Sarjerao Manikrao Chitale And ... vs Bhausaheb Kisan Takale And Others
2016 Latest Caselaw 5347 Bom

                                           1                         938 wp 349.16.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                        
                             WRIT PETITION NO. 349 OF 2016




                                                
    1.      Sarjerao s/o Manikrao Chitale,
            Age: 32 years, Occ: Agril.




                                               
    2.      Rupchand s/o Vinayak Chitale,
            Age: 35 years, Occ: Agril.

    3.      Mandabai s/o Vishnu Chitale,




                                        
            Age: 40 years, Occ: Agril.
            All R/o Dangewadi, Tq. Pathardi,
                             
            Dist. Ahmednagar.                           ...       Petitioners

                     Vs.
                            
    1.      Bhausaheb s/o Kisan Takale,
            Age: 60 years, Occ: Agril.

    2.      Sow. Sainabai Vikram Barde,
      


            Age: 50 years, Occ: Household
   



    3.      Smt. Rambhabai Kisan Takale,
            Age: 70 years, Occ: Agril.
            All R/o Dangewadi, Tq. Pathardi,
            Dist. Ahmednagar





    4.    Ashok s/o Vitthal Diwate,
          Age: 40 years, Occ: Agril.
          R/o Mali Babhulgaon, Tq. Pathardi,
          Dist. Ahmednagar.                          ...          Respondents
                                     ----





    Mr. M.A. Kulkarni, Advocate for the petitioners.
    Mr. D.R. Markad, Advocate for the respondents.
                                     ----

                                       CORAM : T.V. NALAWADE, J.

DATE : 16-09-2016.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard both the sides by consent for disposal.

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2. This petition is filed to challenge the order made on Exhibit-31 filed in R.C.S. No. 509 of 2012 which is pending before

Civil Judge Junior Division, Pathardi. The application was filed for addition of more pleadings as follows.

"In the written statement filed by defendant, defendant has shown house property situated inside of his portion and the

plaintiff wants to contend that the said house property does not belong to defendant but it belongs to one Akolkar".

"Defendant has shown one bore well inside of his portion and it is the case of the plaintiff that this bore well was

taken by plaintiff after purchasing the property in the year 2009".

3. The trial court has rejected the application filed for amendment by holding that due diligence was not shown and further there is no record with the plaintiff to show that the house

and the bore well were there in the suit property and if they were

there prior to the date of the suit the plaintiff ought to have mentioned these things in the suit itself.

4. During arguments the learned counsel for the petitioners considered that, there was no need of making amendment in respect of the house property, if the plaintiff admits that the property does not belong to plaintiff and it belongs to one

Akolkar. In view of this submissions and nature of pleadings the amendment to that extent could not have been allowed and the trial court has not committed error in that regard. However, there is a dispute in respect of the bore well and dispute is taken up to revenue authorities. Copy of mutation made by the revenue authority dated 08/08/2013 is produced on record and it shows that due to the dispute the revenue authority has shown the names of both plaintiff and defendant in respect of the bore well.

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5. It is the contention of both the sides that the bore well

was taken in the year 2012. Admittedly, the sale deed was executed in favour of defendant first in time in the year 1985 and if the

property is to be measured the priority will have to be given to sale deed executed in favour of the defendant. The plaintiff wants to get fixed the boundaries of his property on the basis of sale deed

executed in favour of plaintiff in the year 2009. Thus, the dispute can be settled once for all and it cannot be said that the nature of the suit is changing due to the amendment which plaintiff is seeking

in respect of the bore well. The burden will be on the plaintiff to

prove the case of plaintiff that the bore well was taken by plaintiff and so no prejudice will be caused to the defendant if such amendment is allowed. Learned counsel for the respondents places

reliance in the case of J. Samuel and Ors Vs. Gattu Mahesh and Ors. reported in 2012(4) Mh.L.J. and in the case of Prakash Ratanlal @ Ratansa Kasari Vs. Bhika s/o Banda Dhage and

Anr. reported in 2010 (1) Mh.L.J., and he submitted that due

diligence is not shown.

6. The facts and circumstances of each and every case are

always different. In view of the nature of the dispute which is quoted above and the record which is available for deciding the dispute. This court holds that amendment with regard to the contention of bore well needs to be allowed. In the result, the

petition is allowed. The order made by Learned Judge of the trial in respect of the bore well is hereby set aside and application only to that extent is allowed. Rule is made absolute in those terms

(T.V. NALAWADE) JUDGE mub