Bombay High Court
Jayesh S/O. Bakimchand Lodaya vs Deokumar Rukhabadas Chaware And Others on 29 September, 2025
2025:BHC-NAG:9911
2909WP7196-24.odt 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7196 OF 2024
Jayesh Bakimchand Lodaya, aged about 53 years,
Occ: Business, R/o Karanja, Tq. Karanja, District Washim. PETITIONER
VERSUS
1. Deokumar Rukhabadas Chaware,
aged about 41 years, Occ: Nil.
2. Shashikant Narendrakumar Chaware,
aged about 70 years, Occ: Nil.
3. Pradip Rajkumar Chaware, Aged about 62 years, Occ: Nil.
4. Amal Rajkumar Chaware, Aged about 52 years, Occ: Nil.
Nos.1 to 4 R/o Karanja Lad, Tq. Karanja Lad Dist.Washim.
5. Vilas Shantikumar Chaware (deceased)
Through Legal heirs.
5-a. Anjali Vilas Chaware, Aged about 70 years,
Occ: Household work, R/o Karanja Lad,
Tq. Karanja Lad, District Washim-444105.
5-b. Amit Vilas Chaware, Aged about 47 years,
Occ: Business & Cultivator, R/o Karanja Lad,
Tq. Karanja, District Washim-444105.
5-c. Parag Vilas Chaware, Aged about 49 years,
Occ: Business, R/o Anjangaon Surji,
Tq. Anjangaon Surji, District Amravati 444705.
6. Nirajan Shantikumar Chaware (deceased)
Through legal heirs.
6-a. Kumud Niranjan Chaware, Aged about 62 years,
Occ: Household & Agriculture.
6-b. Ninad Niranjan Chaware, Aged about 48 years,
Occ: Business
6-c. Navnit Niranjan Chaware, Aged about 42 years,
Occ: Teacher.
Nos.6-a to 6-b R/o Karanja, Tq. Karanja,
District Washim - 444705.
7. Bharat Shantikumar Chaware (deceased)
Through legal heirs.
7-a. Sushil Bharatkumar Chaware,
Aged about 46 years, Occ: Business,
R/o Chaware Line, Karanja, Tq. Karanja,
District Washim-444705.
7-b. Vijaya Bharatkumar Chaware,
Aged about 72 years, Occ: Household,
R/o Chaware Line, Karanja, Tq.Karanja,
District Washim-444705.
2909WP7196-24.odt 2 Judgment
8. Manoj Ganpatlal Khandelwal, aged about 45 years,
Occ: Nil, R/o 1st Floor, above Dilipraj Goenka
Office, Opposite Janta Commercial Bank,
Old Cotton Market, Akola.
9. Manikant Shivaji Mota, Aged 75 Yrs. Occ:Business.
10. Vijay Umarsi Lodaya, aged 72 yrs. Occ:Business.
11. Gunwantiben Umarsi Lodaya,
aged 90 yrs. Occ: Household.
Nos.9 to 11 R/o Karanja, Tq. Karanja, District Washim.
12. State of Maharashtra Through Collector, Washim.
13. Superintendent of Land Records,
Washim, Dist. Washim.
14. Dy.Superintendent of Land Records, Karanja,
Tq. Karanja, District Washim.
15. Mr.Ujade, Measurer-Surveyor, Office of
Dy.Superintendent of Land Records,
Karanja, Tq. Karanja, District Washim.
16. The Tahsildar, Karanja, Dist. Washim. RESPONDENTS
______________________________________________________________
Dr.Mrs. R.S. Sirpurkar, Counsel for the petitioner.
Shri M.R. Joharapurkar, Counsel for the respondent nos.1 to 8.
Shri S.V. Narale, Assistant Govt. Pleader for the respondent nos.12 to 14 and 16.
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CORAM : PRAFULLA S. KHUBALKAR, J.
DATE ON WHICH THE ARGUMENTS WERE HEARD : SEPTEMBER 11, 2025
DATE ON WHICH THE JUDGMENT IS PRONOUNCED: SEPTEMBER 29, 2025
JUDGMENT
RULE. Rule made returnable forthwith. Heard finally by consent
of the learned counsels for parties.
2. This writ petition filed under Article 227 of Constitution of India
seeks indulgence of this Court with the order passed by the trial Court on
an application under Order XIV Rule 5(2) of the Code of Civil Procedure,
1908 (for short, 'the Code').
3. The petitioner, who is the original defendant no.1 in the suit, has
filed this writ petition challenging the order passed by the rial Court on
the application filed under Order XIV Rule 5(2) of the Code seeking
recasting of issues.
2909WP7196-24.odt 3 Judgment
4. Short controversy involved in the instant petition is about necessity
of recasting Issue No.5 as framed by the trial Court placing burden upon
the plaintiffs as well as the defendants to prove their ownership on various
portions of land from field Survey No.21/2, based on the pleadings of
parties.
