(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 945 OF 2011 Arvind s/o. Pundlik Dhamane, Through its President, Age : 55 years, Occupation : Business, .. Petitioner R/o. Vijay Colony, Ajabnagar, (Original defendant District : Aurangabad. no.1) versus 1. Wahed Khan s/o. Shahanoor Khan, Age : 64 years, Occupation : Agriculture, R/o. Shahanoorwadi, Aurangabad. 2. Jaffar Khan s/o. Wahed Khan, Age : 46 years, Occupation : Agriculture, R/o. Shahanoorwadi, Aurangabad. 3. Taher Khan s/o. Wahed Khan, Age : 48 years, Occupation : Agriculture, R/o. Old Osmanpura, Aurangabad. 4. Sher Khan s/o. Wahed Khan, Age : 44 years, Occupation : Agriculture, R/o. Old Osmanpura, Aurangabad. (2) 5. Firoz Khan s/o. Wahed Khan, Age : 39 years, Occupation : Agriculture, R/o. Old Osmanpura, Aurangabad. 6. Shahanawas Khan s/o. Wahed Khan, Age : 34 years, Occupation : Agriculture, R/o. Old Osmanpura, Aurangabad. 7. Amjat Khan s/o. Wahed Khan, Age : 31 years, Occupation : Agriculture, R/o. Old Osmanpura, Aurangabad. .. Respondents. ....................... Mr. L.D. Vakil, Advocate, for the petitioner. Mr. P.N. Sonpethkar, Advocate, for respondent no.1. Respondent nos.2 to 7 served (Absent). ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 18TH APRIL 2011 (3) COURT'S ORDER : 1. Heard Adv. Mr. L.D. Vakil, for the petitioner, and Adv. Mr. P.N. Sonpethkar, for respondent no.1 / original plaintiff. 2. None for respondent nos.2 to 7 i.e. original defendant nos.2 to 7 though duly served. 3. The petitioner has challenged the order dated 1-12-2010, passed by the learned Joint Civil Judge (Junior Division), 3rd Court, Aurangabad, below Exhibit 33 in Regular Civil Suit No. 927/2002, thereby allowing the application filed by respondent no.1 / plaintiff seeking amendment in plaint under Order VI Rule 17 of CPC. 4. Adv. Mr. L.D. Vakil, for the petitioner, contends that declaration about the sale deeds, as also, about ownership now sought to be added are the reliefs barred by limitation. According to him, necessity of such relief was expressly pointed out in his written statement by the petitioner and inspite of that objection, no steps were taken within limitation. He, therefore, states that a time barred amendment has been allowed which changes nature of suit and these aspects are not looked into. He relies upon judgment of Hon. Apex Court reported at 2009 AIR (4) SCW 6644, in the case of M/s. Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons and others, particularly paragraph 67, to point out to this court, the factors which must be weighed before permitting such amendment. 5. Adv. Mr. P.N. Sonpethkar, for respondent no.1 / original plaintiff, on the other hand, invites attention to plaint allegations to urge that the contentions were already raised before the trial court and only proper prayer was to be made. He states that as respondent no.1 is still in possession, the question of limitation does not arise. According to him, there is no question of change in nature of suit also. 6. Perusal of judgment of Hon. Apex Court in the case of M/s. Revajeetu Builders and Developers Vs. M/s. Narayanaswamy and Sons and others (supra), clearly shows that if on the date of moving of amendment application, a fresh suit for that prayer is barred by limitation, the amendment cannot be allowed. Here, paragraphs 7 and 8 of the plaint show contention that his sons, namely, defendant nos.1 and 2 have attempted to cheat respondent no.1 / plaintiff and executed sale deeds though there was no partition and he had not made any sub-division or demarcation in his property. It is expressly pleaded that those sale deeds are illegal, bogus and void. The mutation entries (5) obtained on the basis of those documents are also stated to be bogus and illegal. 7. In this background, it is further urged that in September 2002, those defendants along with unknown persons entered into suit land when respondent no.1 / plaintiff was doing his agricultural work and they tried to destroy standing crop. In view of this, he made enquiries and learnt about the sale deeds, etc. Because of these pleadings, prayer is made to restrain the defendants from interfering, alienating or any way obstructing into peaceful possession and enjoyment of respondent no.1 / plaintiff. The wording in the prayer clause need to be interpreted liberally and so interpreted, it is apparent that the relief is being claimed because of his existing ownership and because of assertion of absence of any right or title in favour of original defendants. Through this amendment, expressly relief is sought to be incorporated in the plaint. By allowing such amendment, the nature of suit does not undergo any change. 8. In view of the above discussion, it is apparent that it cannot be said that the respondent no.1 / plaintiff has / had given up those reliefs. 9. The question, whether the amendment is barred by (6) limitation or not, is not gone into by the trial court. I, therefore, do not find it necessary to comment upon it. The objection about the same can be raised by the petitioner / defendant appropriately before the trial court and the same can be looked into by the trial court. 10. With these observations, the petition is dismissed. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/945wp