1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3499 OF 2009 Deokiben w/o Kanhayalal Shah, (Died) through legal representatives. 1. Sharadchandra s/o Kanhyalal Shah, Age 58 years, Occ.Business, r/o House No.3-14-25, Pandariba Road, Aurangabad. 2. Mrs.Gunwanti w/o Kanakchandra Shah, Age 47 years, Occ. Household affairs, R/o. H.No.172-D, Kamlanagar, New Delhi 110 007. 3. Sharadadevi w/o Bansilal Shah, Age yrs. Occ. Household affairs, r/o.House No.3-14-25, Pandariba Road, Aurangabad. ( DIED) 4. Rajesh s/o Bansilal Shah, Age 28 yrs. Occ. Advocate, r/o. House No.3-14-25, Pandariba Road, Aurangabad. 5. Chandrakalaben w/o Ramniklal Shah, Age 50 yrs. Occ.Household affairs, r/o. Pandariba Road, Aurangabad. 6. Mayur s/o Ramniklal Shah, Age 24 yrs. Occ. Business, r/o. Pandariba Road, Aurangabad. 7. Chetan s/o Ramniklal Shah, Age. 22 yrs. Occ. Business, r/o. Pandariba Road, Aurangabad. 2 8. Mrs.Shaifali w/o Brijpal Shah, Age 33 yrs. Occ. Household, R/o Bhairavnath, Varanasi, Uttar Pradesh, Through their duly constituted G.P.A. Plaintiff No.2 Sharadchandra s/o Kanhayalal Shah. ...PETITIONERS VERSUS 1. Dinanath s/o Ramprasad Tivari, Age 65 yrs. Occ. Nil, r/o Thakurdas Girni Berun Jafer Gate, Mondha, Aurangabad. 2. Secretary, Marathwada Wakf Board, Near Panchakki, Aurangabad. ...RESPONDENTS ... Mr.D.K.Kulkarni, Adv., for the petitioner. Mr D.E.Padwale, Adv., for respondent no.1. ... WITH WRIT PETITION NO.3523 OF 2009 Deokiben w/o Kanhayalal Shah (Died) through legal representatives, 1. Sharadchandra s/o Kanhyalal Shah, Age 58 years, Occ. Business, r/o.House No.3-14-25, Pandariba Road, Aurangabad. 3 2. Mrs. Gunwanti w/o Kanakchandra Shah, Age 47 years, Occ. Household affairs, r/o. H.No.172-D, Kamlanagar, New Delhi 110 007. 3. Sharadadevi w/o Bansilal Shah, Age yrs., Occ. Household affairs, r/o. House No.3-14-25, Pandariba Road, Aurangabad (DIED) 4. Rajesh s/o Bansilal Shah, Age 28 yrs. Occ. Advocate, r/o. House No.3-14-25, Pandariba Road, Aurangabad. 5. Chandrakalaben w/o Ramniklal Shah, Age 50 yrs., Occ. Household affairs, r/o Pandariba Road, Aurangabad. 6. Mayur s/o Ramniklal Shah, Age 24 yrs. Occ. Business, r/o Pandariba Road, Aurangabad. 7. Chetan s/o Ramniklal Shah, Age 22 yrs. Occ. Business, r/o Pandariba Road, Aurangabad. 8. Mrs.Shaifali w/o Brijpal Shah, Age 33 yrs. Occ. Occ.household, r/o Bhairavnath, Varanasi, Uttar Pradesh, Through their duly constituted G.P.A.Plaintiff No.2 Sharadchandra s/o Kanhayalal Shah. ...PETITIONERS VERSUS 1. Dinanath s/o Ramprasad Tivari, Age 65 yrs. Occ. Nil, r/o Thakurdas Girni Berun Jafar Gate, Mondha, Aurangabad. 4 2. Secretary, Marathwada Wakf Board, Near Panchakki, Aurangabad. ...RESPONDENTS ... Mr.D.K.Kulkarni, Adv., for the petitioner. Mr.D.E.Padwale, Adv., for respondent no.1. ... CORAM: K.U.CHANDIWAL, J. DATE: 19/10/2010 *** COURT'S ORDER : 1. Heard. Rule was issued on 7th Sept., 2009. Interim relief earlier granted was directed to be extended till final decision of the petition. 2. The controversy centers to grant of amendment in terms of Order 6 Rule 17 of C.P.C. in the written statement in two suits. The petitioner has questioned permitting such amendment on several counts. 3. It was a suit for possession of a portion of land survey No.37 Mondha, Jafar Gate, Aurangabad, and also seeking mesne profits. The defendant set up a plea of ownership and his - un-interrupted possession over the property for 40 years. He also informed that he had constructed house which itself was of more than 5 30 years old. By way of amendment, the defendant desired to raise the plea and setting up of adverse possession. Alternatively, the defendant also desired to produce certain documents which were, according to him, of 1962 which indicate enjoyment of the defendant uninterruptedly to the knowledge of the plaintiff as owner. 