Bombay High Court
Deepak S/O Pralhad Khedekar And Another vs Smt. Kamlabai Bhaskarrao Khedekar And ... on 1 March, 2024
2024:BHC-NAG:2826
1/5 wp.1818.19-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 1818/2019
1. Deepak S/o. Pralhad Khedekar,
Aged about 55 years, Occu.: Agriculturist.
2. Samadhan S/o. Pralhad Khedekar,
Aged about 58 years, Occu.: Agriculturist,
R/o. Antri Khedekar, Tq. Chikhali, ----PETITIONERS
Dist. Buldana. (Org.Def. Nos.1 & 2)
--VERSUS--
1. Smt. Kamlabai Bhaskarrao Khedekar, Resp. Nos. 1 to 5 are Org.
Aged 65 years, Occu. Household, Plaintiffs.
2. Sunil Bhaskarrao Khedekar,
Aged 48 years, Occu. Agriculturist.
3. Ajay Baskarrao Khedekar,
Aged 45 years, Occu. Agriculturist.
4. Sanjay Baskarrao Khedekar,
Aged 42 years, Occu. Agriculturist.
5. Sau. Shila Balasaheb Theng,
Aged 50 years, Occu. Household,
Nos. 1 to 5 R/o. At Antri Khedekar,
Tah. Chikhali, Dist. Buldana.
6. Smt. Bhagirathibai Baliram Khedekar, Resp. Nos. 6 to 12 are
Aged 78 years, Occu. Agriculturist. Org. Defendant Nos.3
(Respondent No.6 deleted as per Order dated to 9.
30.08.2019)
7. Waman Baliram Khedekar,
Aged 63 years, Occu. Agriculturist.
8. Sanjay Baliram Khedekar,
Aged 50 years, Occu. Agriculturist.
2/5 wp.1818.19-J.odt
9. Vishnu Baliram Khedekar,
Aged 50 years, Occu. Agriculturist.
Resp. Nos.6 to 9 R/o. Nagangaon,
Tq. Deulgaonraja, Dist. Buldana.
10. Sau. Tarabai Kaushikrao Dukre,
Aged 60 years, Occu. Agriculturist,
R/o. Sawargaon, Dukre, Tq. Chikhali,
Dist. Buldana.
11. Vashamati Pandurang Rindhe,
Aged 57 years, Occu. Agriculturist,
R/o. Tandulwadi, Tq. & Dist. Buldana.
12. Mandakini Namdeo Vayal,
Aged 45 years, Occu. Agriculturist,
R/o. Dusarbid, Tq. Sindkhedraja, ----RESPONDENTS
Dist. Buldana.
Mr. B. M. Dafle, Advocate for Petitioners.
Mr. N. B. Kalwaghe, Advocate for Respondent Nos.1 to 5.
CORAM : MRS.VRUSHALI V. JOSHI, J.
DATE : 01.03.2024
JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally with
consent of the learned Counsel for the parties.
2. Being aggrieved by the order dated 17.09.2018 passed below
Exhibit -108 by the Civil Judge, Junior Division, Chikhali, District Buldana
rejecting the application filed by the petitioners, who are the original
defendants in the Civil Suit, the petitioners have filed this petition.
3/5 wp.1818.19-J.odt
3. The petitioners are the original defendant Nos.1 and 2 in the
original Civil Suit bearing Regular Civil Suit No.03/2009 filed by the
respondent Nos.1 to 5 before the Civil Judge, Junior Division, Chikhali,
District Buldana. Respondent Nos.1 to 5 have filed the said suit for
declaration, perpetual injunction and restraining the defendants from
causing obstruction and interference to their possession over the suit
property. The petitioners have filed their written statement stating that
they are in possession of the entire suit property and the suit property
which the petitioners are claiming is relinquished by one Baliram
Khedekar in favour of the petitioners, which is admitted by the legal heirs
of the Baliram, who are the defendants in the Civil Suit. In their written
statement they have stated that their father Baliram had relinquished half
share of the suit property in favour of the petitioners. The issues were
framed and the issue No.4 is regarding relinquishment of share in favour
of the petitioners.
4. Defendant Nos.1 and 2 have filed the application to amend
the written statement as they found the affidavit executed by respondent
Nos.6 to 12 stating therein that their father deceased Baliram has already
executed relinquishment deed in favour of the father of the petitioners and
accordingly, they have been in possession of the suit property. In view of
the said circumstance, the petitioners have filed the application at
4/5 wp.1818.19-J.odt
Exhibit - 108 under Order 6 Rule 17 of the Code of Civil Procedure, 1908
for amendment of their pleadings. They sought the incorporation of
pleadings in their written statement that "the legal heirs of the deceased
Baliram have executed an affidavit in favour of the petitioners stating
therein that the deceased Baliram has relinquished his half share of the
suit property and the petitioners are in possession of the entire suit
property". The said application was objected by the plaintiffs and learned
Civil Judge, Junior Division had rejected the application stating that the
proposed amendment being a part of evidence need not be incorporated in
the written statement. Defendant No.1 can examine legal heirs of the
deceased Baliram Khedekar as a witnesses so that plaintiffs will also get an
opportunity to examine said witnesses. The proposed amendment is not
necessary to decide the controversy between parties.
5. Heard both the learned Counsel and perused the record.
6. The petitioners are claiming amendment in the written
statement as they got the affidavit of the year 2008 executed by the
defendant Nos.6 to 12, who are the legal heirs of Baliram and they have
stated about relinquishment of the share in favour of the petitioners, is not
denied by the legal heirs, whose affidavit they want to bring on record.
The pleadings are there in the written statement. The issue is already
framed. The petitioners can examine the witnesses and brought the
5/5 wp.1818.19-J.odt
affidavit on record. There is no need of pleadings in written statement
about said affidavit. As the pleadings are already there, the Trial Court
has rightly observed that the amendment need not be incorporated in the
written statement.
7. In view of the above said observations, the writ petition
stands dismissed.
8. Rule is discharged.
(MRS.VRUSHALI V. JOSHI, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 07/03/2024 18:18:30