5. Dr.R.S. Sirpurkar, learned counsel for petitioner vehemently
submitted that impugned order passed by the trial Court rejecting the
application filed by the petitioner-defendant no.1 for recasting of issue is
unsustainable in law. She submitted that in view of the controversy
involved in the suit, the burden to prove ownership over land bearing
Survey No.21/2 should have been entirely put upon the plaintiffs. She
submitted that the plaintiffs have filed the suit for mandatory and
permanent injunction alongwith damages and they have claimed title and
ownership over the suit properties on the basis of sale-deeds in their
favour. She submitted that although the defendant no.1 has filed written
statement denying title and ownership of the plaintiffs, burden to prove
the title and ownership entirely rests upon the plaintiffs. She therefore
submitted that the trial Court had powers to recast the issues under Order
XIV Rule 5(2) of the Code and since burden is unnecessarily shifted on the
defendant no.1 vide Issue No.5, recasting of said issue is necessary.
6. Opposing the writ petition, Shri M.R. Joharapurkar, learned counsel
for respondent nos.1 to 8 supported the impugned order. He submitted
that the issues are framed by the Court on the basis of pleadings of
the parties and no case is made out for recasting the issues at this stage.
2909WP7196-24.odt 4 Judgment
He submitted that although the Court is empowered to recast the issues at
any stage, in view of the specific stand taken by the defendant no.1 in his
written statement, the burden is rightly placed upon the defendant no.1 as
well. By inviting attention of the Court to the written statement filed in
the suit and the cross-examination of the witnesses, he submitted that the
application filed by the defendant no.1 is an attempt to avoid the real
controversy involved in the suit. He submitted that in view of the
categorical answers given by the plaintiffs' witnesses during cross-
examination, the defendant no.1 has realized about his inability to prove
his case on the basis of his own pleadings. He also submitted that the
application for recasting of issues is filed after examination of nine
witnesses of the plaintiffs and after the evidence closing pursis is filed on
record. He therefore submitted that the application is rightly rejected by
the trial Court.
7. While considering the rival contentions, it is clear that the
controversy revolves around the necessity for recasting of Issue No.5
which is reproduced below:-
"५. वादी व प्रतिवादी हे सिद्ध करतात काय, की त्यांच्या मालकीच्या सर्व्हे नं.२१/२
मधील कोणती जागा किं वा प्लॉट आहे?"
It has to be noted that the issues are framed by the Court on the basis of
pleadings of the parties. It is crucial to note that the defendants in the
suit have pleaded in their written statement that the defendant nos.1 to 4
are in settled possession of the suit properties and they are co-owners of
2909WP7196-24.odt 5 Judgment
Field Survey No.21/2. A perusal of the plaint shows that the plaintiffs
have claimed their ownership over Field Survey No.21/2. As such, for
deciding the real controversy involved in the suit, the issue as to the
ownership of the parties became vital.
8. The position of law with respect to the provisions of Order XIV Rule
5 of the Code is fairly settled. A reference to the judgment of this Court at
the Principal Seat in Shraddha Associates, Pune & Another Versus
St.Patrick's Town Co-operative Housing Society Ltd. & Others [(2003) 2
Mah LJ 219] is beneficial in this regard. While dealing with the position
of law, it is held by the Single Bench of this Court that framing of issues is
the obligation of the Court in order to find out the exact nature of the
controversy and to narrow down the scope of the dispute between the
parties so as to enable both the parties to the proceedings to know the
exact nature of the case which they are requird to meet in the
proceedings.
9. Having regard to the pleadings of the parties, partiularly the written
statement of the defendant nos.1 to 4 claiming co-ownership over Field
Survey No.21/2, the burden was required to be placed upon the
defendants as well to prove their ownership. It is crucial to note that the
plaintiffs have already led their evidence on the basis of issues framed by
the Court, including Issue No.5. The application for recasting of issues is
filed by the defendant no.1 after the evidence of the plaintiffs is closed. It
thus appears that the defendant no.1 wants to avoid the burden placed
2909WP7196-24.odt 6 Judgment
upon him. In such situation, I am of the firm view that for deciding the
real controversy involved in the suit, the plaintiffs as well as the
defendants are required to establish their respective ownerships over Field
Survey No.21/2. As such, in my considered view, Issue No.5 is rightly
framed. The parties are entitled to lead their respective evidence to prove
the issues including Issue No.5.
10. A perusal of the impugned order shows that the trial Court has
given due consideration to the factual aspects and legal position with
respect to Order XIV Rule 5(2) of the Code. The impugned order is well
reasoned and need no interference on any count. There is no need of
indulgence under Article 227 of the Constitution of India. The writ
petition is therefore dismissed. Rule stands discharged. No costs.
(PRAFULLA S. KHUBALKAR, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 29/09/2025 18:34:22
