Plaint Presented By The Plaintiffs Under Order Vii Rule 1read With Section 26 Of Code Of Civil Procedure

IN THE COURT OF HON’BLE MUNSIFF PLAINT PRESENTED BY THE PLAINTIFFS UNDER ORDER VII RULE 1READ WITH SECTION 26 OF CODE OF CIVIL PROCEDURE Plaintiffs in the above suit most humbly submit, as follows,

1. The plaintiffs are permanently residing at the address shown in the cause title and all summonses, notices and other processes of this Hon’ble Court to be served on the plaintiffs in the address shown in the cause title. 2. The defendants are residing at the address shown in the cause title and all summonses, notices and other processes of this Hon’ble Court to be served on the defendants in the address shown in the cause title. 3. Plaintiff No.1 is the second wife and plaintiff No.2 is the son, of ……………………………….by whom the plaint schedule property measuring 67.50 Cents of land was acquired via the partition deed No. 2345/1975 of Registrar Office, and in his exclusive possession till death. Defendant Nos. 1 to 5 are the children born to the above mentioned Kader in his first wife. Being so the said Kader died on 08.08.2010 and the rights over the plaint schedule property devolved upon plaintiffs and defendants being the surviving legal heirs. Thereafter the plaintiffs and defendants were in joint possession, enjoyment and ownership of the above mentioned property. 4. Later on 19.03.2015 plaintiffs herein had instituted a civil suit as O.S.No. 277/2015 for the partition and separate possession of suit schedule property against the defendants herein before the Hon’ble Principal Munsiff Court-II. In the meantime of trial of O.S.No. 277/2015 the said suit was referred to mediation as per the order of Hon’ble Principal Munsiff Court-II, and in the course of mediation, the parties arrived at a settlement and both the parties executed a settlement agreement on 12.04.2018 vide the proceedings of Mediation Centre, mutually consenting and unequivocally accepting all the terms and conditions set forth in the settlement agreement. Certified copy of the memorandum of agreement is produced herewith and may be considered as part of the plaint. 5. Consequently on 18.06.2018 in terms of the memorandum of agreement entered into and executed between the plaintiffs and

defendants therein, O.S.No. 277/2015 was dismissed as withdrawn by the Hon’ble Principal Munsiff Court-II,. Certified copy of the judgment in O.S.No. 277/2015 is produced herewith and may be considered as the part of plaint. 6. The plaintiffs and defendants in the instant suit were in the same position of plaintiffs and defendants respectively in O.S.No. 277/2015 of Hon’ble Principal Munsiff Court-II, All the plaintiffs and defendants in O.S.No.277/2015 signed the memorandum of settlement agreement executed between them on 12.4.2018 at Mediation Centre. 7. As per the memorandum of agreement entered into, signed and executed, both parties agreed to partition the plaint schedule property according to the respective shares to which they are legally entitled. As per No.2 of terms and conditions, the parties have mutually understood and consented to the allocation of share of property according to their entitlement to respective shares and the division of plaint schedule property with precise metes and bounds. 8. The parties arrived at a mutual agreement after verifying the proportion and entitlement to their respective shares fixed according to the settlement agreement. The division of property in metes and bounds and each party’s respective share was accurately and separately marked in the sketch of proposed partition plan of plaint schedule property and that was duly examined, consented to and agreed by the parties by the terms of settlement agreement. 9. The third condition set forth in the memorandum of agreement that, the first plaintiff should take necessary steps for appointment of legal guardian of second plaintiff and further procedures as per the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. Those terms of conditions in the settlement agreement was duly fulfilled by the first plaintiff herein. Accordingly the first plaintiff and Aboobacker.A.K, the first defendant herein were appointed as the legal guardian of second plaintiff. Certificate of appointment of legal guardian issued by the Ministry of Social Justice and Empowerment in respect of the Ward Muhammed Ashraf.K is produced herewith. 10. The entire things being stood so, the plaintiffs herein approached the defendants to partition the suit schedule property in terms of the memorandum of agreement executed on 12.4.2018.

Though the defendants are bound to fulfill the terms of memorandum of agreement the defendants refused to comply it even after repeated requests. 11. Both the plaintiffs and defendants were present in person and signed the agreement at the mediation center. After that Hon’ble Principal Munsiff Court-II, recorded the settlement arrived at between the parties and consequently the O.S.No.277/2015 was dismissed as withdrawn in view of the terms of settlement. It is humbly submitted that once a memorandum of agreement is signed by the parties in mediation, to which the court has referred the matter, then the parties cannot be permitted to resile form the terms of the agreement. 12. A perusal of the memorandum of agreement dated 12.04.2018 executed between the plaintiffs and defendants vide the proceedings of Mediation Centre, shows that both the parties are required to register the deed of partition subject to the prior fulfillment of terms numbering two to six of settlement agreement. The third condition was already performed by the first plaintiff as stated in paragraph 9 of this plaint, with the cooperation and assistance of defendants herein. 13. The fourth condition which ought to be fulfilled by the parties prior to the registration of partition deed as agreed, provided for the consent granted by all parties, out of their free will, to the 4th defendant Jameela to cut down the Jack fruit tree situated in the share allotted to the first plaintiff as per settlement agreement. It is most humbly submitted that first plaintiff is always ready and willing to perform the said condition and further she had informed her readiness to make necessary arrangements for carrying out the same. But no positive response received in this regard from the defendants till date. 14. By consenting to the fifth condition of settlement agreement the parties are bound to mention in the proposed deed of partition about the right of residence up to the remaining life, accrued on the first plaintiff as a result of mutual agreement, over the house situated in the share entitled to the second plaintiff. But as a result of deliberate and willful non-compliance of conditions by the defendants the said condition also remains not performed as on till date. 15. The sixth condition set forth in the settlement agreement casted an obligation on the parties to determine their share of

profits to which they are entitled out of the profits kept and earned by the second plaintiff from the plaint schedule property and the parties were mutually agreed to hand over the profit share before the registration of partition deed. 16. It is also most humbly submitted that plaintiffs are always ready and willing to abide by the terms of agreement and already performed some of the conditions. On the contrary the defendants were failed to fulfill the terms of the settlement agreement. The plaintiffs herein submits that the defendants committed a willful default in complying the terms and conditions of the memorandum of agreement executed. 17. That the plaintiffs have no other alternative and efficacious remedy than to approach before this Hon’ble Court for the relief of mandatory injunction directing the defendants to partition the suit schedule property in terms of the memorandum of agreement executed in mediation. Hence the present suit. 18. The cause of action for this suit arose on 12.04.2018, when the plaintiffs and defendants executed memorandum of agreement in O.S.No.277/2015 of Hon’ble Principal Munsiff Court-II, and on 18.06.2018 when O.S.No. 277/2015 was dismissed as withdrawn in terms of the memorandum of agreement entered into and executed between the plaintiffs and defendants therein and thereafter when the defendant’s continued defiance to the request of plaintiffs for the partition of plaint schedule property according to the terms of memorandum of agreement and thereafter the cause of action continues and within the jurisdiction of this Hon’ble Court.