Smt. Subhadrabai Tukaram Kate vs Mrs. Sindhu Bhaskar Dhote And Ors
- Court
- Bombay High Court
CNR No : HCBM010223002026
2026:BHC-AS:44047
Neeta Sawant
wp-11242 of 2018.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11242 OF 2018
WITH
INTERIM APPLICATION NO. 3631 OF 2026
Smt. Subhadrabai Tukaram Kate ...Petitioner
: Versus :
Mrs. Sindhu Bhaskar Dhote and others. ...Respondents
Mr. Surel Shah, Senior Advocate with Mr. Kishor Patil, Mr. Amol
Mhatre, Mr. Anish Kikle, Ms. Akshada Nargale & Mr. Sakshat Relekar, for
the Petitioner.
Mr. Anil Anturkar, Senior Advocate with Mr. Sandeep Phatak & Mr.
Adhik Kadam, for Respondent No. 2.
Mr. Nilesh Wable , for Respondent No. 5(a) to 5(j).
CORAM: SANDEEP V. MARNE, J.
RESERVED ON: 12 OCTOBER 2026.
PRONOUNCED ON: 28 OCTOBER 2026.
Judgment:
1) Petitioner has filed this Petition challenging the order dated
nd
23 April 2018 passed by the 2 Joint Civil Judge Senior Division Vadgaon
Maval, Pune rejecting the application for amendment of the plaint at
Exhibit 70 filed in Regular Civil Suit No. 85 of 1995.
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Plaintiffs filed Regular Civil Suit No. 85 of 1995 in the Court
2)
of Civil Judge Junior Division, Vadgon, Maval, Pune seeking a declaration
that they are the owners and possessors of the suit properties and
Defendants have no title therein. Alternatively, it is prayed that if the
suit properties are found to be in possession of the Defendants,
possession thereof shall be handed over to the Plaintiffs. In para-1 of the
plaint, the suit properties are described as agricultural lands bearing Gat
No. 583 and Gat No. 612 at Village-Karla, Taluka-Vadgaon-Maval,
District-Pune.
3) Defendant No.1 appeared in the Suit and filed Written
Statement. It appears that Plaintiff’s suit was dismissed for default by
order dated 10 February 2000. After about 9 long years, the suit came to
be restored on 30 September 2009. During the period the suit was
dismissed, several transactions relating to land bearing Gat No. 583 and
land bearing Gat No. 612 took place. After restoration of the Suit,
Plaintiffs took out application at Exhibit 44 on 26 February 2013 seeking
amendment of the suit for challenging sale-deed dated 26 December
2008 executed by Defendant Nos.1 and 3 in respect of the land bearing
Gat No. 583. The amendment was allowed and prayer clause c(1) is
incorporated in the Suit for setting up challenge to sale-deed dated 26
December 2008 qua land bearing Gat No.583.
4) Accordingly, Bharat Kantilal Agarwal, Harish Dhote and
Mahendra Kering were impleaded as Defendant Nos.2 to 4 in the suit for
challenging sale-deed dated 26 December 2008 qua Gat No. 583. Plaintiff
No.1 thereafter filed one more application for amendment on 27
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November 2017 for impleadment of Mr. Mahaverprasad Dangi and Mr.
Samit Agarwal as Defendant Nos.5 and 6 and for incorporating various
other averments in the plaint. By way of the proposed amendment
sought through an application dated 27 November 2017, the Plaintiff
No.1 sought to correct the description of the suit property in paragraph
1(b) by substituting Gat No. 602 for Gat No. 612 and by adding the words
“in respect of the Plaintiff’s ownership and possession of an area
admeasuring 1 hectare 04 R". Petitioner has also sought to challenge
various sale deeds and other documents such as agreement dated 31
March 2008, sale deed dated 26 December 2008, Power of Attorney dated
2 December 2006, sale-deed dated 15 December 2006, sale-deed dated 15
March 2007. Petitioner’s application for amendment was resisted by the
Defendants by filing reply. By order dated 23 April 2018, the Trial Court
has rejected the application for amendment at Exhibit-70. Aggrieved by
the order dated 23 April 2018, the Plaintiff No.1/ Petitioner has filed the
present petition, impleading Plaintiff No. 2 as Respondent No. 5.
