1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 6418 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 6418 OF 2010 *** 1. Heard Advocate Shri Patni for petitioner/ defendant, Shri Mantri for Respondent/ plaintiff. In the suit simplicitor for injunction to protect his possession the petitioner has come up with a defence that property in his possession is distinct and is not the property claimed by present Respondent/ plaintiff. During pendency of suit and particularly after cross examination of plaintiff, application for amendment under Order VI Rule 17 C.P.Code was moved stating that the petitioner/ defendant came to know about some proceedings in relation to property claimed by Respondent/ Plaintiff before Deputy Superintendent of Land Records and through it got knowledge of the sale deeds executed by him way back in 1974 in favour of third person. In view of 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 6418 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. this and in any case, as Respondent/ plaintiff has no interest left in property claimed by him, amendment to written statement was sought. That has been rejected by the trial Court. Trial Court has found that there was no reason for moving such application belatedly. 2. Advocate Shri Patni has invited attention to provision 41 (a) of Specific Relief Act, 1963 to urge that when Respondent/ plaintiff has no interest in the alleged property, suit for injunction on his behalf is not maintainable. It is further urged that the suit is filed prior to 2002 and hence provisions of Order VI Rule 17 C.P.C. could not have been looked into by the trial Court. 3. According to Shri Mantri question of title is not involved and it is simply the 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 6418 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. question of possession which calls for determination. The petitioner/ defendant is claiming to be in possession of distinct property and not the property of the plaintiff/ respondent. According to him, looking to the nature of controversy, the cause sought to be introduced by the amendment is alien to it. 4. Though the trial Court has found amendment belated and also applied amended provisions of Order VI Rule 17 of C.P.Code, the order cannot be said to be without jurisdiction. The trial Court has considered the facts already mentioned above. The petitioner/ defendant is disputing very possession of Respondent/ plaintiff. Thus, question involved before trial Court is not of title to property but of possession and that too because of the dispute in relation to identity of the properties. 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 6418 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 5. Hence, with liberty to the petitioner/ defendant to challenge the impugned order after suit is finally decided, if occasion therefor arises, present petition is disposed of. No costs. [B.P.DHARMADHIKARI, J.] Dated:08/04/2011. ans/6418