1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Chamber Summons No.586 of 2007 In Suit No.437 of 1987 Tukaram Hari Shelar .. .. Plaintiff V/s. Jagannath Govindrao Joshi & ors. .. Defendants A n d M/s.Kothari Builders Pvt. Ltd. .. Respondents Mr.Prashant More with Mr.S.R. Mishra for Plaintiff. Ms.Manasi Joshi i/by S.U. Deshmukh for Respondents. Ms.Seema Sarnaik for Defendant Nos.1 to 8. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 17 th December 2008 P.C. : 1. The Plaintiff has taken out this Chamber Summons for amendment of the Plaint. The Suit, as filed, showed that the Plaintiff was seized and possessed of the immovable property described in paragraph 1 of the Plaint (the suit property). The Plaint shows that Defendants 1 to 6 have allegedly claimed title to the suit property, whereas the Plaintiff is the owner of the suit property being in uninterrupted possession of the suit property for more than 45 years adverse to the 2 interest of Defendants 1 to 6. The Plaintiff, therefore, in essence, claims a title by prescription. 2. The Plaint shows a sanad issued to the predecessor- in-title of Defendants 1 to 6 on 26.4.2006. Paragraph 9 of the Plaint mentions about an Indenture of Lease dated 29.4.1965 executed by Defendants 1 to 6 in favour of Defendants 7 to 8. The Plaintiff has claimed in the Plaint that Defendants 1 to 6, as the owners, had no right, and/or authority to create the lease in respect of the suit property. 3. In paragraph 11 of the Plaint, the Plaintiff has averred about the Agreement for sale dated 21.10.1984 executed by the Plaintiff in favour of one Mohammed Umar Ramzan Kha Khilji, partner of M/s.Kothari Builders Pvt. Ltd. and a conveyance already executed in favour of M/s.Kothari Builders Pvt. Ltd., the nominee of M/s.Kothari Builders Pvt. Ltd. 4. Upon the submission that the Plaintiff was in possession of the suit property as the owner, the Plaintiff prayed for the relief of declaration that the Lease Deed dated 26.4.1965 was null and void and for injunctions against the Defendants from entering upon and interfering with the Plaintiff's possession and developing the suit property by utilizing the 3 FSI, getting the plans sanctioned in respect of the suit property or otherwise interfering with the Plaintiff's possession. 5. In this Chamber Summons, the Plaintiff seeks to contend, by way of amendments to the Plaint, that pursuant to the registered Deed of Conveyance dated 3.2.1986, the Plaintiff sold the right, title and interest in the suit property to M/s.Kothari Builders Pvt. Ltd. who are in possession of the suit property as owners thereof. The Plaintiff, therefore, claims a declaration that he is the absolute owner of the suit property. Consequently, two prayers are sought to be added – (1) for declaration of ownership consequent upon being in adverse possession of the suit property for a period of more than 12 years and (2) an injunction restraining the Defendants from disturbing his lawful possession. 6. Since the conveyance is executed in favour of M/s.Kothari Builders Pvt. Ltd., they are joined as Respondents to be made party Defendants as Defendant No.10. The reliefs are now claimed against all the Defendants, including Defendant No.10. 7. Defendants 1 to 6 have opposed the Chamber Summons. Ms.Sarnaik on their behalf argued that the amendments 4 cannot be allowed for two reasons – (1) that they introduce a new case and (2) that the defects in the Plaint cannot be remedied by way of amendments. 8. It may be mentioned that the Suit has been filed on 17.1.1987. The conveyance in favour of the Respondents is dated 3.2.1987, barely fortnight after filing of the Suit. It is a subsequent event which is required to be stated as such. In fact it is surprising that paragraph 11 of the Plaint makes a reference to not only the Agreement for sale in favour of the purchaser of the suit property but also of conveyance in favour of the Respondents. 