Bombay High Court
Sainath Baban Sable And Others vs Survarna Vijay Borude And Others on 22 November, 2016
Bench: T.V. Nalawade
1 WP 10983-84 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.10983 of 2016
1) Sainath s/o Baban Sable,
Age 32 years,
Occupation : Agriculture.
2) Ganga w/o Balasaheb Damre,
Age 31 years,
Occupation : Household.
3)
Jijabai w/o Baban Sable,
Age 52 years
Occupation : Household.
All R/o Plot No.7, B Type,
Ashirwad Society,
Saint Tukaram Nagar,
Near Police Chowki, Pimpri,
Pune - 18. .. Petitioners.
Versus
1) Survarna w/o Vijay Borude,
Age 37 years,
Occupation : Household.
2) Mitali Babanrao Sable,
Age 23 years,
Occupation : Education.
Both R/o Tange Galli,
Behind Court,
House No.5428, Ahmednagar.
3) Yuvraj s/o Vishwanath Netake,
Age 28 years,
Occupation : Agriculture,
R/o Takalsing, Taluka Ashti,
District Beed.
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2 WP 10983-84 of 2016
4) Haridas s/o Maroti Wable
Age 60 years,
Occupation : Agriculture,
R/o Deulgaon Rasal,
Taluka Baramati,
District Pune. .. Respondents.
With
WRIT PETITION NO. 10984 OF 2016
1) Sainath s/o Baban Sable,
Age 32 years,ig
Occupation : Agriculture.
2) Ganga w/o Balasaheb Damre,
Age 31 years,
Occupation : Household.
3) Jijabai w/o Baban Sable,
Age 52 years
Occupation : Household.
All R/o Plot No.7, B Type,
Ashirwad Society,
Saint Tukaram Nagar,
Near Police Chowki, Pimpri,
Pune - 18. .. Petitioners.
Versus
1) Survarna w/o Vijay Borude,
Age 37 years,
Occupation : Household.
2) Mitali Babanrao Sable,
Age 23 years,
Occupation : Education.
Both R/o Tange Galli,
Behind Court,
House No.5428, Ahmednagar.
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3 WP 10983-84 of 2016
3) Yuvraj s/o Vishwanath Netake,
Age 28 years,
Occupation : Agriculture,
R/o Takalsing, Taluka Ashti,
District Beed.
4) Haridas s/o Maroti Wable
Age 60 years,
Occupation : Agriculture,
R/o Deulgaon Rasal,
Taluka Baramati,
District Pune. .. Respondents.
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Shri. Rahul R. Karpe, Advocate, for petitioners.
Shri. K.D. Bade Patil, Advocate, for respondent No.1.
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CORAM: T.V. NALAWADE, J.
DATE : 22 NOVEMBER 2016
ORAL JUDGMENT:
1) Rule. Rule made forthwith. Heard both the
sides for final disposal by consent.
2) Writ Petition No.10983/2016 is filed to
challenge the order made on Exhibit 134 in Special Civil
Suit No.37/2014 (Old Regular Civil Suit No.16/2009) by
which the prayer was made by defendant Nos.1 to 3 for
allowing them to amend the written statement in view of
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the amendment of plaint allowed by the Court. This
application is rejected by the trial Court. The other
proceeding, Writ Petition No.10984/2016 is filed to
challenge the order dated 1-12-2014 made on Exhibit 117
by which amendment in the plaint was allowed. By
allowing the amendment the Court has allowed to include
more properties as suit property in the partition suit.
3) The submissions made show that defence was
taken by the present petitioners, original defendant Nos.1
to 3, that some properties were not included in the suit
and so the suit was bad for non inclusion of the remaining
property in the suit filed for partition. It appears that
subsequently those properties came to be mentioned in
the amendment application and the Court allowed the
amendment by order dated 1-12-2014. To challenge the
said order, Writ Petition No.10984/2016 is filed. It can be
said that it is filed after 2 years from the date of the order.
In any case, the suit could not have been dismissed in
entirety due to such defence and it was open to the Court
to allow the plaintiff to include some properties if the
parties were thinking that these properties also need to be
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considered in the suit. Thus, on merits also it cannot be
said that the Court committed any error. In any case the
defendants took almost 2 years for challenging the order
and the suit is filed for relief of partition. The real
intention behind filing this petition can be inferred. Due
to this circumstance, the writ petition challenging the
amendment order cannot be allowed.
4) When the plaint was allowed to be amended, in
ordinary course, the Court ought to have allowed the
defendants to file additional written statement. It appears
that by making some observations the Court has refused
to allow this application. It appears that the defendants
want to make counter claim that the property which was
newly added was their self acquired property. In a suit for
partition the burden is on the plaintiff to prove that he is
entitled to the share in the property and the property is
the joint Hindu family property. When there is no such
proof, the suit itself fails and there is virtually no necessity
of counter claim. By making similar observations the trial
Court has held that there is no necessity of making
counter claim. However, the defendants want to contend
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that in the past there was one suit in respect of some
properties, which are newly added and the suit is decided
and so the previous decision would operate as res judicata
to the present suit. This point can be decided by simply
filing copy of judgment of the said suit. If the properties,
which now the plaintiff has added as the suit property,
were the suit properties in the previous suit, in ordinary
course, the defendants need to be allowed to file
additional written statement and issue on that point also
needs to be framed. In view of this, this Court holds that
permission needs to be given to the defendant Nos.1 to 3
to file additional written statement in respect of the
amendment to the plaint allowed by the Court. It appears
that the suit is kept for final argument. In view of these
circumstances, both the sides are to appear before the
trial Court on 28th November 2016 and additional written
statement be filed prior to 2 nd December 2016. After filing
written statement additional issue if required is to be
framed and the suit is to be decided. There is no necessity
to lead oral evidence if the issue of res judicata is framed
and the certified copy of the judgment delivered in the
previous suit can be considered for said the issue. With
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these observations, following order is made :
5) Writ Petition No.10984/2016 is dismissed. Rule
is discharged.
6) Writ Petition No.10983/2016 is allowed. The
order made by the trial Court on application Exhibit 134 is
set aside to some extent and the defendants are allowed to
file written statement with regard to the amendment
made in the plaint. Both the parties are to appear before
the trial Court on 28-11-2016 and additional written
statement is to be filed before 2nd December 2016. After
filing of additional written statement, additional issues if
required are to be framed on the same day. There would
be no necessity to lead oral evidence if issue of res
judicata is framed and certified copy of the judgment
delivered in the previous suit is to be considered for the
said issue. Rule is made absolute in the above terms.
Sd/-
(T.V. NALAWADE, J. )
rsl
