1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 86/2003 Deoman (dead) Abhimannu Chirkut Dorle & Ors. ..vs.. Jainabai wd/o Vithobaji Bhoyar and others -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- Mr. Muley, Advocate for the appellants. Mr. Kilor, Advocate for respondent nos. 1 to 3. CORAM: C. L. PANGARKAR, J. DATED : 7 th OCTOBER, 2008 1. Heard. 2. This second appeal is by the original defendant. The plaintiffs/respondents had instituted a suit for partition and separate possession in the suit property. It was the contention of the plaintiffs that the suit property was purchased by their father Vithobaji along with his brother Chirkut, who is father of the appellant/defendant no. 1. 3. The Courts below found concurrently that the suit property was purchased by Vithobaji and Chirkut jointly. The plaintiffs contended that till the time Chirkut was alive they were being given share in the crop by Chirkut and even after 2 his death in the year 1982, share in the crop was given by the defendants for a period of one year. The Courts below found that the plaintiffs had 1/2 share in the suit property since it was purchased jointly by Vithobaji and Chirkut. The Courts below also found that the suit as instituted by the plaintiffs was not barred by limitation. The suit was decreed by the trial Court, which decree was confirmed by the first appellate Court. 4. The learned counsel appearing for the defendants contends that the amendment, that was allowed by the Court below adding prayer for possession of the partition and separate possession of 1/2 share of the plaintiffs, was not proper inasmuch as the Court has allowed a time barred claim. He relied on a reported judgment in Pirgonda Hongonda Patil ..vs.. Kalgonda Shidgonda Patil and others; AIR 1957 S.C. 363 wherein Their Lordships have held that the Court should not allow an amendment, which takes away the right accrued to a party by lapse of time. He 3 submits that this amendment was sought by the plaintiffs to the plaint in the year 1995 and in the year 1995 the claim of the plaintiffs became barred by limitation inasmuch as since 1983 no share in the crop was given and it was specifically denied. The submission of the learned counsel is not correct and it cannot be accepted. The Court should always look into the entire contents of the plaint and what the plaintiff intended to. Simply because there was no specific prayer for delivery of possession in the words in which it ought to have been included, the plaintiffs' claim for possession could not be rejected as barred by limitation. Particularly in this case it could not be rejected because of the fact that in the plaint the plaintiffs have given particulars of the claim. First claim is in respect of the declaration that the plaintiffs have 1/2 share in this property described in para 1 of the plaint. The second is in respect of the possession of plaintiffs 1/2 share in the suit field and the third is damages of Rs. 18,000/-. From para 7 of the plaint, it is clear that the plaintiffs did want partition 4 and separate possession of the said property. When the suit was filed, there was a specific claim for possession of the separate half share in the suit property. It cannot, thereafter, be said that when the additional prayer was made by the plaintiffs in the year 1995, the claim of the plaintiffs was barred by limitation. The additional prayer as made by the plaintiffs was, therefore, rightly allowed and the amendment was rightly allowed by the Court. 5. The learned counsel for the appellants contended that the suit property was purchased in the year 1924 and Vithobaji, one of the co-owners, died in the year 1960. According to the learned counsel for the appellants, the suit, therefore, should have been instituted by all the heirs of the plaintiffs within 12 years from 1960. This submission has no force for the simple reason that until 1983, the defendants had never denied the right of the plaintiffs to have half share in the suit property. The time, therefore, never began to run against the plaintiff until 1983. 5 6. The third ground, that was urged by the learned counsel for the appellants, is that the defendant nos. 3 and 4 were proceeded ex parte in the suit and, thereafter, the amendment was allowed. According to the amended provisions of the Code of Civil Procedure, notice should have been given to these respondents/defendants no. 3 and 4. That notice having not been given, according to him, the decree is a nullity. This submission has also no force because of the fact that defendant nos. 3 and 4 have not preferred this appeal before this Court and did not challenge the decree as was passed even before the District Judge. 7. In view of this, I find that no substantial questions of law is involved in the matter. The Courts below were right in decreeing the suit. The appeal is, therefore, dismissed in limine. JUDGE kahale