Bombay High Court
Ramdas Harishchandra Raje And Ors vs Baban Maruti Kumbhar on 9 March, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2792 OF 2023
Ramdas Harishchandra Raje & Ors. .... Petitioners
versus
Baban Maruti Kumbhar .... Respondent
.......
• Mr. Nikhil Wadikar a/w Faiza Shaikhk a/w Malhar Pawar,
Advocate for Petitioner.
CORAM : SARANG V. KOTWAL, J.
DATE : 09th MARCH, 2023
P.C. :
1. Heard Mr. Nikhil Wadikar, learned counsel for the
Petitioners.
2. The Petitioners are the Original Defendants and the
Respondent is the Original Plaintiff in Regular Civil Suit
No.47/2005 in the Court of Civil Judge, Senior Division, Satara.
Subsequently, it was transferred to the Court of Civil Judge,
Digitally
Junior Division, Satara. For the sake of convenience, the parties
signed by
MANUSHREE
MANUSHREE V
V NESARIKAR
NESARIKAR Date:
2023.03.13
14:39:03
+0530
are referred to by their original status in the suit.
Nesarikar
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3. The Plaintiff had filed a suit for redemption of
mortgage and possession of the property from the Defendants. It
was his case that the Plaintiff was the owner of the land in
village Atit, Taluka & District Satara bearing Gat No.863. Out of
the property, the portion described in the first paragraph of the
plaint was the suit property. On 05/01/1983, vide a registered
mortgage deed, the Plaintiff had mortgaged his land for an
amount of Rs.4,000/-. According to the agreement, the Plaintiff
could repay the amount of Rs.4,000/- and could regain the
mortgaged land. It is alleged that, in November 1987, the
Plaintiff repaid Rs.4,000/-. The predecessor Sadashiv of
Defendants had returned the mortgage deed to the Plaintiff. On
16/10/1991 Sadashiv passed away. After that, the deed for
redemption had remained to be executed. According to the
Plaintiff, the possession of the land was already given to the
Plaintiff in November 1987, when he had repaid Rs.4,000/-. It is
his case that in the year 2003, the land admeasuring 3 R from
the suit property was acquired for the National Highway-4. The
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Government had declared the award of Rs.19,274/-. It is the
case of the Plaintiff that the successors in the title of the
deceased Sadashiv i.e. the present Petitioners (Defendant Nos.1
and 2) fraudulently entered their names in the revenue record.
They also made some false complaint and therefore in December
2003 acquired possession on the suit premises with the help of
the police. The plaintiff issued a notice through his advocate on
16/11/2004 and demanded possession of the land. However, it
was not returned and therefore this suit was filed.
4. The Petitioners herein i.e. the Original Defendants filed
their written statement. In that written statement it was denied
that possession of the land was given to the Plaintiff in
November 1987 on payment of Rs.4,000/-. Most of the
averments in the plaint were denied. It was the specific case of
the Defendants that since 1983 the suit property was in
possession of the Defendants.
5. The suit was conducted and finally it was decreed in
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favour of the Plaintiff. As per the judgment dated 18/02/2020,
the decree was passed. It was decreed that the suit property i.e.
Gat No.863 admeasuring 1H 65R to the extent of half share on
eastern side on payment of Rs.4,000/- with interest on 6% per
annum from the date of decree till the date of payment of the
said amount in the Court within one month; the Plaintiff was
entitled to get the suit property. The Defendants were directed to
execute the re-conveyance deed in favour of the Plaintiff.
6. This order was challenged by the Defendants in the
Court of District Judge, Satara, vide Regular Civil Appeal
No.47/2020. During pendency of this Appeal, the Defendants
i.e. the present Petitioners had preferred Ex.123 for amendment
to their written statement. The said application was made vide
Ex.22 in the Appeal. It was rejected by the Appellate Court vide
order dated 06/10/2022.
7. Learned counsel for the Petitioners submitted that the
Defendants were in adverse possession from November 1987
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and therefore since the suit was not filed within 12 years, the
suit for possession was time barred.
8. According to learned counsel for Petitioners, the
learned Appellate Judge did not consider the necessity of the
amendment in proper perspective and he had wrongly rejected
the said application. The said order dated 06/10/2022 is under
challenge in this Writ Petition.
9. I have considered submissions made by learned counsel
for the Petitioners. The amendment which is sought by the
Petitioners is as follows:
"in alternative as plaintiff prayed that they repaid the
mortgage amount of Rs.4,000/- in November 1987 and
took the possession of the suit property and defendant
returned the original Mortgage-deed to plaintiff,
accordingly the possession of the defendant in suit
property from Nov. 1987 is adverse. Hence, as plaintiff
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has not filed suit within 12 yrs., suit for possession is
timebarred. "
10. Learned Appellate Court held that there was no reason
mentioned about the necessity of this pleadings at this stage.
The defence was available to the Defendants at the time of filing
their written statement, but they did not take up this defence.
Thereafter the decree was passed and this application for
amendment was made after six years. Thus it was filed with
malafide intention to protract the proceedings. It was further
observed that the amendment application was filed after more
than two years of filing of that Appeal. Even in the grounds of
the Appeal, no such objection was raised for amendment. It was
further observed that pleadings of the plaintiff in the suit were
clear and unambiguous about which the Defendant was having
knowledge since beginning. Therefore, the pleadings which were
inconsistent to his own pleadings cannot be permitted to add in
the written statement.
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11. I have perused the written statement. No such
contention was raised by the Petitioners (Defendants) in their
written statement about the adverse possession. Their case in
the written statement was completely different. Now a totally
new ground is sought to be raised by way of the amendment.
That in fact is contrary to the stand taken by the Defendants in
their written statement before the Trial Court. This stand is also
taken much belatedly though all the facts were within the
knowledge of the Defendant. The amendment itself does not
make a clear case of adverse possession. There is nothing
mentioned on which date the possession of the Defendants had
become adverse and hostile to the Plaintiff. There is no mention
as to how the Defendants took possession from the Plaintiff in
the year 1987. The Appellate Court has given sufficient reasons
for not permitting to carrying out that amendment. I do not see
any reason to interfere with the order. Hence the Petition is
dismissed.
(SARANG V. KOTWAL, J.)
