Dattarao Narayanrao More And ... vs Mathurabai Madhavrao Patil And ...
2021 Latest Caselaw 1287 Bom

                                     1               922-WP-999-2021.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                     922 WRIT PETITION NO. 999 OF 2021

          DATTARAO S/O NARAYANRAO MORE AND ANOTHER
                                 VERSUS
           SOW. MATHURABAI W/O MADHAVRAO PATIL AND
                               ANOTHER
                                   ......
              Advocate for Petitioners : Mr. Sachin G Joshi
                                    .....

                                   CORAM : V. K. JADHAV, J.

DATED : 19TH JANUARY, 2021

PER COURT :-

1. Heard.

2. The petitioners/original plaintiffs instituted a suit for

declaration of ownership and for permanent injunction. The

suit was decreed to the extent of declaration of ownership.

However, the decree of permanent injunction was refused.

Consequently, the petitioners/plaintiffs filed an appeal

bearing R.C.A. No. 43 of 2007. However, the learned District

Judge-1, Kandhar, District Nanded, by judgment and order

dated 20.09.2016, remanded the suit back with a direction

to appoint a court commissioner i.e. T.I.L.R. for carrying out

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2 922-WP-999-2021.odt

measurement of the suit property. It was revealed during the

said measurement that defendant no.2 has encroached upon

the portion of the suit land to certain extent. The petitioners

have therefore filed an application Exhibit 127 in R.C.S. No.

41 of 2005 (after remand) under Order VI Rule 17 of the

Code of Civil Procedure for amendment seeking recovery of

possession of the said encroached portion. However, the trial

court, by the impugned order, has rejected the said

application solely on the ground that the relief as sought by

the petitioners/plaintiffs for possession by way of present

amendment application is barred by limitation.

3. Learned counsel submits that defendant no.2 has

purchased the said property during pendency of the suit and

as such, he came to be impleaded in the suit as defendant

no.2. Learned counsel submits that there is no question of

considering the point of limitation as the proposed

amendment seeking recovery of possession is in view of the

subsequent developments occurred after the matter was

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3 922-WP-999-2021.odt

remanded to the trial court by the District Judge directing

appointment of court commissioner.

4. In view of the above, issue notice to the respondents,

returnable on 16.02.2021.

( V. K. JADHAV, J. )

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