1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 197 OF 2009 1. Shivaji S/o Murlidhar Ugale } Age : 31 Years, Occ. : } R/o : Samsherpur, Tq. Akole, } Dist. : Ahmednagar. } 2. Sanjay S/o Murlidhar Ugale } Age : 38 Years, Occ. : Agriculture, } R/o : Samsherpur, Tq. Akole, } Dist. : Ahmednagar. } .... PETITIONERS V E R S U S 1. Bacchu S/o Narayan Ugale } Age : 51 Yrs.,Occ. : Agriculture, } R/o : Samsherpur, Tq. Akole, } Dist. : Ahmednagar. } 2. Sakhubai W/o Bacchu Ugale } Age : 47 Yrs., Occ. :Agriculture, } R/o : Samsherpur, Tq. Akole, } Dist. : Ahmednagar. } 3. Baban S/o Bacchu Ugale } Age : 27 Yrs., Occ. : Agriculture, } R/o : Samsherpur, Tq. Akole, } Dist. : Ahmednagar. } 4. Kavita D/o Bacchu Ugale } Age : 27 Yrs., Occ. : Agriculture, } R/o : Samsherpur, Tq. Akole, } 2 Dist. : Ahmednagar. } 5. Meena D/o Bacchu Ugale } Age : 24 Yrs.,Occ. : Agriculture, } R/o : Samsherpur, Tq. Akole, } Dist. : Ahmednagar. } 6. Subhash S/o Bacchu Ugale } Age : 47 Yrs., Occ. : Agriculture, } R/o : Samsherpur, Tq. Akole, } Dist. : Ahmednagar. } .... RESPONDENTS Mr. V.J.Dixit, Advocate instructed by Mr. S.B.Yawalkar, Advocate for petitioners. Mr. S.T.Shelke,Advocate for respondent No. 1. CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 10/02/2010 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioners are original plaintiffs, who filed suit (R.C.S. No. 105 of 2007) for declaration of ownership and injunction. They were minors when their father Murlidhar died. Originally, the suit land along with some other properties were held by deceased Narayan Govind Ugale. He had four (4) sons, namely, Murlidhar, Baburao, Madhukar and Bacchu. In the life time of said Narayan, Baburao and 3 Madhukar separated themselves from the joint Hindu family as they were not pulling on well with him and other members of the family. It is undisputed that they were given their due share by the father i.e. Narayan. The remaining property was distributed equally between Murlidhar and Bacchu. The petitioners filed amendment application vide Exh. 29, whereby they sought re-partition or equal partition if it was found by the Court that the earlier partition effected by the respondent no. 1 was improper and inequitable. The learned Civil Judge held that the amendment will be barred by limitation and as such dis allowed the same. Hence, the petition. 3. Heard learned counsel for the parties. 4. The petitioners’ counsel has placed on record a certified copy of the compromise pursis filed by the petitioners and the respondent nos. 2 to 6 before the trial court vide Exh. 64 ( marked “ X ”). It appears that the respondent nos. 2 to 6 agreed that there was mistake while recording the mutation on the basis of the previous partition and, therefore, they surrendered their rights to the extent of excess 18 Rs. land shown in their name. They admitted that the petitioners were entitled to the said 18 Rs. land. They stated that they have surrendered the possession of said excess 18 Rs. land in favour of the petitioners. The respondent no. 1 is not, however, a party to the said compromise pursis. Mr. S.T. Shelke sought time to obtain 4 instructions from the respondents about the compromise between the parties. He states that he could not receive instructions from the respondents and, therefore, he is unable to say whether the respondent no. 1 is also in agreement with the other respondents or he wants to contest the suit. 5. What transpires from the record is that, after the death of the petitioners’ father, the respondent no. 1 was head of the joint Hindu family. He was custodia legis. He effected the partition by filing an application to record the name of the mother of the petitioners as guardian and of the respondent nos. 2 to 6. There is no dispute about the fact that the father of the petitioners and the respondent no. 1 were real brothers interse and as such were entitled to receive equal shares. 6. For a moment, even assuming that the amendment might have created bar of limitation to claim the relief of re-partition, then also such issue could not be concluded at the interim stage. The learned Civil Judge did not appreciate the relevant circumstances. The petitioners alleged that there was error committed in the year 1986 when the application for mutation was submitted to the Tahsildar and, therefore, incorrect entries were taken in the relevant record. It is pertinent to note that previously suit (R.C.S. No. 178 of 1998) was filed and injunction was clamped on the respondent no. 1 whereby he was restrained from alienating any part of the suit property until the 5 partition was effected by mets and bounds. Considering the back- ground facts and the attending circumstances, the amendment sought by the petitioners should have been allowed. The amendment was clarificatory in nature and alternate relief was sought by way of abundant precaution. Under the circumstances, the impugned order is unsustainable in the eye of law. The trial is yet to begin and, therefore, proviso appended to Rule 17 Order VI of the Code of Civil Procedure is also not attracted. 7. For the reasons afore stated, I am inclined to hold that the impugned order is unsustainable and liable to be interfered with. Hence, the petition is allowed. The impugned order is set aside. The amendment application be deemed as allowed. Rule made absolute accordingly. No costs. [ V.R.KINGAONKAR ] JUDGE knp/WP 197.09