Bombay High Court
Ashok Tatyaba Ohol And Ors vs Baliram Govind Gaikwad And Ors on 6 June, 2017
Bench: R.V. Ghuge
WP/8254/2010
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8254 OF 2010
1. Ashok Tatyaba Ohol
Age 55 years,
Occ. Agriculture & Teacher
2. David Tatyaba Ohol
Age 53 years,
Occ. Agriculture,
3. Shamrao Tatyaba Ohol
Age 50 years,
Occ. Agriculture
All r/o Umbargaon,
Taluka Shrirampur,
District Ahmednagar. ..Petitioners
Versus
1. Baliram Govind Gaikwad,
Age 30 years, occ. Agri.,
2. Vilas Nana Ohol,
Deceased Through L.Rs.
A. Lata Vilas Ohol,
Age major, Occ. Household
B. Vishal Vilas Ohol,
Age major, Occ. Nil
C. Swapnil Vilas Ohol,
Age major, Occ. Nil
2A to 2 C : R/o Ohol Niwas,
Panchashil Nagar, Yerwada,
Pune.
3. Anil Nana Ohol,
Age 50 years,
Occ. Builder & Agri.,
::: Uploaded on - 07/06/2017 ::: Downloaded on - 08/06/2017 00:59:49 :::
WP/8254/2010
2
4. Balasaheb Nana Ohol.
(Abated, as per order 22.3.2017)
5. Vijay Nana Ohol,
Age 46 years, Occ. Service
6. Sanjay Nana Ohol,
Age 43 years, Occ. Labour
7. Mayabai Nana Ohol,
Age 70 years, Occ. Agri. and
Household
All R/o Umbargaon,
Tq. Shrirampur,
District Ahmednagar. ..Respondents
...
Advocate for Petitioners : Shri Karpe Rahul R.
Advocate for Respondent 1 : Shri Adhav D.R.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 06, 2017
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
4. The petitioners are aggrieved by the rejection of their
application Exhibit 82, filed in RCS No.175 of 2005, by order
WP/8254/2010
dated 3.8.2010.
5. I have considered the strenuous submissions of the
learned Advocates for the litigating sides.
6. There is no dispute that respondent No.1 / original
plaintiff claims to be in possession of Gut No.1 admeasuring 1
Hectare and 44 Ares. Details of the suit property are
mentioned in paragraph No.1 in the plaint. It is the grievance
of the original plaintiff before the trial Court that the
petitioners who are defendant Nos.1 to 3, are disturbing his
peaceful possession and hence, he has sought permanent
injunction. The basis of the claim of the original plaintiff is a
sale deed dated 23.9.2004.
7. The petitioners have filed their written statement dated
10.11.2005, wherein Gut No.5 is mentioned below paragraph
No.5 in the fifth line on the internal page No.2 and further in
the Written Statement. After realizing the purported error of
having mentioned Gut No.5 in the Written Statement instead
of Gut No.1, an application Exhibit 82 was filed by the
petitioners seeking an amendment to the Written Statement.
Along with the prayer for correcting the Written Statement for
mentioning Gut No.1, instead of Gut No.5, the petitioners have
WP/8254/2010
also moved a request for raising the ground of adverse
possession. As such, the prayer in Exhibit 82 was to
introduce the claim of adverse possession with regard to Gut
No.1.
8. The trial Court has rejected the said application on the
ground that there is no need to correct the purported
typographical error with regard to the Gut Number and that a
new cause of action is sought to be introduced under the plea
of adverse possession.
9. Having considered the submissions of the learned
Advocates, I do not find that the trial Court has committed any
error in declining leave to the petitioners to introduce the
theory of adverse possession vide application Exhibit 82. The
Written Statement having been filed consciously, does not
contain any pleading which would have the trappings of
adverse possession. This petition, therefore, is not being
entertained to the extent of the request of the petitioners, to
introduce the theory of adverse possession.
10. In so far as the typographical error in the written
statement is concerned, there is no dispute that the suit filed
by the original plaintiff is with regard to Gut No.1 and it it his
WP/8254/2010
claim that the original defendants are disturbing his peaceful
possession in Gut No.1. Apparently, when the suit is restricted
to seeking perpetual injunction with regard to Gut No.1, it
becomes obvious that the petitioners have erroneously typed
Gut No.5 in place of Gut No.1 in the Written Statement. It is
nobody's case that Gut No.5 is also at issue in RCS No.175 of
2005.
11. Considering the above, I do not find that the trial Court
has rightly rejected leave to the defendant Nos.1 to 3 to
correct Gut No.5 and mention Gut No.1.
12. In the light of the above, this petition is partly allowed.
Application Exhibit 82 is allowed only to the extent of
permitting the petitioners / original defendant Nos.1 to 3, to
mention Gut No.1 in place of Gut No.5 in the Written
Statement. The impugned order dated 3.8.2010 stands
modified to this extent.
13. Rule is made partly absolute accordingly.
( RAVINDRA V. GHUGE, J. )
...
akl/d
