Ramchandra Sakharam Mahajan vs Damodar Trimbak Tanksale (D) & Ors

2. According to the plaintiff, the suit property was blocked in new khasra no.327 and recovery of possession was sought in respect of 73 cents in the north-western corner of the said khasra. The case of the plaintiff is that new khasra no.327 along with khasra nos.329, 330 and 331 out of Mouza Sitabuldi, Circle No.19/27, Division No.8 at District Nagpur belonged to a Muslim family and the property was granted on lease to Balwantrao Mahajan, a predecessor-in-interest of the plaintiff. The lease deed executed in that behalf was dated 21.7.1875. The predecessors of the plaintiff had permitted the predecessors of defendants 1 to 9 to occupy a portion of the leasehold property on licence. While in such occupation, defendants 1 to 9 had demolished the structure that had been originally put up for residence in the property and were attempting to raise a commercial construction therein and to exploit the property commercially. Defendants 1 to 9 were not entitled to do so and the plaintiff was entitled to recover possession on the strength of his title. The plaintiff had pleaded that there had been a partition between him and defendants 10 to 13, but the subject matter of the suit was not divided and consequently it continued under the joint title of the plaintiff and defendants 10 to 13. Defendants 10 to 13 did not support the case of the plaintiff. For reasons of their own they purported to disown any title in the suit property. According to the plaintiff, they had been got at by defendants 1 to 9.

14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.

16. But we cannot ignore the fact that the plaintiff had not been diligent in prosecuting the suit in a proper manner. We, therefore, think that he should be put on terms. We, therefore, direct the plaintiff to deposit in the trial Court as costs thrown away, a sum of Rs.15,000/- within a period of two months from this date. If such an amount is deposited, the same would be disbursed unconditionally to defendants 1 to 9.

17. In the result this appeal is allowed, the judgments and decrees of the courts below are set aside and the suit is remanded to the trial Court for a fresh trial and disposal in accordance with law and in the light of the observations made above. Since defendants 1 to 9 have not pursued their counter claim covered by their cross-objections in the High Court, the rejection of their counter claim would stand confirmed and it would not be necessary for the trial Court to consider the counter claim afresh. The parties are directed to suffer their respective costs in this Court. The parties will appear before the trial Court to receive further orders as to posting on 10.9.2007.