5) Mr. Shah, the learned senior advocate appearing for the
Petitioner/Plaintiff No.1 submits that the Trial Court has erred in
rejecting the application for amendment. He submits that the suit
property described in paragraph 1(b) is erroneously referred to as Gat No.
612, whereas, in fact, the land in respect of which the parties claim rival
rights is Gat No. 602. That there is a typographical error in description of
the suit property in paragraph 1(b) and this inadvertent error is required
to be corrected by amending the plaint. He invites attention of the Court
to averments made in the Written Statement in which Defendant No.1
has claimed title by adverse possession in respect of land bearing Gat No.
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612. That Defendant No. 1 was clearly aware of the fact that she was
defending the suit qua the land bearing Gat No. 612 and not in respect of
the land bearing Gat No. 602. That the Trial Court has erroneously held
that Plaintiffs have field copy of 7/12 extract of land bearing gat No. 612
when in fact what is filed is 7/12 extract of land bearing Gat No. 602. He
submits that for the purpose of deciding the real question of controversy
between the parties, it is necessary that correct description of the suit
property is brought before the Court. That the amendment qua
correction in description of the suit property was formal in nature and
ought to have been allowed.
6) Mr. Shah submits that the Trial Court erred in holding that
the amended prayers seeking challenge to various sale-deeds are barred
by limitation. He submits that the Plaintiffs are not signatories to the
main instruments and therefore, the said instruments, having been
executed by persons who did not have ownership of the land, are void ab
initio and cannot affect Plaintiffs’ ownership in the suit properties. He
submits that the Plaintiffs have sought a declaration that the impugned
sale deeds are not binding on their respective shares and, therefore, the
limitation prescribed under Article 59 of the Limitation Act, 1963, is not
applicable. In support he relies on judgment of the Apex Court in Shanti
1
Devi (since deceased through Lrs) Versus. Jagan Devi and others .
Mr. Shah further submits that the Trial Court has grossly
7)
erred in applying Proviso to Order 6 Rule 17 of the Code of Civil
Procedure,1908 (Code) requiring establishment of due diligence
1
2025 SCC Online SC 1961
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ignoring the position that the suit has been instituted in the year 1995
i.e. before coming into effect of the CPC (Amendment) Act, 2002. Relying
on judgment of the Apex Court in State Bank of Hyderabad Versus.
2
Town Municipal Council , Mr. Shah submits that the Proviso to Order 6
Rule 17 of the Code cannot apply to the present suit. He submits that if
there is any delay in applying for amendment, the opposite party can
always be compensated by imposition of costs and in support he relies
on judgments of the Apex Court in Surendra Kumar Sharma Versus.
3 4
Makhan Singh and Sajjan Kumar Versus. Ram Kishan . Mr. Shah
further submits that if the proposed amendment is not allowed, it would
seriously impair the adjudication of the subject matter of the controversy
raised in the suit. He prays for setting aside the impugned order.
Mr. Anturkar, the learned senior advocate appearing for
8)
Respondents opposes the Petition submitting that the Trial Court has
rightly rejected Plaintiff's application for amendment. He submits that
change in description of suit property in paragraph 1(b) from Gat No.612
to Gat No.602 does not solve the problem since boundaries of Gat No.
