(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5917 OF 2010 Nirman Bharati Landmarks Pvt. Ltd., Having its registered office at 104, Parmar Chambers, Sadhu Vaswani Road, Pune, through its Director, Shri Ranjeet s/o. Ashok Darak, Age : 32 years, R/o. Kanchanjunga, Railway Station Road, Aurangabad. .. Petitioner. versus 1. Smt. Mainabai Dadappa Borkhade, Died through L.Rs. Respondent Nos.2 to 4. 2. Bhimashankarappa s/o. Dadappa Borkhade, Age : Major, Occupation : Business, R/o. Samarth Nagar, Aurangabad. 3. Narayan s/o. Dadappa Borkhade, Age : Major, Occupation : Business, R/o. Samarth Nagar, Aurangabad. (2) 4. Arjun s/o. Dadappa Borkhade, Age : Major, Occupation : Business, R/o. Samarth Nagar, Aurangabad. .. Respondents. ....................... Mr. A.S. Bajaj, Advocate, for the petitioner. Respondent no.1 Dead. Mr. A.R. Vaidya, Advocate, for respondent nos.2 to 4. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 9TH MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. A.S. Bajaj, appearing for the petitioner, and Adv. Mr. A.R. Vaidya, appearing for respondent nos.2 to 4. Respondent no.1 is dead through legal representatives, namely, respondent nos.2 to 4. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. (3) 3. Receiver had filed a suit way back in 1987 against the present respondents for removal of encroachment. The petitioner is successor and substituted Receiver as plaintiff. In that suit, claim initially made was of encroachment on 442.7 Square Metres of land Survey No. 91, corresponding CTS No. 17848. Taluka Inspector of Land Record was appointed as commissioner and after receipt of his report, suit was amended and extent of area encroached was increased to 558 Square Metres. The plaintiff thereafter moved another application and pointed out that as per that report of TILR, CTS No. 17849 was also encroached upon and hence in prayer clause, where CTS No. 17848 is mentioned, they wanted leave to add CTS No. 17849 also. The amendment was opposed by respondents and by the impugned order, the trial court has rejected it. 4. According to Adv. Mr. Bajaj, appearing for the petitioner, the event has occurred during pendency of suit and it does not in any way alter the nature thereof. The trial court has gone on merits of the controversy and in the process, has attempted to record a finding that there is no merit in the amendment as sought. 5. Adv. Mr. Vaidya, appearing for the respondents, has (4) urged that the report of TILR does not mention any encroachment on CTS No. 17849. In any case, according to him, as that fact was well within knowledge of petitioner / plaintiff, the amendment could have been sought initially when area of encroachment was increased. He is relying upon judgment of learned Single Judge of this Court reported at 1994- Mh.L.R.-1-236, in the case of Vijay Shankar Vs. Mourya Ramsurat Rampyare, to urge that such fact within knowledge cannot be allowed to be added subsequently. He further states that amendment, as moved, is also vague and as no specific date of dispossession is pleaded, the issue of limitation which arises needs to be kept open. 6. With the assistance of both learned Counsel, I have perused the impugned order. The impugned order does not note that as per report of TILR, there is no encroachment on CTS No. 17849. What it notes that CTS No. 17849 is not part and parcel of old Survey No. 91. This finding on application of mind is totally unnecessary. The petitioner / plaintiff contended that in encroachment of 558 Square Metres, CTS No. 17848, as also CTS No. 17849 was covered. Whether their contention is correct or not, whether these CTS numbers form part of Survey No.91 or not, are disputed questions which can be answered by the trial court on appreciating evidence. It cannot be reason for (5) denying amendment. 7. The judgment delivered by this Court, in the case of Vijay Shankar Vs. Mourya Ramsurat Rampyare (supra), reveals that suit was filed challenging agreements dated 7th September 1991 and 27th November 1991. Said dispute was filed on 5th March 1993 and temporary injunction was sought to restrain defendants from carrying further developments in accordance with these agreements. The trial court, as also, appellate court refused that relief. Writ Petition was disposed of by this Court in motion hearing and suit was made time bound i.e. suit was directed to be decided by the end of July 1993. Direction was given to parties to maintain status quo. The petitioner had taken inspection of records of respondent no.4 immediately after filing of dispute. They had carried out one amendment immediately after inspection of records in the month of March 1992. Thereafter in September 1992, the petitioners moved another application to incorporate certain averments relating to resolution passed by Society on 27th August 1991. It is in this background that those observations have been made by this court. 8. The facts here are different. The extent of encroachment is already on record and according to the (6) petitioner, the encroachment is in Survey No. 91. They are not changing this stand. The original prayer states that the suit of the plaintiff for possession of portion of land Survey No.91, corresponding CTS No. 17848, admeasuring 558 Square Metres, may be decreed. Now, the petitioner only wanted to add one more CTS number to it. It is obvious that neither nature of challenge nor nature of suit undergoes any change. All objections and defences available to respondents remain in tact and no prejudice is caused to them in any way if the amendment is allowed. The trial court has unnecessarily gone on merits of the controversy. 9. In the result, the petition is allowed. The impugned order dated 19-3-2010, passed by learned Joint Civil Judge (Junior Division), Aurangabad, below Exhibit 79 in Regular Civil Suit No. 189/1987, is quashed and set aside. Application Exhibit 79 before the trial court is allowed. Petitioner / plaintiff to carry out appropriate amendment by 28th March 2011. Liberty to the respondents to raise all defences available to them by way of consequential amendment / counter thereafter. 10. Rule is made absolute accordingly. No costs. (7) 11. Certified Copy expedited. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp5917