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Judgment
. Rule. Rule made returnable forthwith.
By the consent of the parties, Writ Petition is taken up for final disposal.
This is a civil dispute inter se the family members concerning partition of the ancestral properties.
The petitioner filed Regular Civil Suit No.144 of 2023 in the Court of learned Civil Judge Senior Division, Dharashiv for partition, separate possession and declaration. The sum and substance of the plaint is that the petitioner and the present respondent nos.1 to 6 are successors of one Rambhau Umbre. That, keeping the petitioner in dark, Rambhau Umbre and present respondent nos.1, 3, 4 and 6 executed a registered partition deed in the Sub Registry, Osmanabad thereby dividing the properties among themselves. There was partition of in all five agricultural properties including survey no.185/2. This partition was registered on 20.09.2016. The petitioner learnt about the partition deed which, according to him was executed behind his back and with an ulterior object to deprive him from the joint property.
Resultantly, the petitioner lodged Civil Suit in the Trial Court. In the suit, the defendants appeared and filed their written statements. The petitioner at that juncture realized that the property i.e. agricultural land falling in survey no.185/2 is missed to be incorporated in the paragraph no.3 of the plaint, wherein description of the suit property was mentioned. Consequently, the plaintiff filed an application below Exhibit-56 before the Trial Court seeking amendment of the plaint. The petitioner predominantly sought amendment in the property description with a permission to add agricultural land no.185/2 as a suit property. By way of another amendment, the petitioner sought to bring on record the fact that the defendants had sold out the land to various plot holders under different sale deeds.
This application was strongly opposed by the present respondent nos.1, 2, 4 and 5. It was contended that the application was not a bonafide one. The respondents submitted that the application was an afterthought act of the petitioner, merely to harass the respondents as also the bonafide purchasers of the plots. The plea of ignorance was strongly objected. With this, the defendants/respondents prayed to dismiss the application.
The Trial Court heard the parties and vide the order dated 11.10.2024 impugned in the petition, rejected the application. The Trial Court observed that the petitioner was evidently aware that the subject matter property i.e. 185/2 could be made subject matter of the partition suit. The Trial Court also observed that the petitioner has not placed anything on record to show that the subject matter property was an ancestral property and he had interest in the said property. With this, the Trial Court pleased to reject the application.
As against the rejection, the petitioner/plaintiff is before this Court.
I have heard Mr. S. B. Choudhari, learned Advocate for the petitioner, Mr. M. R. Deshmukh, learned Advocate for the contesting respondents and Mr. M. B. Kolpe, learned Advocate for the bank at length. It is an evident fact that the suit has arisen out of the partition deed which is registered on 20.09.2016 with register no.4779/2016 in the office of the Sub Registry, Osmanabad. The description of the properties partitioned vide the said instrument includes in all five agricultural lands including land gut no.185/2, which is the subject matter/property. The parties to the said instrument have categorically stated that all these properties were their joint holdings and ancestral properties, and therefore, were being partitioned.
Pertinent to note that the respondents/contesting defendants did not challenge or dispute their relationship with the present petitioner. In the light of these facts, I do not comprehend with the observations made by learned Judge of the Trial Court that the petitioner ought to have placed something on record to establish that the subject matter/property bearing survey no.185/2 was ancestral property and that he had any right or interest therein. It is also not the case of the contesting defendants that the petitioner has already waived his right/interest from the subject matter/property bearing survey no.185/2. The parameters to allow amendment in the pleading is that it must not change the nature of the suit.
Considering the prayer made in the application at Exhibit-56 for amending the plaint to the extent of adding one of the ancestral/joint properties and to add the subsequent purchasers, it certainly do not change the nature of the suit. Hence, I find that the petitioner has made out a successful case calling interference of this Court. Hence, I pass following order:
ORDER
a. Writ Petition stands allowed.
b. Order dated 11.10.2024 passed by learned Joint Civil Judge, Senior Division, Osmanabad in Regular Civil Suit No.144 of 2023 below Exhibit-56 stands quashed and set aside.
c. The petitioner shall amend the suit within a period of two weeks from today and serve a copy of amended plaint to the other side.
d. The defendants are at liberty to file written statement if so advised within a period of two weeks thereafter.
e. The Trial Court to proceed with the suit.
f. It is clarified that this Court has not expressed any opinion as to the nature of the subject matter/property bearing survey no.185/2 particularly as to whether it is ancestral property or otherwise.
g. Civil Application if any, stands disposed of.