of convenience on defendant side. In Anil Kumar Jain v. Maya Jain

(2009) 10 SCC 415, Supreme Court held that an order of waiving the statutory requirements can be

passed only by Supreme Court in exercise of its powers under Article 142 of the Constitution. The said

power is not vested with any other court.

19. The importance of pleadings and non existence of material pleadings in the above case, is a major

ground of objection in the above suit when main suit itself is not maintainable, the IA is also not

maintainable. In this regard In support of written statement averments and objections to IA this

defendants rely on the decision of Supreme court to show balance of convenience on defendant side. In

THE SUPREME COURT OF INDIA Decision in a case of election matter, in Kalyan Singh Chouhan vs

C.P.Joshi Decided on 24 January, 2011, Justice P. SATHASIVAM & Justice Dr. B.S. CHAUHAN observed

following principles of case law on Importance of pleadings as also applicable to civil court

proceedings is discussed with following citations:- This Court in Ram Sarup Gupta (dead) by L.Rs. v.

Bishun Narain Inter College & Ors., AIR 1987 SC 1242 held as under: "It is well settled that in the absence

of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled thatno party should be permitted to travel beyond its pleading and that all necessary and material facts

should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is

to enable the adversary party to know the case it has to meet........ In such a case it is the duty of the

court to ascertain the substance of the pleadings to determine the question." This Court in Bachhaj

Nahar v. Nilima Mandal & Ors. , AIR 2009 SC 1103, held as under: "The object and purpose of pleadings

and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases

being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully

alive to the questions that are likely to be raised or considered so that they may have an opportunity of

placing the relevant evidence appropriate to the issues before the court for its consideration. The object

of issues is to identify from the pleadings the questions or points required to be decided by the courts so

as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim,

or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the

parties, or its own attention on that claim or relief, by framing an appropriate issue........ Thus it is said

that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to

grant any relief. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings,

prayer, court fee paid, evidence let in, etc."


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20. In this regard In support of written statement averments and objections to IA this defendants rely on

the decision of Supreme court to show balance of convenience on defendant side. In Ritesh Tewari &

Anr. vs State Of U.P.& Ors. (2010) JUSTICE P Sathasivam, B Chauhan It is settled legal proposition that if

an order is bad in its inception, it does not get sanctified at a later stage. A subsequentaction/development cannot validate an action which was not lawful at its inception, for the reason that

the illegality strikes at the root of the order. It would be beyond the competence of any authority to

validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which

he has obtained the benefits.


the decision of Supreme court to show balance of convenience on defendant side. In AIR 2006 SC 1786,

The suit land was gifted to the mother of appellant-plaintiff by `S'. Suit by widow of `S' resulted in

compromise to the effect that widow of `S' would enjoy the suit property during her life time and after

her death, the same could be inherited by mother of appellant. Thereafter widow of `S' adopted

respondent-defendant and executed a gift deed in his favour. The adoption and gift deed were

challenged by filing a suit which was decreed. Widow of `S' died in 1967. The decree was challenged in

Letters Patent Appeal, which was dismissed in 1981. Mother of appellant filed the present suit in 1982

for recovery of possession of the suit land. It was dismissed as barred by limitation by trial court. The

judgment of trial court was upset in first appeal. In second appeal, High Court held that the suit was

barred by limitation as the same was not filed within 12 years from the date of death of widow of `S'.

Hence the present appeal. Held that High Court has rightly held that the suit should have been filed by

the plaintiff within 12 years of the death of the Hindu female, and the same having not been filed within

12 years was barred by limitation. Article 65 of the Limitation act, 1963 prescribes the period of

limitation for possession of immovable property or any interest based on title where the suit is by a

Hindu or Muslim entitled to possession of immovable property on the death of a Hindu or Muslim

female. Article 65(b) in express terms provides that "the possession of the defendant shall be deemed to

become adverse only when female dies". The limitation prescribed is 12 years beginning from the date

when the possession of the defendant becomes adverse to the plaintiff. Article itself provides that the

possession of the defendant shall be deemed to become adverse only when the female dies. It cannot

be said that limitation does not run from the date on which the Hindu female died and that it would

start running from some other date. It cannot be said that in view of the pending litigation

relating to the adoption and gift deed executed in favour of the defandant, in the Letters Patent Appeal

till 1981, the appellant- plaintiff could not have filed the present suit. In the litigation which was pending

before the High Court the plaintiff had not claimed possession of the suit land. High Court has rightly

pointed out that even if the plaintiff had sought amendment of the pleadings in the pending matter and

claimed decree for possession, the legal position would have been different. He having not done so, he

should have filed the suit for possession of the suit lands within 12 years of the death, which he failed to

do. ..Limitation Act, 1963-Article 65-Suit for possession of immovable property on

death of Hindu female-Limitation for-Suit filed after 12 years from the death of the female-Held: Such


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suit if not filed within 12 years of the death of the Hindu female, would be barred by limitation-In such

case possession of the defendant shall be deemed to become adverse only from the date when the

female dies and not from some other date


the decision of Supreme court to show balance of convenience on defendant side. In Subbanna vs

Kamaiah ILR 1988 KAR 786 Karnataka High court observed: In a suit for partition of the property of a

Hindu joint family, necessary parties to the suit are : (a) heads of all branches ; (b) females who are

entitled to a share on partition ; (c) purchaser of the portion of the plaintiff's share in a case where the

plaintiff himself is a coparcener; (d) if the plaintiff himself is a purchaser from a coparcener, his alienor

and (e) in case the devolution of interest in Mithakshara coparcenary property has taken place as per

Section 6 of the Hindu Succession Act, all those persons on whom the interest in the property has

devolved. In a case where the devolution of interest in the property of a male Hindu has taken place in

accordance with Section 8 of the Hindu Succession Act, all those heirs on whom the interest in the

property has devolved upon.


the decision of Supreme court to show balance of convenience on defendant side. In Mahadeorao Sukaji

Shivankar Vs. Ramaratan Bapu & Ors (2004) 7 SCC 181"material facts" are facts upon which the

plaintiff's cause of action or defendant's defence depends. Broadly speaking, all primary or basic facts

which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are

"material facts". Material facts are facts which, if established, would give the petitioner the relief asked

for. But again, what could be said to be material facts would depend upon the facts of each case and norule of universal application can be laid down. In this regard In support of written statement averments

and objections to IA this defendants rely on the decision of Supreme court to show balance of

convenience on defendant side. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511, Supreme Court

again reiterated the distinction between `material facts' and `material particulars' and observed as

under: "51. A distinction between "material facts" and "particulars", however, must not be overlooked.

"Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in

support of the case set up by him either to prove his cause of action or defence. "Particulars", on the

other hand, are details in support of material facts pleaded by the party. They amplify, refine and

embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as

to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair trial and

would not take the opposite party by surprise. 52. All "material facts" must be pleaded by the party in

support of the case set up by him. Since the object and purpose is to enable the opposite party to know

the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence.

Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars,

on the other hand, are the details of the case which is in the nature of evidence a party would be leading

at the time of trial."


15/15

24. A cause of action which is manifestly vexatious and meritless, in the sense of not disclosing a clear

rights to sue and taking care that the grounds mentioned in Order 7 Rule 11 of the Code of Civil

Procedure are attracted, would require such IA to be thrown out at the threshold for the reason no

person would be entitled to inconvenience through the medium of the process of law.

Wherefore the Honble court may be pleased to dismiss application of applicant in the interest of

justice.

Place: XXXXXXXXXXXXXXXX

Date:

ADVOCATE FOR