9. The entire Plaint proceeds on a footing that the Plaintiff is in possession adverse to Defendants 1 to 6 who are shown to be the owners by virtue of the sanad granted to them, as far back as on 26.4.1906. Hence the initial Plaint itself is seen to have proceeded showing not only the Plaintiff's possession and the consequent claim for the title by prescription but also the Plaintiff's act of transferring the suit property in his capacity as owner ultimately to the Respondents. The Plaintiff however did not pray for declaration of the title by prescription. In fact, various reliefs of injunctions prayed for in the Plaint specially under prayer (b) relate to the injunction required against interference of the Plaintiff's 5 possession which is the same as an injunction against disturbing the Plaintiff's lawful possession. 10. It is seen that the Plaintiff has averred the facts about his possession, the extent of his possession and the consequent title by prescription in the original Plaint itself. The Plaintiff has also shown the ownership of the suit property in Defendants 1 to 6 in paragraph 4 of the Plaint by virtue of the sanad mentioned therein. The Plaintiff's claim of adverse possession is, therefore, in order. Only the declaration of such adverse possession has not been claimed in the original Plaint. The Plaintiff claims that the declaration with regard to the transfer by way of the Deed of Lease is sought to be made by Defendants 1 to 6 in favour of Defendants 7 and 8. This also proceeds on the footing that the Plaintiff has title to the suit property. That title is by prescription. 11. The Plaintiff has claimed each relief of injunction as would naturally flow from his claim of title. This includes the reliefs against interference of his possession or disturbing his possession. 12. At best, the Plaint was defective – it not having shown the relief of declaration of the Plaintiff's title. The Plaintiff has sought to remedy that defect. The amendment shows the 6 subsequent event and the submission relating to the ownership of the suit property. The amendment essentially adds the prayer of the declaration of title. The prayer of injunction is essentially as contained in prayer (b) of the Plaint itself. 13.It has been held in Pankaja & anr. vs. Yellappa (D) by L.Rs. & ors., AIR 2004 SC 4102 that in a Suit for permanent injunction for restraining the Defendant from interfering with the Plaintiff's possession, (as is prayer (b) in this Suit), the Plaintiff can add a new relief seeking declaration of title. It has been observed in that judgment that when factual details as regards title were already mentioned in the Plaint, it cannot be said that by amendment a new relief was being claimed. The contention that the new relief was claimed by way of amendment was negatived in view of the averments in the original Plaint. Hence the addition of the relief of declaration of title was allowed. 14. In case of C.M. Vareekutty vs. C.M. Mathukutty, (1980) 1 Supreme Court Cases 537 , it has been held that a mistake in the Plaint, which is not drafted correctly or properly, can be remedied by way of amendment. In that case all the properties were not fully and correctly described in the original Plaint. In the new schedule fuller and correct 7 particulars of the properties were allowed to be given. 15. Similarly in the matter of Abani Kanta Pal, AIR 1986 Calcutta 143, D.B., it was held that if the Plaint is not a void Plaint but is a defective one, amendment may be made for the purpose of curing or removing the defect. 16. In this case, the averments with regard to the Plaintiff's possession and consequent title as well as the submission that Defendants 1 to 6 had no right to create the lease in favour of Defendants 7 and 8 as the Plaintiff claimed title to the suit property are enough facts to allow the Plaintiff the additional prayer of declaration of his title. It is for the Plaintiff to prove his title by adverse possession to be entitled to the relief but the Plaintiff cannot be disallowed from proving his title. Similarly the initial averment with regard to the Plaintiff's own transfer in favour of the Respondents is shown in the Plaint itself which fact is sought to be again brought out in the amendment for claiming the relief also against the Respondents herein. 17. Consequently, the amendments need to be allowed. The Chamber Summons is made absolute in terms of prayer (a). No order as to costs. 8 18. The Plaintiff shall carry out amendments within 6 weeks in the Plaint. The Plaintiff shall also amend the copy of the Plaint served upon all the Defendants as also the Respondents. However, the Plaintiff shall not carry out amendments until 15 th January 2009. (SMT.ROSHAN DALVI, J.)