1 WP 7182.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7182 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. S.G.Dodya, Advocate for the petitioner. ................................ CORAM : S.V. GANGAPURWALA, J. DATE :19/09/2011 PER COURT : 1. The petitioner is the original plaintiff, who had filed Suit for partition and separate possession. During the pendency of the Suit, the defendant filed an application for amendment, which was rejected. Thereafter, filed an application for framing additional issue of adverse possession. The trial Court allowed the said application and framed an issue about the defendant acquiring title by adverse possession. The same is assailed in the present Writ Petition. 2. Mr. Dodya, the learned counsel for the petitioner submits that if the Written Statement is perused, the defendant has no where taken a plea of adverse possession. 2 WP 7182.2011 Even an application for amendment moved by the defendant for introduction of the plea of adverse possession is rejected. The learned counsel further contends that the defendant claimed ownership as a transferee from the original owner. The plea of transferee from the original owner and adverse possession can not go hand in hand and if the defendant has taken a plea of transferee from the original owner, he is dis entitled to claim title on the basis of adverse possession. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Arundhati Mishra ( Smt) V/s Sri Ram Charitra Pandey reported in ( 1994 ) 2 Supreme Court Cases – 29. 3. The order impugned in the present petition is with regard to the framing of additional issue. The issues are to be framed on the basis of the facts averred in the plaint and denied in the Written Statement, so also pursuant to the pleadings between the parties. The defendant in para no. 4 in his Written Statement has made following pleadings, “ The defendant no. 4 is in possession of the land adm. 2 H. from the suit land since February, 1995 till this date without any objection, interference as a owner and possession and his name has been recorded as owner and in cultivation column to the knowledge of all the concern ”. 4. The said pleading would tantamount to a plea of 3 WP 7182.2011 adverse possession as contemplated in Article 65 of the Limitation Act. 5. Be that as it may. I am not concerned with the proof of the plea raised by the defendant. The only grievance in the present petition is about framing of additional issue and as the pleading to that effect appears in the Written Statement, there is no illegality committed by the trial Court in framing the additional issue. 6. Whether the defendant is entitled to raise additional plea acquiring title by adverse possession in the wake of pleading as a transferee from the original owner, is a matter which would be decided by the trial Court at the time of final decision. It would be premature to give any finding on the same. The Judgment of the Apex Court in the case of Arundhati Mishra referred supra is in respect of allowing a plea to be raised by way of an amendment. The same would not be relevant while determining an application for framing of additional issue. 7. In light of the above, the Writ Petition is dismissed. No costs. 8. At this stage, Mr. Dodya, the learned counsel submits that the Examination-in-Chief has been filed in the year 2009 and still the matter has not been proceeded. Taking into account the nature of the dispute, the trial Court shall 4 WP 7182.2011 dispose of the said Suit as expeditiously as possible and preferably within the period of nine ( 9 ) months from today. [ S.V. GANGAPURWALA, J.] KNP/WP 7182.2011 5 WP 7182.2011