1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5977 OF 2007. Bajirao S/o Ganpat Jagdale ... Petitioner. Versus Kisan S/o Sakharam Navle and others ... Respondents. ... Mr.V.P.Latange, advocate for the petitioner. Mr.A.Y.Pandule, advocate for the Respondent No.1. Mr.B.S.Shinde, advocate for the Respondent Nos.2A to 2E. ... CORAM : V.R.KINGAONKAR,J. Date : 26.06.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioner is original defendant No.1 in suit (RCS No.23/1992). The Respondent No.1 is Ex-Military Serviceman to whom certain 2 agricultural land is allotted by the Government which was declared as surplus under the provisions of the Maharashtra Ceiling on Holdings Act and was subject of distribution. The Respondent No.1 filed suit for perpetual injunction alleging that he is owner and possessor of old Gat No.87-A (now Gat No.91) to the extent of 3 hectares land as described in the claim clause. The petitioner filed his written statement to the suit. He subsequently filed an application (Exh.82) for amendment of the written statement alleging that after going through the abuttals shown in the plaint, he noticed that a part of his land, which was sold by his vendor, namely Buwaji Waghmode was less in area than actually should have been sold. He had obtained rectification deed which he filed on record and sought amendment of the written statement in order to show the area of which he is owner and possessor. The amendment application was resisted by the Respondent No.1 (plaintiff). The learned trial Judge dismissed the amendment application. Hence, the petition. 3 3. Heard learned counsel for the parties. 4. Indisputably the controversy relates to description of the land which is purchased by the petitioner and ownership of his vendor. The learned Civil Judge while rejecting the application for amendment, seems to have observed that vendor of the petitioner and real brother of his vendor, namely, Manik Babu Waghmode are clever persons and they manipulated entries in the Consolidation record. Be that may as it is, such finding could not be rendered at the stage of consideration of the amendment application. It is only a matter of trial to reach any particular conclusion about the absence of ownership with the vendor of the petitioner in respect of the additional land which he is claiming under the rectification deed. One can not be oblivious of the fact that though the suit is simpliciter for injunction,yet, the question of title needs consideration as the same is incidental in such proceedings. The amendment sought by the petitioner would not cause any material change in the defence nor any prejudice 4 was likely to be caused to the plaintiff/Respondent No.1. For, the plaintiff has already described the land allotted to him and the source of his possession. Considering these aspects, the impugned order is improper and perverse. The observations made by the trial Court in the impugned order as regards the absence of title with the vendor of the petitioner shall be ignored and paragraph No.4 of the impugned order be deemed as deleted for consideration purpose. 5. In view of foregoing discussion, the petition is allowed. The impugned order is quashed and the learned trial Court is directed to permit amendment of the written statement as sought. The observations made in this order shall not influence the learned trial Court while deciding the suit on merits. The suit shall be expeditiously disposed of. Rule made absolute. No costs. (V.R.KINGAONKAR,J.) asp/office/wp597707