Ganpat Baburao Boraste vs Vinayak Pandurang Waghmare And ...
2022 Latest Caselaw 9742 Bom

             Tikam                             1/6
                                                                43- WP 6947 of 2022

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION
VAISHALI
ANIL                          WRIT PETITION No. 6947 OF 2022
TIKAM

             Ganpat Baburao Boraste                             ...Petitioner
Digitally
signed by         Vs.
VAISHALI
ANIL TIKAM   Vinayak Pandurang Waghmare and Ors.                ...Respondents
                                             ****
Date:
2022.09.05
17:55:05
+0530


             Mr. Girish R. Agarwal for Petitioner
             Mr. Amey Deshpande for Respondent

                                        Coram : Sandeep K. Shinde, J.

Reserved on : 24th August, 2022 Pronounced on :5th September, 2022

[J U D G M E N T]:

1. Heard Mr. Girish Agarwal, learned counsel for the

Petitioner and Mr. Amey Deshpande for the Respondents.

2. Respondent Nos. 1, 2 and 3 (hereinafter called Plaintiffs)

instituted a Special Civil Suit No. 162/2012, in the Court of Civil

Judge, Senior Division, Nasik for the reliefs; (i) to declare that their

title to the suit property has matured by adverse possession; and, (ii)

that, sale deeds dated 9th January, 2012 and 12th April, 2012

executed by the defendants, in respect of suit property, were not

binding on them. Nearly seven years after instituting the suit, on 18th

January, 20218, Plaintiffs moved an application under Order VIL

Rule 17 of the Civil Procedure Code, for amendment of the plaint.

 Tikam                                 2/6
                                                        43- WP 6947 of 2022

Learned Trial Court vide order dated 13th February, 2020, granted the

amendment. That order is challenged in this petition.

3. Facts relevant for the decision of this petition are like this;

Gat No. 1075 is agricultural land. Plaintiffs' father, Pandurang

Trambak Waghmare, instituted Regular Civil Suit No. 74/1994 (First

Suit) in respect of the said Agricultural Land. Pandurang (Plaintiffs'

father) pleaded, in the first suit that, Ramchandra Kashinath Joshi was

owner of land Gat No. 1075. He died in the year 1946. Pandurang's

uncle, Govind was cultivating the said land as protected tenant.

Govind died in 1962, survived by Pandurang Trambak - (father of the

Plaintiffs) Shankar and Baburao. Pandurang, pleaded that Baburao,

died issuless in 1960, survived by wife, Parvatibai Baburao.

Parvatibai, executed a Will deed dated 12th August, 1986 and

bequeathed 1/3rd area of the suit property to Balkrishna Shankar

Gurav (Waghmare), Defendant No.1, in the first suit. Pandurang, had

claimed and asserted his exclusive possession over the suit land and

denied Parvatabail 's right to bequeathed part of the suit land by a

Will. On these assertions, Pandurang, sought a decree to declare his

exclusive ownership over the suit property. The another relief in

the first suit was, that a Will executed by Parvatibai on 12th August,

1986 bequeathing 1/3rd area of the suit property to Balkrishna Gurav Tikam 3/6 43- WP 6947 of 2022

(Defendant No.1 therein) and two others, was illegal. The first suit

was dismissed on 9th April, 2010 and the decree was confirmed in

second appeal by this Court on 31st January, 2018.

4. Be that as it may, after dismissing the first suit and

pending first appeal, sons of Pandurang, Respondent Nos. 1,2 and 3

herein, instituted the Special Civil Suit No. 162/2012, (hereinafter

called 'second suit' for short).

5. In the second suit, which is in question, Balasaheb

Shankar Gurav is Defendant No.1, to whom, Parvatabai bequeathed

part of the suit land. Be it noted, Balasaheb was also defendant in the

first suit.