4. The learned Judge though noticed that the written statement was filed in the year 1997 and after 12 years the amendment is sought in 2009, though caused embarrassment to the plaintiff, however, indicated it would not cause prejudice to plaintiff. This surmise of the learned Judge is encountering the legal position. The facets of allowing amendment in terms of Order 6 Rule 17 of C.P.C. consists of two parts; the first covers right to a Court to permit such amendment at any stage of the proceeding allowing either party to make his pleadings and the second part contemplate that such amendment to be allowed for the purposes of determining real controversies raised between the parties. 5. The legal position, again, for amending a plaint and a written statement is also distinct. The basic fact, in the present matter, needs attention. The amendment proposed, as is indicated in the application, is 6 reproduced hereinbelow: "6(A) The defendant submits that the available record with him is showing that he is the possessor of the suit property at least since 1962 which is clear from the judgment of the Criminal Case No. 1163/1962 decided by the J.M.F.C. at Aurangabad. This judgment establishes the long standing possession which is dated 30.3.1962. Further the City Survey Enquiry was conducted in the year 1970-71 thereby the name of the defendant is recorded in the City Survey Record as owner and possessor of the suit property. Not only this the Sannad is also issued in the name of the defendant under the provision of Maharashtra Land Revenue Code, this sannad is the final and conclusive proof of the title. Apart from this there is also the Judgment of the Collector, Aurangabad dated 24.12.1970 with reference to the requirement of the Wire Fencing Permission. This also shows the possession and enjoyment of the property by the defendant exclusive. It may be further appreciated that there is a also order of non-agricultural assessment vide notice dated 30.12.1980 addressed to the defendant and further the takes have been paid by the defendant along with the Challan and the notice of the city Survey Enquiry. These documents point out that there was a total intention of enjoying the property as owner. " 6. There is no controversy that different pleas can be raised by the defendant. The purpose of the amendment and the time is of importance in the matter. The factual details sought, by way of amendment,with all said and 7 done, were to the knowledge of the defendant, no explanations are offered which can plausibly be entertained to accept such long drawn omission of 12 years. 7. It is not prejudice caused but there should be some time limit in the matter. The lis need not be encouraged in perpetuity as has been done in the present litigation. 8. Learned Judge did not consider that the nature of amendment sought in the written statement was not reflecting any subsequent development or the events having so transpired after filing of the written statement. The learned Judge also did not consider absence of explanation or reasoning as to why defendant enjoyed slumber for 12 years. In first part of the written statement, the defendant has denied title of the plaintiff over the suit property and, in the later part, defendant desires to raise a plea of adverse possession. The defendant has set up title to the property and denied title of the plaintiff. While by way of amendment, latently, by setting up a plea of adverse possession, title of the plaintiff is accepted. This exercise will certainly cause prejudice to the plaintiff. The order calls for interference. It is set aside. Both the writ petitions allowed. The 8 effect of amendment will be nullified. No costs. Rule made absolute accordingly. (K.U.CHANDIWAL) JUDGE agp/3499-09wpgr