1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3947 OF 2009 Madarsa Mohamadiya Arabia Madina Masjid Trust, Karad ...Petitioner vs. Abidalli Khajamiya Kazi & Ors. ...Respondents Shri Dilip Bodake for the petitioner Shri V.D.Raut for the 1st respondent CORAM :A.S.OKA,J. DATE : OCTOBER 6, 2009 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the first respondent. The first respondent is the original plaintiff who has filed a suit for partition and separate possession. The petitioner is the added 14th defendant. The petitioner filed a written statement in which the petitioner disputed the claim of the first respondent-plaintiff as regards the property described in paragraph 1(B) of the plaint bearing CTS No. 180/A admeasuring 432.3 sq. meters at Karad. The contention of the petitioner appears to be that the said property is the property vesting in the petitioner which is alleged to be Wakf governed by the Maharashtra Wakfs Act,1995. An application was made by the petitioner for framing an additional issue based on the said contention in the written statement. The said application has been rejected by the trial court by the impugned order. 2 2 The learned counsel for the petitioner submitted that the learned trial Judge has proceeded on erroneous footing that by carrying out amendment to the plaint, the claim has been restricted only to a part of the suit property and the property claimed by the petitioner has been excluded. His grievance is that while deciding the application for framing additional issue, the trial court has purported to decide the issue by holding that in view of the amendment to the claim, no relief has been claimed in respect of the trust property. The learned counsel for the first respondent submitted that the property claimed by the petitioner has been excluded from the suit by carrying out amendment after filing of the written statement. He submitted that in any event, the first respondent will have to prove that he has a share in the suit property as contended by him and therefore, all issues relating to title will have to be decided. He submitted that there is no error in the impugned order. 3 I have carefully considered the submissions. In the plaint, prior to the amendment, a relief was claimed in respect of the property bearing CTS no.180/A admeasuring 432.3 sq. meters at Karad. Later on, it appears that an amendment was carried out to the plaint and as far as the property described in paragraph 1(B) is concerned, the claim was restricted to area of 50 ft X 45 ft. It is 3 pertinent to note that the property register card of CTS no.180-A shows that out of the area of 517 sq. yards, the petitioner has a claim over an area of 248.05 sq yards. Therefore, an issue will remain to be decided as to whether the area of 50ft X 45 ft forms part of the property allegedly vesting in the petitioner. Therefore, an issue to that effect will have to be framed. Though the other issues as suggested by the petitioner are not framed, if the petitioner discharges its burden by proving the additional issue, the legal consequences will follow based on the relevant provisions of law. 4 Hence, the impugned order deserves modification and the petition is disposed of by passing following order : i) The trial court will frame an additional issue as under : Whether the defendant no.14 proves that the suit property described in paragraph 1-B of the plaint admeasuring 50 X 45 vests in the said defendant ? ii)Subject to observations made earlier, impugned order is accordingly modified. iii)All contentions of the parties on merits are kept open. JUDGE