6. Pending suit in question, Plaintiffs sought amendment of

the plaint. Briefly stated the amendment sought was to the effect that,

a Will executed by Parvatibai on 12th August, 1986, bequeathing

1/3rd share in the suit land to Defendant Nos.1(Balasaheb Gurav) and

his sisters Sushila Govind Jadhav and Suman Devidas Pande was

illegal. For the reason that Parvatibai being tenant, she had no right to

bequeath tenancy and thus the Will and all further alienations by

Defendant No.1 (legatee), part of the suit lands to defendant No.10,

were unlawful and not binding on Plaintiffs. Trial Court vide order

dated 13th February, 2020 granted the amendment subject to cost Tikam 4/6 43- WP 6947 of 2022

Rs.1,000/-. Feeling aggrieved by that order, Defendant No.10 has

preferred this petition.

7. Having heard the learned counsel for the parties and upon

perusing the judgments in the first suit, pleadings in the second suit,

application seeking amendment to the plaint and the reply thereto, in

my view, the Trial Court could not have allowed to amend the plaint

for two reasons; First, that the amendment introducing the cause of

action, that, Parvatibai could not have bequeathed tenancy over part

of suit land (i.e. 1/3rd) under Will deed dated 12th August, 1986, was

barred by limitation. Undoubtedly, this fact was within the

knowledge of the Plaintiffs, when the first suit was instituted by their

father Pandurang, in 1984 and further in the first suit, a specific issue

was framed that; to the effect; "whether Plaintiffs proved that the

Will deed dated 12th August, 1986 executed by deceased, Parvatibai

was false and illegal". This issue was answered in negative and the

findings on this issue were confirmed in first appeal as well as the

second appeal. Therefore, cause of action and claim introduced and

set-up by way of proposed amendment was clearly barred by

limitation. Even otherwise, Plaintiffs were precluded from raising the

same issued which was already decided in the first suit. The Hon'ble

Apex Court in the case of Revajeetu Builders & Developers Vs. Tikam 5/6 43- WP 6947 of 2022

Narayanswamy & Sons [ (2009) 10 SCC 84] has held that if an

amendment introducing a cause of action is such that the cause of

action is otherwise not barred by limitation or if an independent suit

would not be barred by limitation , such an amendment could be

allowed. Yet in the decision of Radhika Devi vs. bajrangi Singh

and Ors. [(1996) 7 SCC 486], the Hon'ble Supreme Court has held

that the claim set up by way of proposed amendment ought not to be

permitted if it is barred by limitation. The ratio in the above decisions

are squarely applicable, to the facts of the case at hand. Secondly, it is

settled law that all amendment ought to be allowed being necessary

for the purpose of determining the real question in controversy

between the parties. In the case at hand, the suit claim is for

declaration of ownership by adverse possession. If that be so, the

amendment sought to the effect that, Parvatibai had no right to

bequeath her tenancy to the Defendants would not in any manner

assist or necessary for determining controversy between the parties.

For these reasons amendment sought by the Plaintiffs could not have

been allowed.

8. Be that as it may, Mr. Deshpande, learned counsel for the

Respondents -Plaintiffs, would contend that even assuming that cause

of action, set up by proposed amendment was barred by limitation, Tikam 6/6 43- WP 6947 of 2022

yet Parvatibai then a tenant in the suit land had no right to assign

interest in the land as held by the Apex Court in the case of

Vinodchandra Sakarlal Kapadia Vs State of Gujarat and Ors.

[(2020) 18 SCC 144]. Mr. Deshpande has rightly argued that in,

Vinodchandra Sakarlal Kapadia [Supra.], the Hon'ble Supreme Court

has held that a tenancy governed by a statute which prohibits

assignment, cannot be willed away to a total stranger. However,

Plaintiffs do not dispute that Parvatibai had 1/3rd tenancy in suit land.

Rather Plaintiffs in the amended application Exhibit 79, in paragraph

No.1 admit this fact. Therefore, law laid down in the Vinodchandra,

does not further the Plaintiffs' case. For all these reasons, the

impugned order dated 13/2/2020 below Exhibit '79' in SCS No.

162/2012 passed by the 12th Jt. Civil Judge, Senior Division, Nashik

is quashed and set aside. Petition is allowed in the aforesaid terms

and disposed of.

(Sandeep K. Shinde, J.)