Sarlabai Dawal Vadhile And Others vs Rajesh Nemichand Kothari And ...
2017 Latest Caselaw 6731 Bom

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            IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                        BENCH AT AURANGABAD
                     WRIT PETITION NO.9533 OF 2015

1. Sarlabai Dawal Vadhile,
    Age-50 years, Occu-Agriculture,
    Sriram Nagar, Amalner, Teku Road,
    In front of Market Yard, Amalner,
    Taluka - Amalner, Dist. Jalgaon,

2. Rohan Dawal Vadhile,
    Age-29 years, Occu-Agriculture,
    Sriram Nagar, Amalner, Teku Road,
    In front of Market Yard, Amalner,
    Taluka - Amalner, Dist. Jalgaon,

3. Prasad Dawal Vadhile,
    Age-23 years, Occu-Agriculture,
    Sriram Nagar, Amalner, Teku Road,
    In front of Market Yard, Amalner,
    Taluka - Amalner, Dist. Jalgaon             -- PETITIONERS 

VERSUS

1. Rajesh Nemichand Kothari,
    Age-48 years, Occu-Business and Agriculture,
    Residing at 5, Priyadarshini Apartment,
    M.J.College Road, Amalner, H.Mukkam,
    Taluka and Dist. Jalgaon,

2. Sharmila Kishore Kothari,
    Age-45 years, Occu-Business and Agriculture,
    Residing at 9/23, Anand Society,
    Shankar Sheth Road, Pune,

3. Mudhita Kishore Kothari,
    Age-24 years, Occu-Service,
    Residing at 9/23, Anand Society,
    Shankar Sheth Road, Pune,

4. Nikita Kishore Kothari,
    Age-22 years, Occu-Service,
    Residing at 9/23, Anand Society,

khs/SEPT. 2017/9533-d




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    Shankar Sheth Road, Pune,

5. Vinod Nemichand Kothari,
    Age-55 years, Occu-Business and Agriculture,
    Residing at New Plot, Shreyas Bhavan,
    Amalner, Tal.Amalner, Dist.Jalgaon,

6. Sunanda Vinod Kothari,
    Age-50 years, Occu-Household,
    Residing at New Plot, Shreyas Bhavan,
    Amalner, Tal.Amalner, Dist.Jalgaon,

7. Prabhavati Narendrakumar Surana,
    Age-65 years, Occu-Household,
    Residing at Surana Palace, Freeganj,
    In front of Daseharrah Maidan,
    Ujjain, Madhya Pradesh,

8. Pushpavati Virchandji Samdiya,
    Age-63 years, Occu-Household,
    Residing - Main Road, Near Jain Mandir,
    Yeovla, Mukkam Post - Yeovla,
    District - Nashik                                       -- RESPONDENTS 

Mr.Mobin H.Shaikh, Advocate for the petitioners. Mr.G.S.Rane, Advocate for respondent Nos. 1 to 4. Mr.B.R.Warma, Advocate for respondent Nos. 5 to 8.

( CORAM : Ravindra V.Ghuge, J.) DATE : 04/09/2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioners / original defendant Nos. 5, 6 and 7 are

aggrieved by the order dated 19/08/2015 by which the Trial Court

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has allowed Application Exh.72 and has permitted the original

plaintiffs to amend their plaint.

3. I have considered the strenuous submissions of the learned

advocates for the respective sides.

4. The plaintiffs, while instituting the suit for partition and

separate possession in relation to the ancestral property in 2012,

have pleaded in paragraph No.1 that defendant Nos. 5, 6 and 7 have

entered into some sale transactions with defendant Nos. 1 to 4. For

lack of knowledge, the details about such sale transactions were not

mentioned in the plaint. Further averments were made in paragraph

Nos. 7 and 8 pertaining to the conduct of defendant Nos. 1 to 4 and

the purported illegal sale transactions with defendant Nos. 5 to 7.

5. Issues were cast by the Trial Court on 14/09/2014. Issue No.3

is with regard to whether the sale transactions between the

defendants were illegal or not. Issue No. 7 is with regard to whether

the suit was filed within limitation.

6. By application Exh.72, the plaintiffs have identified the specific

sale deeds pursuant to the details mentioned by the defendants in

khs/SEPT. 2017/9533-d

the written statement filed in June 2013. Having identified the sale

deeds, a specific relief is sought that the sale deeds be declared illegal

and consequentially be declared as not binding upon the plaintiffs.

7. Serious grievance is voiced by the petitioners that after

mutation entries were effected by the revenue authorities, the

plaintiffs had preferred RTS Revision No.10/2012 u/s 257 of the

M.L.R. Code before the S.D.O. challenging the mutation entries on

the basis of the sale deeds. The said RTS revision was rejected. The

appeal preferred by the plaintiffs u/s 247 of the M.L.R.Code before

the Additional Collector has also been rejected. This fact has been

suppressed by the plaintiffs in Exhibit 72 and while seeking

amendment under the proviso to Rule 17 under Order 6.

Suppression of these aspects would disentitle the plaintiffs for any

relief on the ground of due diligence.

8. It appears from Exhibit 72 that the plaintiffs have stated that

the amendment is sought on the basis of the knowledge derived by

them from the written statement filed by the defendants. It is

obvious that the mutation entry proceedings have not been stated in

Exhibit 72. Notwithstanding the fact that the mutation entries would

not crystalize the rights or title of any litigating side with reference to

khs/SEPT. 2017/9533-d

the suit property, the plaintiffs should have fairly stated that the

mutation entries were challenged on the basis of the said sale deeds.

As the mutation entries were challenged in 2012, much prior to the

filing of the written statement, it would thus reveal that the plaintiffs

were aware of the sale deeds even before filing of the written

statement. Keeping in view the law laid down by the Hon'ble Apex

Court in the matter of Bhaskar Laxman Jadhav and others Vs.

Karamveer Kakasaheb Wagh Education Society and others [AIR 2013

SC 523], the plaintiffs deserve to be penalized by imposition of costs.

9. It also cannot be ignored that the Trial Court has already

framed the issue with regard to the legality of the sale transactions in

between the defendants. The onus and burden of proving the

illegality of the sale transactions would lie on the shoulders of the

plaintiffs. The suit being in relation to ancestral properties and as

the issue of legality has also been framed, it would be harmless to

permit the plaintiffs to put forth a specific prayer so that the

pleadings in the suit would be completed.

10. Learned Advocate for the petitioners is justified in contending

that the amendment will have to be permitted from the date of

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Exhibit 72 and as such the limitation aspect will have to be kept

open, lest a time barred prayer might be entertained by the Trial

Court by way of an amendment which would be otherwise

impermissible.

11. Considering the above, this petition is partly allowed and the

impugned order to the extent of clause 7(a) would be modified by

directing the plaintiffs to pay additional costs of Rs.5,000/- to

defendant Nos. 5 to 7 who are petitioners herein, who shall withdraw

the said amount in equal share. The costs shall be deposited within

3 (three) weeks from today in the Trial Court, failing which, the

plaintiffs would not be permitted to amend the plaint.

12. The amendment allowed by the impugned order would be

effective from the date of Exh.72 which is 21/02/2015. The Trial

Court would consider the effect of the bar of limitation to the

amended portion and the additional prayers permitted vide the

amendment, under issue No.7 while deciding this petition.

13. Rule is made partly absolute in the above terms.

( Ravindra V.Ghuge, J.)

khs/SEPT. 2017/9533-d