Bombay High Court
Sadikabi Wd/O Amanullakhan & ... vs Shankar S/O Punjaji Kawaskar on 27 June, 2016
Bench: A.S. Chandurkar
wp174.15.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.174 OF 2015
PETITIONERS: 1. Sadikabi wd/o Amanullakhan, aged
62 yrs.,
2. Giyaullakhan S/o Amanullakhan,
aged 44,
3. Naimullakhan S/o Amanullakhan,
aged 40,
4. Sharifullakhan s/o Amanullakhan,
aged 37,
Nos.1 to 4,all r/o Pahurjira, Tq.
ig Shegaon, Distt. Buldana.
5. Shamimbano w/o Sk. Sayeed, aged
42 yrs., r/o Pune, Distt. Pune.
-VERSUS-
RESPONDENTS: 1. Anusayabai wd/o Punjaji Kawaskar
(Deleted as per
order dt.16-12-
2015.)
2. Shankar S/o Punjaji Kawaskar, aged
52 yrs Occ. Service,
3. Vilas S/o Punjaji Kawaskar, aged 52
yrs., Occ. Service,
4. Krushna s/o Punjaji Kawaskar, aged
35 yrs.,
All r/o Maorgaon Disgras, Tq.
Shegaon, Dist. Buldana.
5. Sau. Rukhmini w/o Mahadeo Wagh,
Occ. Household, Aged 55 yrs, R/o
Tunki, Tq. Sangrmpur, Distt.
Buldana.
6. Sau. Suman w/o Janrao Lahukar,
aged 46 yrs., Occ. Household, R/o
Andura Tq. Balapur, Distt. Akola.
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7. Sau. Satyabhama w/o Pandurang
Bhalurkar, Aged 33 yrs., Occ.
Household r/o Saundala, Tq. Telhara,
District Akola.
8. Sau Nandabai w/o Bhagwan Shinde,
Aged 31, Occ. Household, r/o Dighi
Tq. Nandura, Distt. Buldana.
Shri A. V. Bhide, Advocate for the petitioners.
Shri R. J. Kankale, Advocate for the respondent Nos.2 to 8.
Respondent No.1 is deleted.
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CORAM: A.S. CHANDURKAR, J.
ig DATED: 27
th JUNE, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioners who are the original defendants in the
suit filed by the respondents for declaration that the petitioners
have no right to disturb their peaceful possession in respect of the
field Gat No.1112 are aggrieved by the order passed by the trial
Court partly allowing the amendment application that was moved
by the respondents.
3. In the suit filed by the predecessor of the respondents,
it was pleaded that Punjaji - the original plaintiff was in cultivating
possession of the suit land as a tenant since 1975-76. In para 3 of
the plaint, it was admitted that the original defendant Nos.1 and 2
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were near relatives of the defendant No.1 who was the owner of
the suit field. Reference is also made to the proceedings with
regard to determination of purchase price. Written statement was
filed on behalf of the defendants stating therein that the defendant
No.1 was the owner of the field in question. The plaintiff moved
an application below Exhibit-90 for amending the plaint. In paras
2(A), 2(B) and 2(C), the details with regard to earlier proceedings
under the Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act, 1958 were mentioned. The averments in the plaint at
para 3 that the defendant No.1 was the owner of the suit field was
sought to be deleted. There were other minor corrections in para 4
of the plaint. This application was opposed by the defendants on
the ground that the admission pertaining to ownership of the
defendant No.1 could not have been withdrawn. The trial Court
by the impugned order partly allowed the application and
permitted the amendment in paras 2(A), 2(B) & 2(C) as well as
paras 3 and some portion in para 4. Being aggrieved, the
petitioners have challenged the said order.
4. Shri A. V. Bhide, the learned Counsel for the
petitioners submitted that the proposed amendment has the effect
of withdrawing the admissions that were pleaded in the plaint.
