9911796707
TMI Blog2012 (11) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... at with his wife, Urmila Shah. The deceased created a life interest in favour of his wife. She was to enjoy all the facilities in the flat including the movables. She was not to sell, transfer, alienate, lease, rent or create any third party rights in favour of any person. The Will specifically forbids her from inducting any person in the suit flat and 4 car parking places and from tenanting or sub-tenanting or licensing the said premises. The Will shows that the wife has been well provided and sets out the other movable and immovable assets held by the deceased. The Will makes no mention of any adopted child or any foster child. The Defendant claims to be a nephew of the wife of the deceased and residing in the suit flat as such. The Plaintiffs claim that he trespassed in suit premises and has refused to handover peaceful possession despite promising to do so under letter dated 1st November 2006. The Plaintiffs claim that the Defendant has no right, title and interest in the suit flat. The suit, is, therefore, for declaration that the Defendant has no right, title or interest in the suit flat and is in unlawful possession and is trespasser. The suit is for recovery of possession a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Plaintiffs had no right in the suit flat. He, however admitted that the deceased was the owner of the suit flat and a member in the Woodland Co-operative Housing Society holding shares in respect of the suit flat with 3 parking spaces. He has refuted that he was not residing in the suit flat or was not allowed to enter during the life time of the deceased. He claims that his possession was lawful in the suit flat and that he being the sole heir of the deceased, he is solely entitled to the suit flat. He consequently claims to be in rightful possession and occupation of the suit flat and refutes that he is a trespasser. The Defendant's case is of denial of the Plaintiffs' ownership, despite the admission of the ownership of the deceased in the suit flat and a claim of adoption and possession. 5. Hence in the suit the Plaintiffs' rights under the probated Will of the deceased owner of the suit flat would have had to be seen upon the Defendant's case of adoption and consequent possession as an heir of the deceased and/or his wife. 6. The probated Will of the deceased specifically forbids the wife of the deceased from alienating, encumberin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed in the schedule Exhibit A to the Plaint to the Plaintiff's. 10. The application is under Order 12 Rule 6 of the CPC, which runs thus: Order 12. Rule 6. Judgment on admissions.-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced. 11. Bearing in mind that the suit is on trespass and the claim of the Plaintiffs is that they are owners of the suit property which is refuted and denied in the written statement and considering that the Defendant's case itself is of ownership pursuant to being the heir under the deceased's Will, yet unprobated or simplicitor as a heir on intestacy, the admission of the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 necessitating and enjoining the Court not to wait to determine the issue of ownership, adoption and or possession of the Defendant, but to pass a judgment granting the aforesaid prayers which would no longer remain for adjudication upon such admitted facts. 19. Order 12 Rule 6 is a salutary provision. It is made not to get suits in which admissions of the claim of the Plaintiff are made in whatever manner enmeshed in legal and judicial delays by having the Plaintiffs to prove a case which is admitted. The rule is very wide. It includes admissions in the pleadings as also otherwise. It includes oral as well as written admissions. It includes admissions made at any stage of the suit and in any application of any party. It requires a judgment on admission to be passed by the Court on its own motion or on the application of any party having regard to such admissions. It allows judgment for the part or full of the claim of the Plaintiffs and requires the Court to pass the judgment without waiting for the termination of any other question between the parties and it also requires a decree to be passed in accordance with law. 20. This is in consonance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or denied by the party against whom they are made. The Court shall record such admissions and denials. 24. Since the admission is not made in the written statement in this suit itself, but is specifically unequivocally and clearly, made in another proceedings, such admission enjoins the Court to pass the judgment thereon under Order 12 Rule 6 of the CPC as having been made in writing otherwise then in this pleadings but in the criminal complaint sought to be brought to the notice of the Plaintiffs in the Chamber Summons referred to above. 25. The purpose and object of Order 10 Rule 1 is also similar-it is to narrow down the issues between the parties, the issues being the material facts pleaded by one party which are denied by the other under the provisions of Order 14 Rule 1 of the CPC the relevant part of which runs thus: Framing of issues.-(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. The declaration that the Defendant has no right, title and interest in the suit flat must be given upon the specific statement of the Defendant in para 13 of the complaint that the flat does not belong to him, but to the trust. The declaration that the Defendant is in unlawful occupation and possession as a trespasser falls as a matter of corollary once it is admitted by the Defendant that the flat does not belong to him and that it is owned by the trust. 33. The relief of recovery of possession to the Plaintiffs, who are the trustees, must, therefore, follow upon the Defendant's specific statement in para 4 of the complaint that the flat is owned by the trust who has sued for his eviction. 34. There are few cases in which the admission of a Defendant in another proceeding is so clear and unequivocal with regard to the entire relief claimed by the Plaintiffs. 35. In the reply to the Notice of Motion all that the Defendant has claimed is that his admissions are totally unclear, ambiguous and conditional and made with reference to the rights allegedly claimed by the Keshavrao Bhosle. Mr. Thakker rightly argued that accordingly the Defen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
