Shaikh Maqbul Ahmed vs Tukaram Shamrao Choudhari And ...
2016 Latest Caselaw 5850 Bom

                                                                            20_WP771014.odt


             
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                            BENCH AT AURANGABAD

                             WRIT PETITION NO. 7710 OF 2014




                                                           
    Shaikh Maqbul Ahmed
    Age: 50 years, Occu.: Agri.,
    R/o Para, Tq. Washi, Dist. Osmanabad.                         ..PETITIONER




                                                          
                   VERSUS

    1.  Tukaram Shamrao Choudhari




                                                
         Age: 72 years, Occu.: Agri.,
         R/o Para, Tq. Washi, Dist. Osmanabad.
                                    
    2.  Smt. Triveni Dilip Shelke
         Age: 44 years, Occu.: Household,
                                   
         R/o As above.                                            ..RESPONDENTS

                                       ....
    Mr. P.K. Deshmukh, Advocate for petitioner.
           

    Mr. A.B. Hiwale, Advocate for respondents.
                                       ....
        



                                          CORAM :  T.V. NALAWADE, J.

DATED : 04th OCTOBER, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent, heard both

sides for final disposal.

2. The present petition is filed to challenge order dated 18 th July,

2014 made in application at Exhibit 61 in Regular Civil Suit No. 322 of

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2012 which is pending before the Joint Civil Judge, Junior Division,

Washi. The suit is filed by present petitioner for specific performance of

contract of sale of agricultural land. In the suit, relief of injunction was

also claimed by contending that in contract of sale possession was handed

over to the plaintiff. The first application field for temporary injunction

was not pressed and other application filed for temporary injunction to

protect possession came to be rejected. Issues are framed.

3.

In the application for amendment the plaintiff contended that

when he lost in temporary injunction application, the defendant forceably

took possession. It is also contended that during the pendency of the suit,

Defendant No.1 sold some portion to Defendant No.2. After making this

contention, the plaintiff contended that he now wants to add the relief of

possession in plaint and he wants the relief of mesne profit also.

4. The Trial Court has given reasoning that so called agreement

of sale was not registered and no stamp duty was paid when possession

was shown to be given under the agreement dated 07 th January, 1997. It

cannot disputed that besides the written agreement there can be evidence

to get the relief of specific performance of contract of sale. When the

plaintiff has come with specific case that during the pendency of the suit

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he lost possession, the Trial Court ought to have allowed the amendment.

The amendment will not change the nature of the suit as ultimate relief is

a specific performance of contract of sale of immovable property. Thus

interference is warranted in the order made by the Trial Court.

5. In the result, petition is allowed. Order made at Exhibit 61

refusing the amendment claimed as 2(A) and 2(B) is hereby set aside.

The application in respect of those reliefs is also allowed. Rule is made

absolute in those terms.

( T.V. NALAWADE, J. ) SSD

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