Bombay High Court
Sakharam Mahadev Patil And Ors vs Balasaheb Sadu @ Sadashiv Patil ... on 21 August, 2021
Bench: N. R. Borkar
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1-cwp-3421-13.doc
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signed by
RAJSHREE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RAJSHREE
KISHOR
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KISHOR
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Date:
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3421 OF 2013
2021.08.23
13:51:36
+0530
Sakharam M. Patil and ors. ...Petitioners
V/s.
Balasaheb Sadu @ Sadashiv
Patil and ors. ...Respondents.
Mr. Yuvraj Narvankar a/w. Mr. Adwait Agashe for the Petitioners.
Mr. Surel S. Shah for the Respondents.
CORAM : N.R. BORKAR, J.
DATE : 21.08.2021.
P.C. :
1] Rule. Rule is made returnable forthwith with the consent of
parties.
2] This petition takes an exception to the order dated
28.09.2012 passed by the learned 4th Joint Civil Judge, Senior
Division, Kolhapur below Exhibit-98 in Regular Civil Suit No. 768 of
2009.
3] The petitioners herein have fled a Suit simplicitor for
injunction against the respondents in relation to the agricultural
land bearing Gat Nos. 1127, 1261 and 1263 of Mauje-Koge, Taluka
- Karvir, District - Kolhapur.
4] The Petitioners and Respondents are close relatives. Their
ancestors Sadashiv Patil, Dadu Patil and Mahadu Patil were co-
tenants of the suit land.
Dinesh S. Sherla 1/4
1-cwp-3421-13.doc
5] According to the Petitioners, Sadashiv was cultivating one
half share and Dadu and Mahadu were cultivating one fourth
share each. The Petitioners are the legal heirs of Dadu and
Mahadu and the respondents are the legal heirs of Sadashiv.
According to the Petitioners they are cultivating the share of Dadu
and Mahadu after their death. The Petitioners allege that
respondents are not allowing them to cultivate their share in the
suit lands and thus sought injunction against them.
6] The respondents in their written statements have stated
that owners of the land are not made party to the suit and thus
the suit is bad for non-joinder of necessary parties. It is further
stated that the Petitioners are claiming themselves to be the
tenants, however, they never obtained such declaration from the
Competent Authority under Bombay Tenancy and Agricultural
Lands Act ( for short "Tenancy Act"), nor such declaration is
sought in the present suit. The respondents have stated that the
Petitioners were never tenants of the suit lands, nor they were
ever in possession of any portion of the suit lands.
7] The Petitioners after fling of written statement fled an
application for amendment of Plaint at Exhibit - 98. By the said
application, the Petitioners sought permission to implead the
owners of the suit land as party/defendants to the suit. They
further sought permission to amend the pleadings. They have
stated that they be declared as tenants. The trial court rejected
the application at Exhibit-98 by the impugned order.
Dinesh S. Sherla 2/4
1-cwp-3421-13.doc
8] According to the trial Court, the declaration which the
Petitioners have sought by the proposed amendment can be
granted by Mamlatdar under Section 70(b) of the Tenancy Act
and the jurisdiction of the Civil Court in that respect is barred.
9] I have heard learned counsel for the Petitioners and learned
counsel for Respondents. The learned counsel for Petitioners
submits that the trial Court ought not to have judged the merits of
the amendment sought to be incorporated at the time of deciding
the amendment application. It is submitted that to avoid
multiplicity of the judicial proceedings, the trial Court ought to
have allowed the amendment in question. In support of the
submission, learned counsel for the Petitioners has relied upon
the Judgment reported in (2002) 7 SCC 559 in the case of
Sampath Kumar vs. Ayyakannu and Another.
10] On the other hand, learned counsel for Respondents submits
that the trial Court has rightly rejected the amendment
application. It is submitted that the Civil Court has no jurisdiction
to grant declaration which the Petitioners have sought for. It is
submitted that the proposed amendment changes the nature of
the suit. Accordingly, it is submitted that no interference is called
for in the impugned order. In support of the submission, learned
counsel for Respondents has relied upon the Judgment reported in
(2009) 10 SCC 84 in the case of Revajeetu Builders and
Developers vs. Narayanaswamy and Sons and Others.
Dinesh S. Sherla 3/4
1-cwp-3421-13.doc
11] According to the respondents, their father Sadashiv was the
sole tenant of the suit land. According to them the Petitioners, on
the basis of bogus documents got their names recorded in the
revenue record of the suit land as tenants.
12] It is, thus, apparent from the pleadings of the parties that the
dispute is between the co-tenants and not the land owners and
tenants. In such situation, the trial Court ought not to have
examined merits of the amendment at the time of deciding
amendment application. It is also not understood as to why the
amendment seeking permission to implead the owners of the suit
land as party defendants to the suit, was rejected.
13] Considering facts and circumstances, the trial Court was not
justifed in rejecting the amendment application. In the result,
following order is passed :
a] Writ Petition is allowed.
b] The order impugned dated 28.9.2012 passed by the
Trial Court below Exhibit-98 in Regular Civil Suit No.768 of
2009 is set aside.
c] Application at Exhibit-98 is allowed.
[N.R.BORKAR, J.]
Dinesh S. Sherla 4/4
