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MR DESMOND PRABHU – Appellant
Versus
LATE ROBERT D'SOUZA BY HIS LEGAL HEIR – Respondent
MSA 121/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2021
BEFORE
THE HON9BLE MR. JUSTICE R. NATARAJ
M.S.A. NO. 121 OF 2017 (RO)
BETWEEN:
MR. DESMOND PRABHU,
S/O LATE W.D. COSTA,
AGED ABOUT 77 YEARS,
NO.51, MOHINI APARTMENTS,
REST HOSUE ROAD,
BANGALORE - 560 001.
... APPELLANT
(BY SRI. AJITH ANAND SHETTY, ADVOCATE)
AND:
LATE ROBERT D'SOUZA
BY HIS LEGAL HEIR
1.
ADRIAN ALVA,
S/O LATE ROBERT ALVA,
AGED ABOUT 58 YEARS,
RESIDING AT ASHIANA, GREEN VIEW,
NEAR URVA CHURCH,
MANGALORE - 575 006.
2.
JOE D'COSTA,
S/O LATE W.D. COSTA,
AGED ABOUT 62 YEARS,
3.
MRS. HAZEL PINTO,
D/O LATE W.D. COSTA,
AGED ABOUT 60 YEARS,
2
4.
MRS. LEONILLA D'COSTA,
D/O LATE W.D. COSTA,
AGED ABOUT 62 YEARS,
RESPONDENTS 2 TO 4 WERE
RESIDING AT GUNDU RAO ROAD,
MANNAGUDDA,
MANGALORE - 575 003.
5.
MR. LESLIE PRABHU D'COSTA,
S/O LATE W.D. COSTA,
AGED ABOUT 82 YEARS,
RESPONDENT 5 IS
RESIDING AT NO.59,
ETHIRAJ SALAI,
CHENNAI - 600 105.
6.
MR. MELVILLE D'COSTA,
S/O LATE W.D. COSTA,
AGED ABOUT 81 YEARS,
RESPONDENT 6 IS
RESIDING AT NO.63,
S.NO.1368, SADASHIV NAGAR,
BELGAUM.
SINCE DECEASED REPRESENTED BY
APPELLANT AND RESPONDENTS
4, 5, 7, 8, 9, 10 AND 11.
7.
MR. CONRAD PRABHU,
S/O LATE W.D. COSTA,
AGED ABOUT 80 YEARS,
RESPONDENT 7 IS
RESIDING AT PLOT NO.64,
FLAT NO.301,
SUVARNA APARTMENTS,
KANSAL SECTION,
AMBARNATH - 421 502.
8.
MRS. ENID PRABHU,
W/O LATE ALWYN D'COSTA,
AGED ABOUT 77 YEARS,
3
9.
MRS. SHIREEN D'SOUZA,
D/O LATE ALWYN D'COSTA,
AGED ABOUT 53 YEARS,
10.
MR. SUNIL PRABHU,
S/O LATE ALWYN D'COSTA,
AGED ABOUT 51 YEARS,
11.
MR. SONJOY PRABHU,
S/O LATE ALWYN D'COSTA,
AGED ABOUT 45 YEARS,
RESPONDENTS 8 TO 11 ARE
RESIDING AT NO.16,
SPENCER ROAD, FRASER TOWN,
BANGALORE - 560 005.
... RESPONDENTS
(BY SRI. A.MADHUSUDHANA RAO, ADVOCATE FOR R1;
R5, R8, R9, R10 AND R11 SERVED;
NOTICE TO R2 TO R4, R6, R7 ARE DISPENSED WITH VIDE
ORDER DATED 25.06.2018;
NOTICE TO R2 TO R5, R7 AND R8 ARE DISPENSED WITH
VIDE ORDER DATED 03.09.2021;
NOTICE TO R11 IS DISPENSED WITH VIDE ORDER
DATED 29.09.2021)
THIS MSA IS FILED UNDER SECTION 43(1)(U) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.07.2017
PASSED IN RA.NO.146/2016 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,
D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER
DATED 1.09.2016 PASSED IN OS.NO.527/2006 ON THE FILE OF
THE I ADDL. CIVIL JUDGE AND JMFC, MANGALURU, D.K.
REJECTION OF PLAINT.
THIS MSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
4
J U D G M E N T
1.
This appeal is filed by the appellant/defendant No.8 in
O.S.No.527/2006 challenging the order passed by the II
Additional Senior Civil Judge and CJM, Mangaluru, Dakshina
Kannada (henceforth referred to as 'First Appellate Court')
in R.A.No.146/2016 whereby the judgment and decree
passed by the I Additional Civil Judge and JMFC,
Mangaluru, Dakshina Kannada (henceforth referred to as
'Trial Court') in O.S.No.527/2006 was set aside and the
case was remitted back to the Trial court for re-
consideration.
2.
A suit in O.S.No.527/2006 was filed for the following
reliefs:
"a. For a declaration that the Plaintiff and
other four children of Marcel D'Souza, viz.,
Ambrose D'Souza, Thimothy D'Souza
and Benedicta Alva and Callistus D'Souza
have inherited the mulageni right over the
Plaint
schedule
item
No.1
and
No.2
property from Marcel D'Souza.
b.
for further declaration that out of the
Mulageni right jointly inherited by the
children of Marcel D'Souza in respect of
schedule
item
No.1
and
No.2
property
only
1/5th
right
5
inherited by Callistus D'Souza has been
purchased by W.D.Costa in Ex.Case
No.258/1969 and the remaining 4/5th
right remained intact with the Plaintiff
and other three children of Marcel
D'Souza
And
they
are
in
actu
