Bombay High Court
Prakash Bhikchand Agrawal vs Manju Ram Airen And Ors on 17 August, 2021
Bench: M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8672 OF 2012
Prakash S/o Bhikchand Agrawal
Age 60 years, occ. Business
R/o Old Bombay Agra Road,
Plot No. 87, Dhule
Tq. & Dist. Dhule Petitioner
Versus
1. Smt. Manju w/o Shri Ram Airen
Age 58 years, occ. Household
R/o 6/2 New Palasia,
Opp. Community Hall
Indore
Tq. & Dist. Indore (Madhya Pradesh)
2. Asha W/o Ashok Mansingkha
Age 56 years, Occ. Household
R/o 17/3 South Tukoganj Street No. 1.
Indore, Tq. & Dist. Indore (Madhya Pradesh)
3. Smt. Rama W/o Vinod Bidsariya
Age 53 years, Occ. Household
R/o 185, Saket Nagar, Indore
Tq. & Dist. Indore (Madhya Pradesh)
4. Manohar S/o Bhikchand Agrawal
Age 62 years, Occ. Business
R/o Old Bombay Agra Road,
Plot No. 87, Dhule
Tq. & Dist. Dhule.
5. Smt. Gyasridevi W/o Bhikchand Agrawal}
Age 85 years, Occ. Business } Deleted vide Court
R/o Old Bombay Agra Road, } order dt. 20.2.2018
Plot No. 87 }
Dhule, Tq. & Dist. Dhule. }
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6. Hotel Siddhi Venkatesh Pvt. Ltd.
A Company Registered under the provisions of
Companies Act, 1956, Registered offce at
Agra Road, Dhule
Through its Chairman
Manohar Bhikchand Agrawal
Age 62 years, occ. Business
R/o Old Agra Road, Dhule.
7. Jeevanram Bieram Agrawal
Dealer of Indian Oil Corporation Ltd.
Through Mr. Manohar Bhikchand Agrawal
Age 61 years, occ. Business
R/o Old Bombay Agra Road,
Plot No. 87, Dhule
Tq. & Dist. Dhule.
8. Manohar Automobiles
Registered partnership frm
Registered offce at Opposite Shivaji Statute
Agra Road, Dist. Dhule
Through partner
Prakash S/o Bhikchand Agrawal
Age 60 years, occ. Business
R/o Agra Road, Dhule,
Tq. & Dist. Dhule.
9. Smt. Gunprabha Mahendra Lunkad
Age 60 years, occ. Business
R/o Padmaprabha, 433/2
Ganpatinagar Jalgaon
Tq. & Dist. Jalgaon.
10. Kalpesh s/o Kishor Bafna
age 30 years, occ. Business
R/o 1499/3, Galli No. 3,
Dhule, Tq. & Dist. Dhule.
11. Piyush S/o Kishor Bafana
age 30 years, occ. Business
R/o 1489/3, Galli No. 3
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Dhule
Tq. & Dist. Dhule. Respondents
Mr. Chaitanya Deshpande, Advocate for the petitioner.
Mr. P.P. Dawalkar, Advocate for respondent No. 1.
CORAM : M.G. SEWLIKAR, J.
DATE : 17th August, 2021.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. By consent of learned counsel for both the parties, heard
fnally at the stage of admission.
3. Facts leading to this petition can be stated in nutshell
thus :-
Petitioner is the original defendant No. 2 in Special Civil
Suit No. 113/2006 fled by respondents against petitioner and others.
This is a suit for partition and separate possession.
4. At Exhibit No. 297, petitioner-defendant No. 2 fled an
application for addition of properties i.e. Block No. 302, admeasuring
2 Acres 30 gunthas situated at Dharangaon, Dist. Jalgaon. He
sought directions from the Court to direct the plaintiff to amend the
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plaint and add this property.
5. Respondent No. 1 - original plaintiff objected to this
amendment by fling say.
6. Learned trial Court rejected this application holding that
this property original survey No. of which is 325 is already on record.
Therefore, there is no need to bring this property on record. This
order is impugned in this writ petition.
7. Heard Shri Deshpande, learned counsel for the petitioner
and Shri Dawalkar, learned counsel for respondent No. 1. Learned
counsel for respondents No. 2 to 4 and 6 to 11 is absent.
8. Learned counsel Shri Deshpande submits that plaintiff
has admitted in cross-examination that she did not include Gat No.
302 sitauted at Dharangaon, Dist. Jalgaon, in the plaint. Shri
Deshpande further submits that according to the petitioner, survey
No. 325B and Gat No. 300 are not the same properties. They are
totally different properties and, without there being any evidence
before the Trial Court, relying on the statement made by learned
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counsel for the respondent during argument, the learned Trial Court
has held that both these properties are the same.
9. Learned counsel Shri Dawalkar states that from the
order it does not appear that there was any evidence before the
learned Trial Court to make these observations.
10. Learned Trial Court, while rejecting the application, has
made following observations :-
From perusal of Schedule I it appears that CTS
No. 5168-B Manohar Oil Mill, Dharangaon District
Jalgaon existing area 1,82,000 Sq.ft is mentioned
in the schedule. It is nothing but Gat No. 302.
when this is the fact, there is no necessity at all to
add the same properties again and again. This
would be a fruitless business adding to confusion
only. Gat No. 302 is changed CTS No. 5168-B.
Change of Gat numbers in survey numbers cannot
be a ground to include the same property for twice
when once it is added in the plaint. In such
circumstances, there exists no merit in the prayer
of defendant No. 2.
11. There is nothing on record to indicate as to on what basis
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the learned Trial Court has made these observations. Petitioner has
produced said Schedule at Exhibit A along with the plaint. This
Schedule does not indicate that CTS No. 5168-B is re-numbered as
Gat No. 302. Therefore, these observations of learned Trial Court are
not based on the record produced before it. Without there being any
evidence, the learned Trial Court has made these observations. It is
not the case of respondent No. 1 that this is not the ancestral
property. In the cross-examination, the plaintiff has admitted that he
does not know why Gat No. 302 at Dharangaon was not added in the
plaint. He has further stated that he wants share in the said
property.
12. Having regard to this, I deem it expedient to allow the
application. Plaintiff is directed to amend the plaint. After
amendment, the learned Trial Court shall make every endeavour to
dispose of the suit within a period of six months. Petition is disposed
of. Rule made absolute in above terms.
( M. G. SEWLIKAR )
Judge
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