Mohammad Chand Nadaf vs Appasaheb Amin Nadaf
2011 Latest Caselaw 161 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                           CIVIL APPELLATE JURISDICTION




                                                      
                      CIVIL WRIT PETITION NO. 9553 OF 2010

    Mohammad Chand Nadaf
    and others                                  ...            Petitioners




                                                     
                  Versus

    Appasaheb Amin Nadaf
    and others                                  ...            Respondents




                                             
    Mr. S. S. Patwardhan a/w Mr. Ajay Magdum, for the petitioners
                            
    None for the respondents

                                        CORAM: R. M. SAVANT, J.

DATED : 2nd December, 2011 P.C. :

1. At the outset, the learned counsel appearing for the petitioner

seeks leave to replace-Exhibit C i.e. written statement filed on behalf of

defendant Nos. 3 and 4 by the correct written statement filed on behalf

of the said respondents. Leave granted. Amendment to be carried out

forthwith.

2. In the above petition, a fresh notice was issued on 22nd

February , 2011 indicating that this Court proposed to dispose of the

above petition at the admission stage. Inspite of service of notice, none

appears for the respondents. In view of the limited issue that is

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involved in this petition, this Court deems it fit to hear the petition

finally at the admission stage. Hence, Rule, made returnable forthwith

and heard.

3. The above petition takes exception to the order dated 5th

October, 2010 passed by the learned Civil Judge, Junior Division, Jath by

which order the application filed by the defendant nos. 3 and 4 for

amendment of the written statement came to be rejected.

4. Shorn of unnecessary details, a few facts can be stated thus:

i. The respondents herein, who are the original plaintiffs, had

filed Regular Civil Suit no. 304 of 1987 in the Court of the Civil

Judge, Junior Division, Jath for a decree of perpetual injunction and

for possession which relief was prayed in the alternative, against

the defendants. In the context of the issue which arises for

consideration in the present petition, it would be relevant to note

the issues that were framed in the said suit, which read thus:

1) Does the plaintiff prove his title over the suit property ?

2) Does the plaintiff prove that the defendants encroached 38-Aar area of the suit land ?

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3) Is the plaintiff entitled for the possession of encroached

portion of 38-Aar ?

4) Does the plaintiff prove the obstruction and interference in his peaceful possession over the suit property by the defendants ?

ii. It was the case of the plaintiff that he is the owner of land

bearing Block No. 222 admeasuring 6 Hectare 54 Aar, situated at

Karajanagi, Taluka Jath which he had purchased under a registered

sale deed and which he was cultivating through his relative Jangali

Bapu Nadaf on hire basis. It was his case that in his absence, the

defendants started encroaching over the portion of the suit land

and also obstructing his possession and therefore he was

constrained to file the said suit for perpetual injunction and for

removal of the encroachment. The defendant Nos. 2 and 3 have

filed written statement and contended that one Appasaheb Naik

was the original owner of the suit land (Block No.222) and land-

Block No. 220 and that the defendant Nos. 1 to 3 purchased the

land bearing No.220 under a registered sale deed, 7-8 years prior

to the said suit. The said land- Block 220 is on southern side of

the suit land. It was their case that the said Appasahab Naik

fixed a boundary by putting boundary stones and in terms of the

said boundary, they are in enjoyment of their land.

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iii. The said suit came to be decreed by judgement and order

dated 22nd September, 2001. Aggrieved by the said decree, the

defendant Nos. Nos. 4 and 5 filed Regular Civil Appeal No. 317 of

2001 which came to be allowed and the matter came to be

remanded back for trial afresh after the appointment of the court

commissioner for measurement. After remand of the said suit,

the petitioners filed an application for amendment of the written

statement. In terms of the said amendment, the ig petitioners

sought deletion of the reference to the defendant no.3 and from

the point of view of the present petition, they sought amendment

to the following effect:

"That the defendant No.1 was cultivating the land bearing

Gut no. 220 and 222 belonging to Appasaheb Miraso Naik

and when they asserted their right as tenants, the owner

sold the land to the defendant no.1."

The said amendment application was opposed on the

ground that a new defence of tenancy was sought to be

incorporated in the written statement which was not a part of the

written statement as originally filed. The trial Court considered the

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said amendment application and by the impugned order, has

rejected the same, the sum and substance of the reasoning of the

trial Court is that the defendants who are the proponents of the

said amendment application were trying to introduce a new case

of tenancy which was not there in the written statement as

originally filed.

5.

Heard Mr. Patwardhan, the learned counsel for the petitioners.

The principal contention of Mr. Patwardhan is that the trial Court has

proceeded on a wrong premise that by the said amendment, the

defendants were trying to introduce a new case of tenancy when in fact,

what was sought to be introduced by way of the amendment was, as to

how the said defendant no.1 had derived title to the property. The

learned counsel would contend that in view of the trial Court having

proceeded on a wrong premise, the amendment sought which was only

clarificatory in nature, has been rejected.

6. In the instant case, it is pertinent to note that the grievance of

the plaintiff is as regards alleged encroachment carried out by the

defendants on the plot of land bearing Gut No. 222. The defendants are

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in possession of gut No. 220 which is the adjacent land. The plaintiff

has filed the suit for perpetual injunction and for possession of the

encroached portion against the defendants. Reading of the proposed

amendment ex-facie discloses that the defendants filed the said

amendment application only to incorporate an averment as to how the

defendant no.1 derived his title and in that context they had stated

that when the defendant no.1 asserted his tenancy right that the

original owner Appasaheb Miraso Naik, sold the property to him. By the

said amendment, they were not seeking to introduce a new case of

tenancy and the same would also not arise as the reliefs sought in the

suit is of removal of the alleged encroachment of the defendants. The

trial Court, in my view, has proceeded on a wrong premise that by the

amendment, a new case of tenancy was sought to be introduced. In my

view, the amendment does not change the defence of the defendants in

the said suit nor the issue of tenancy would arise. In that view of the

matter, the trial Court has, in rejecting the said application, failed to

exercise the jurisdiction vested in it. The impugned order, therefore,

would have to be quashed and set aside and is accordingly quashed and

set aside. Resultantly, the Application Exh. 177 would be required to

be allowed. Defendants to carry out the amendment in the written

statement and the trial court to take on record the amended written

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statement that would be filed by the concerned defendants The trial

Court, thereafter, to proceed with the suit in accordance with law.

7. Rule is accordingly made absolute in the aforesaid terms with

the parties to bear their respective costs.

                            ig                    (R. M. SAVANT, J.)