1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 549 OF 2008 SECOND APPEAL NO. 549 OF 2008 SECOND APPEAL NO. 549 OF 2008 Smt. Mirabai Ramasare Pardeshi ..Appellant (Orig. Plaintiff) Vs. Smt. Ramkali Rambharose Katiyar since deceased through her heirs and legal representatives: 1.1 Shri Rameshchandra Rambharose Katiar & Ors. ..Respondents (Org. Defendants) Mr. T.D.Deshmukh, Advocate, for the appellant. Mr. H.R.Yadav, Advocate, for the respondents. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 7th August, 2008. DATE: 7th August, 2008. DATE: 7th August, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2 2. It appears that the respondents in the present dispute were the plaintiffs/appellants in Second Appeal No.66/1975. That Second Appeal was decided on 6.8.1984 in their favour. In that litigation, it was claimed by them that they were in possession of the property as tenants and they were dispossessed illegally by the defendants therein. The decree for possession was passed in their favour in that dispute and that decree has been already executed and they have taken possession. The present appellant/plaintiff claimed that she had purchased the property from the original landlord Jhunjhunwala and according to her she was in possession and she was dispossessed from the property. However, after some discussion at the Bar, the learned Counsel for the plaintiff/appellant makes a statement that in view of the decree in favour of the present defendants in the earlier suit, they are in possession as tenants and the present plaintiff has purchased the property and has become owner and landlady of the property. According to him, in the given circumstances, the plaintiff is not in a position to claim possession of the property from the respondents, who are in possession as tenants, but she can file a suit only for declaration of title as owner and landlady of the property. In view of this, he seeks to make amendment 3 in the plaint. According to him, in view of this, the suit maybe remanded back to the trial Court when appropriate amendment will be made in the plaint and the suit may be decided only in respect of her title over the property. 3. The suit of plaintiff was dismissed on the ground that the suit is not tenable in view of Order XXI Rue 99 of C.P.C. Order XXI Rule 99 pertains to objections to be taken by the person who is dispossessed in execution of the decree and wants restoration of possession. As the plaintiff concedes that she does not want to claim possession, the said objection shall not remain and the suit for declaration for her title can be independently tried by the Courts below. 4. For the aforesaid reasons, the Second Appeal stands disposed of with following directions :- (i) Regular Civil Suit No.1853 of 1996 is hereby remanded to the Court of Civil Judge, Senior Division, Kalyan, with liberty to the plaintiff to move an application for appropriate amendment to delete the prayer for possession. The trial court shall allow that amendment and thereafter proceed with the suit only in respect of declaration of 4 title of the plaintiff. (ii) As the suit is originally filed in 1984 before the District Court, Thane, the trial Court shall expedite the hearing of the suit and dispose of the same as far as possible within one year from the date of receipt of the writ. 5. As the Appeal itself is disposed of, C.A. No.1056 of 2007 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)