According to him, the plaintiffs had admitted that the defendant
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No.1 was the owner of the field in question and by the proposed
amendment, said admission was sought to be withdrawn. He
submitted that the averments made in paras 2(A) to 2(C) were not
relevant and they pertained to earlier proceedings which had
become final. According to him, said amendment as proposed in
paras 2(A) to 2(C) proceeded on the basis that the ownership of
the defendant No.1 was sought to be denied and a right in favour
of the original plaintiff with regard to title was sought to be
asserted. According to him, even these amendments could not
have been allowed. He placed reliance upon judgment of the
Hon'ble Supreme Court in Ram Niranjan Vs. Sheo Prakash 2016
(3) Mh.L.J. 172 and submitted that admissions once made in the
pleadings cannot be permitted to be withdrawn
5. Shri R. J. Kankale, the learned Counsel for the
respondent Nos.2 to 8 supported the impugned order. According
to him, the amendment was found necessary by the trial Court. He
submitted that the proposed amendment in paras 2(A) to 2(C)
related to earlier proceedings between the original plaintiff and
the original defendant and the adjudication made therein. He
further submitted that in the light of the aforesaid pleadings, the
trial Court rightly permitted the deletion in para 3 of the plaint.
He submitted that the amendment in para 4 was of a formal
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nature. According to him, though the defendant No.1 was a party
in the earlier tenancy proceedings, the relevant facts in that regard
were not brought on record in the written statement and therefore,
the trial Court was justified in allowing the application. He placed
reliance upon the decision of the Hon'ble Supreme Court in S. P.
Chengalvaraya Naidu v. Jagannath AIR 1994 Supreme Court 853.
6. I have heard the learned Counsel for the parties at
length and perused the proposed amendment.
ig In the plaint as initially filed, it has been pleaded that
since 1975-76 the plaintiff was in cultivating possession as a
tenant. In para 3, he has then admitted that the defendant No.1
was the owner of the field in question. He has referred to the
proceedings with regard to fixation of purchase price. In that
context, if the proposed amendment in paras 2(A) to 2(C) are
perused, the same pertain to various orders which have passed in
tenancy proceedings even prior to purchase of the suit field by the
original defendant No.1. In that background, I find that the trial
Court has not committed any error in so far as it has allowed the
amendments in paras 2(A) to 2(C).
8. In so far as the amendment sought in para 3 of the
plaint is concerned, the plaintiff seeks to delete the following
averments:
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3..............................................................
"and defendant no.1 is the owner of
above said field."
This amendment has been permitted to be carried out. The effect
of allowing such amendment is that the plaintiff is permitted to
withdraw his admission that the defendant No.1 was the owner of
the field in question. Considering the law laid down by the
Hon'ble Supreme Court in Ram Niranjan (supra), a categorical
admission made in the pleadings cannot be permitted to be
withdrawn by way of amendment. To that extent, it is found that
the amendment as permitted by the trial Court does not deserve
to be granted. The decision in the case of S.P. Chengalvarya Naidu
(supra) cannot be applied in the present facts in so far as this
particular amendment is concerned. The other averments that are
sought to be amended in para 4 are formal in nature and there is
no need to interfere with that part of the amendment.
9. The trial Court while partly allowing the application
for amendment failed to notice that the proposed amendment
resulted in withdrawal of the admission by the plaintiff. To that
extent, the order passed by the trial Court is found to have been
passed with material irregularity and hence is required to be
modified. Though it was sought to be contended by the learned
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Counsel for the petitioners that even the proposed amendment in
paras 2(A) to 2(C) could not have been allowed as the plaintiff
had no legal right in the land in question, the said aspect is a
matter to be considered on merits.
10. In view of aforesaid, the following order is passed:
(a) Order dated 13-11-2014 passed by the trial Court
below Exhibit-90 is partly modified and the amendment sought in
para 3 of the plaint for deleting the words "and defendant no.1 is
the owner of above said field" stands disallowed.
(b) Rest of the order passed by the trial Court is
maintained.
(c) The trial Court shall decide the suit on its own merits
and in accordance with law.
(c) Rule is made absolute in aforesaid terms. No costs.
JUDGE
//MULEY//
