1 wp 2746.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2746 OF 2010 1. Rajabhau S/o Namdeo Ghule, Age : 32 Years, Occu. : Agril., R/o Dongaon, Tq. Kaij, Dist. Beed. 2. Smt. Jijabai W/o Namdeo Ghule, Age : 59 Years, Occu. : Agril., R/o Dongaon, Tq. Kaij, Dist. Beed. .. .. Petitioners Versus 1. Haribhau S/o Tatya Bhagat, Age : 42 Years, Occu. : Shoe Maker, R/o Dongaon, Tq. Kaij, Dist. Beed. 2. Babasaheb S/o Kisan Bhagat, Age : 27 Years, Occu. : Shoe Maker, R/o Dongaon, Tq. Kaij, Dist. Beed. 3. Gagasagar W/o Baliram Chaure, Age : 30 Years, Occu. : Agril., R/o Nagzari, Tq. Kaij, Dist. Beed. 2 wp 2746.10 4. Kanta Shamrao Munde, Age : 28 Years, Occu. : Agril., R/o Chikhalbeed, Tq. Dharur, Dist. Beed. .. .. Respondents Shri K. K. Kulkarni, Advocate for Petitioners. Shri V. M. Chate, Advocate for the Respondent No. 1. The respondent Nos. 2 to 4 are served - absent. CORAM : S. V. GANGAPURWALA, J. DATE : 01ST AUGUST, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present petitioner is the original plaintiff who had filed the suit for possession and injunction in respect of land bearing Sy. No. 46/E. During the pendency of the suit the present petitioners had also filed an application for amendment in the year 2008 thereby sought relief of declaration about sale deed executed by Namdeo in favour of present defendants is not binding on the petitioners. Thereafter, the parties have led their evidence and the matter was fixed for arguments. At that stage the present petitioner moved an application for amendment thereby alternatively seeking relief of partition and separate 3 wp 2746.10 possession. The said application is rejected. Aggrieved thereby the plaintiffs have filed the present writ petition. 3. Shri Kulkarni, the learned counsel contends that the application should have been allowed. The plaintiffs have every right to claim an alternate relief. In fact, by way of an amendment a lesser relief was sought to be claimed than the relief actually claimed. The suit was for possession and declaration that the sale deed executed by Namdeo in favour of defendant is not binding on them. As such, the amendment seeking lesser relief could have been allowed in alternate. 4. Shri Chate, the learned counsel vehemently opposes the petition and states that twice the plaintiff had amended but nothing has been stated as to why the relief was not sought earlier. The suit is filed in the year 1994 under the guardianship of mother who is also the plaintiff. There are other properties also and a suit for partial partition is not maintainable. The learned counsel further contends that no reasons are given for not exercising due diligence earlier and as such an amendment application cannot be allowed as is held by the Apex Court in a case of Chander Kanta Bansal Vs. Rajjinder Singh Anand 4 wp 2746.10 reported in AIR 2008 S.C. 2234. The learned counsel further contends that said amendment could have been sought earlier. Even the question of limitation would arise. 5. With the assistance of the learned counsel I have gone through the order and the pleadings. No doubt, the amendment is sought late i. e. at the stage of arguments. Even a Court can mould the relief invoking its powers under Order VII Rule 7 of the Code of Civil Procedure. The plaintiffs have filed suit for declaration regarding sale deed executed by Namdeo in favour of defendants and possession. The plaintiffs are entitled to claim alternate relief. By way of an amendment a lesser relief is being claimed i. e. of partition. For a party to claim relief of partition and separate possession, it is necessary that all the parties and all the properties are to be included in the suit and a suit in respect of partial partition would not be maintainable. The only exception is regarding an alienated property. In case of an alienated property, even a suit for partition and separate possession in respect of said property would be maintainable as is held by the Division Bench of this Court in a case of Patilbua Pandu Landge Vs. Sadashiv Vithoba Kamble and others reported in 1976 Mh. L. J. 158. 5 wp 2746.10 6. This property is said to have been alienated by the Namdeo in the year 1977 to the present defendants. 7. It is also trite law that the merits of the amendment are not required to be considered at the time of amendment application. The defendants will have all the right to agitate the merits of the amendment at the time of filing of their written statement and evidence if required. Moreover, at this stage, even the point of limitation cannot be decided. Even the amendment which is claimed is within a period of limitation or not would be decided by the Court at appropriate time i. e. at the time of deciding the suit. That point is also required to be kept open. 8. In view of the fact that the amendment sought is in respect of lesser relief and even the Trial Court can mould the relief under Order VII Rule 7 of the Code of Civil Procedure. I am inclined to allow the amendment. The said amendment will be deemed to have been made, when the application for the amendment is filed and the point of limitation is kept open. 9. As the amendment is being made at late stage, the petitioners deserve to be mulct with cost. 6 wp 2746.10 10. In the result the amendment application at Exhibit 109 filed in R.C.S. No. 247/1994 is allowed with the observations as made above and subject to payment of cost of Rs. 3,000/- (Rs. Three thousands only) to be paid to the respondent No. 1 within a period of four weeks from today. 11. The rule accordingly is made absolute with above observations, however, with no order as to costs of the present writ petition. [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11