Bombay High Court
Nabha @ Shankarrao S/O. Nama Dhoke ... vs Pandurang S/O. Tuka Dhoke And ... on 10 April, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.4483 of 2015
Nabha @ Shankarrao s/o Nama Dhoke,
Aged about 75 years,
Occupation - Agriculturist,
R/o Juni Basti, Badnera,
Tq. and District Amravati (Dead)
By LR Rekha d/o Nabha alias Shankarrao
Dhoke,
Aged about 35 years,
Occupation - Advocate,
R/o Juni Basti, Badnera,
Tq. and District Amravati. ... Petitioner/
Ori. Plaintiff
Versus
1. Pandurang s/o Tuka Dhoke,
Aged about 70 years,
Occupation - Nil,
R/o Juni Basti, Badnera,
Tq. and District Amravati.
2. Sou. Venubai w/o Bhimrao Raut,
Aged about 57 years,
Occupation - Household,
R/o Rahatgaon,
Tq. and District Amravati.
3. Sau. Ushatai w/o Bhimrao Utane,
Aged about 67 years,
Occupation - Household,
R/o Shankarnagar,
Tq. and District Amravati. ... Respondents
Ori. Defendants
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Shri J.J. Chandurkar, Advocate for Petitioner.
Shri M.P. Kariya, Advocate for Respondent No.2.
None for Respondent Nos.1 and 3, though served.
Coram : R.K. Deshpande, J.
th
Date : 10 April, 2017
Oral Judgment :
1. Rule, made returnable forthwith. Heard finally by
consent of the learned counsels appearing for the parties.
2. In para 5 of the plaint in Special Civil Suit No.68 of
2011, the averments are made as under :
"5. That, during pendency of the suit decease Tuka and
the defendant No.2 executed separate sale deeds
dt. 01-07-10 of the part portion of the suit field
admeasuring 0.28 H + 0.28 H in favour of the defendant
No.3 without their being any partition of the suit
field/communication of partition of the suit field and
remaining 0.29 H land towards Southern side left for the
plaintiff."
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In the prayer clause, a relief of declaration is claimed that
the plaintiff is in possession of the suit field and hence a
permanent injunction is sought to restrain the defendants from
obstructing the possession of the plaintiff. Another relief is
claimed to declare that the sale-deed dated 1-7-2010 executed by
the deceased Tuka and the defendant No.2 in favour of the
defendant No.3 as null and void, not being binding upon the
plaintiff, and to pass a decree for cancellation of the sale-deed.
The basis for claim is that the property was already partitioned
and, therefore, there was no right to dispose of the share of the
plaintiff in favour of the defendant No.3 by executing the
sale-deed.
The plaintiff seeks deletion of the following portion in
para 5 of the plaint in Special Civil Suit No.68 of 2011 :
"5. ... without there being any partition of the suit
field/communication of partition of the suit field ..."
The fact that the plaintiff is challenging the sale-deed
wp4483.15.odt
shows that his case is that in spite of there being a partition, the
property has been sold. The Trial Court ought to have seen that
the amendment is necessary for adjudicating the real controversy
involved in the matter. Similarly, the alternate prayer for
possession should also have been allowed. The order impugned
cannot, therefore, be sustained.
3. In the result, the petition is allowed. The order impugned
dated 2-3-2015 passed by the Trial Court below Exhibit 33 in
Special Civil Suit No.68 of 2011 to the extent it rejects the
application for amendment, is hereby quashed and set aside. The
application for amendment is completely allowed. Necessary
amendment be carried out within a period of two weeks from the
date of first appearance of the parties before the Trial Court.
4. Rule is made absolute in above terms. No order as to
costs.
Judge.
Lanjewar
