1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.906 OF 2001 WITH CIVIL APPLICATION NO.1070 OF 2001 Pandurang Yashwant Pawar & Ors. .... Appellants Vs. Shri Tanaji Ramchandra Navadkar .... Respondents & Ors. Mr.Sandesh D. Patil, Advocate for appellants. Mr. T.S. Ingale, Advocate for respondents no.1 to 3. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 23rd November, 2009 P.C. 1. This Second Appeal arises out of the judgment and order dated 9th October 2009, by which the District Court, Sangli dismissed the appeal preferred by the appellants, who are original defendants no.1 to 3. The trial Court by its judgment and order dated 7th December 1999 has decreed the suit filed by respondents and declared that the original plaintiffs are entitled to rectification of the agreement (Exhibit 174) as regards location of the well. The agreement refers to gat No.385 as the land where well is situate, whereas it is actually situate at gat no.382. The Court also declared that the original plaintiffs are entitled to use of the well and pipeline over the same and permanently restrained the appellants from obstructing original plaintiffs from use of the well and pipeline at land at gat no.382. 2 2. Mr. Patil, the learned counsel for the appellants submits that the concurrent findings of both the Courts below as regards the deed at Exhibit 174 and use of the well by the original plaintiffs are incorrect. He also submits that both the Courts below could not have permitted rectification of the agreement in the absence of any pleadings of the facts required for rectification under Section 26 of Specific Reliefs Act. Mr. Patil relied upon the decision of the Supreme Court in State of Karnataka and another vs. K.K. Mohandas & Others, reported in (2007) 6 Supreme Court Cases 484. Wherein the Apex Court has held that in the absence of any foundation in the pleadings being laid by the plaintiffs establishing a ground for the grant of the relief of rectification, the mere adding of a prayer by way of an amendment could not be considered sufficient to grant them the relief of the rectification.” 3. Mr.Patil submits that the relief of rectification was sought by the original plaintiffs by amending the plaint to insert the prayer for rectification therein. However, no amendment of body of the plaint was sought to include averments in the plaint to support the relief of rectification. Therefore, according to him, the Courts could not have granted the relief of rectification. Perusal of the plaint shows that though the plaint does not in terms, state that there is a mistake in the deed at Exhibit 174, the facts pleaded in paragraph 3 of the plaint are sufficient to form a foundation for the prayer. It has been alleged therein 3 that at the time of the agreement, the revenue records noted that the well was in gat no.385. However, Dattatray, the predecessor of the appellants made an application for mutation in the revenue records to show that the well is situate not in gat no.385 but in gat no.382. This application was made behind the back of the original plaintiffs. These facts have not been denied by the appellants in their written statement. It is also the case of the original plaintiffs and their evidence that since execution of the deed at Exhibit 174, they have in fact drawn water from the well, to cultivate their land. It is the appellants own case in their written statement is that there exists only one well which according to them is at gat no.382. It is their specific case in the written statement is that the well they were trying to dig in survey no.385 was never completed and the well was in fact subsequently filled in. This would mean that it is the appellants own case in their written statement that their existence one well at site. Since there exists only one well at site and the original plaintiffs have been drawing water therefrom for all these years, both the courts below were justified in granting the reliefs sought by the original plaintiffs. It cannot be said that there is no foundation laid in the plaint for the relief of rectification sought by the original plaintiffs. 4. There are concurrent findings of facts and law which do not require any interference in the opinion of this Court. There is no substantial questions of law falling for consideration of the 4 Court. Hence, the Second Appeal is dismissed. 5. In view of dismissal of the Second Appeal, the Civil Application No.1070 of 2001 does not survive, the same is accordingly dismissed. (SMT.R.P. SONDURBALDOTA,J)