KBP 3916-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3916 OF 2009 Sou.Poonam Pravin Pisat ..Petitioner Vs. Ismail Ahmed Dhanse and ors. ..Respondents ......... Mr.C.G.Gavanekar, for petitioner. Mr.M.S.Kadu, for respondent no.3. ......... CORAM : A.S.OKA, J.. DATE : 31 th August, 2009. P.C. : 1] Heard learned counsel for the petitioner and learned counsel for the 3 rd respondent. The petitioner is original defendant and respondents are original plaintiffs. A suit was filed by the respondents - plaintiffs for possession of property bearing House No.1218. The dispute relates to Gala No.6 on the ground floor of the said property which was let out to the petitioner under the agreement dated 1 st January, 1990. The suit filed by the respondents was decreed by the trial court by judgment and decree dated 18 th June, 2007. An appeal was preferred by the petitioner against the said judgment and decree. In the appeal, an application was made on 7 th April, 2008 by the petitioners for amendment of the written statement. It is sought to be contended that during the pendency of suit, on 1 st January, 2007, partition was effected between third respondent and one Mohammad Hassan Bandarkar. It was contended that the suit premises is situated on land bearing gat No.42B/2. It was contended that the effect was given to the said KBP 3916-09.sxw 2 partition in the revenue record on 3 rd January, 2007, by which the said property has gone to the share of said Mohd. Hassan Bandarkar. Therefore, an amendment was sought for the purpose of relying upon the deed of partition and the mutation entry made on the basis of deed of partition. Another amendment it is sought to be made to the written statement that the suit premises were used for the purpose of manufacturing golden ornaments and for the said purpose in the said premises a furnace was being used to melt the gold. By the impugned order, the said application has been rejected. 2] The learned counsel for the petitioner has placed on record copies of relevant documents including the alleged deed of partition. He pointed out that though in the agreement of tenancy in respect of the suit premises, a reference is made to land bearing survey No.42/3, the survey carried out by the revenue authority shows that there is no land bearing said number. He pointed out that the deed of partition relates to Gat No.42-B/2 on which the suit premises are situated as is clear from the record produced by the petitioner. The learned counsel for the 3 rd respondents relied upon the various documents which are placed on record of the courts below and contended that the suit premises are standing on the land survey No.42 B/3. He, therefore, submitted that no interference is called for. The learned counsel for petitioner placed reliance on a decision in the case of Usha Balasaheb Swami and others and Kiran Appeasao Swami and others [2007(5)Mh.L.J. 593]. 3] I have considered the submissions. The deed on which reliance has been placed relates to land bearing survey No.42-B/2. Perusal of the impugned order by which an application for amendment is rejected shows that the learned District Judge has considered the documentary evidence on record and has come to the conclusion that there is nothing on record to KBP 3916-09.sxw 3 show that the suit premises are situated on land bearing survey No.42 B/2 which is the subject mater of deed of partition relied upon in the application for amendment. Considering the documents placed on record, there is no error in the view taken by the learned judge. As far as second part of the amendment is concerned, absolutely no reason is recorded in the application for amendment as to why said stand was not taken in the suit which was pending from year 2001 and which was decided in year 2007. Therefore, no case is made out in this writ petition under Article 227 of the Constitution of India to interfere with the impugned order. 4] Writ Petition is rejected. All contentions of the parties in the pending appeal are expressly kept open. ( A.S.OKA, J. )