612 are descried in the plaint. He invites attention of the Court to the
earlier application for amendment filed in the year 2013 where Plaintiffs
sought to incorporate challenge to the sale-deed dated 26 December
2008 by which land in Gat Nos. 583 and 602 are sold. However, Plaintiffs
consciously restricted their challenge to the sale-deed dated 26
December 2008 only in respect of land forming part of Gat No. 583. There
is deliberate omission by the Plaintiffs to challenge sale deed dated 26
2
(2007) 1 SCC 765
3
2009 10 SCC 626
4
(2005) 13 SCC 89
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December 2008 qua Gat No.602 knowing fully well that the same is not
the subject matter of the suit. It is therefore difficult to believe that there
is an inadvertent error in description of the suit property in paragraph 1
of the plaint.
Mr. Anturkar further submits that Petitioner's proposed
9)
prayers for challenging various documents is clearly barred by limitation.
That the ratio of the judgment of the Apex Court in Shanti Devi (supra)
does not apply to the present case as Plaintiffs are not declared to be the
owners of the suit properties. That the suit is filed for seeking
declaration of ownership. That, in any event, the Plaintiffs are not
restricting the prayers in the amendment application seeking a
declaration that the deeds do not bind their respective shares. On the
other hand, they have expressly challenged various deed thereby
attracting the period of limitation prescribed in Article 59 of the
Limitation Act. He therefore submits that the Trial Court has rightly
rejected Plaintiff No.1/ Petitioner's application for amendment. He prays
for dismissal of the application.
Rival contentions urged on behalf of the parties now fall for
10)
my consideration.
11) Plaintiffs have filed R.C.S. No. 85 of 1995 seeking declaration
of title and possession qua the suit properties. In the Plaint, they have
alleged that land bearing Survey No. 186, Hissa No.1A and Survey No.
186, Hissa No. 3 + 4 were collectively possessed by Rama Kate as tenants.
His son, Tukaram Kate started cultivating the land as tenants. It is
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pleaded that Tukaram Kate purchased the said lands under Section 32(g)
of Bombay Tenancy and Agricultural Lands Act, 1948 and his name was
mutated to the records of rights as owner thereof. Plaintiff No.1 is the
wife and Plaintiff No.2 is the sister of Tukaram Kate. It is alleged in the
plaint that land bearing Survey No. 186/1A and 186/3 + 4 are converted
into Gat Nos.583 and 612 after implementation of the Consolidation
Scheme. This is how suit is filed in respect of the land bearing Gat Nos.
583 and 612. The description of the suit properties in paragraph 1 of the
plaint is as under:
. : ,
१ मि ळकतीचेवर्ण न तुकडीपुर्णे पोटतुकडी ावळचेसबरजिस्टारसाहेबहद्दीतीलपुर्णे
जि ल्हापरिरषदेच्यावडगांवावळपंचायतसमितीच्याहद्दीतीलगांव ौेकाला येथमिनी
) . , .
अ गटनं ५८३यांसीक्षेत्र००हे१४आर आाररू ००रू५४पैसेयांसीचतुःजिस ा
पुढीलप्र ार्णे :-
- .
पुव6स गटनं ५८१
दक्षिक्षर्णेस - गटनं . ५८२
पक्षि9 ेस - गटनं . ५८४
उत्तरेस - गटनं . ८५
ब ) गटनं . ६१२यांसीक्षेत्र०५हे . ०७ . ४आर , आकाररू . १८रू१८पैसेयांसीचतृःजिस ा
पुढीलप्र ार्णे :-
पुव6स - गटनं . ६११
दक्षिक्षर्णेस - गटनं . ५८०
- .
पक्षि9 ेस गटनं ६१३
उत्तरेस - गटनं . ५८१
येर्णेप्र ार्णेचतृःजिसापुव कमिनी , हयांनायेथुनपुढेदावामि ळकतअसेसंबोधलेआहे . वत्या
.
दाव्याचामिवषयआहेत
12) According to Plaintiffs, Defendant got her name mutated in
respect of the suit properties in the year 1985 by mutation entry no. 3024
even though he had never purchased the suit properties from Tukaram
Kate. It is pleaded in the plaint that Tukaram Kate never sold the suit
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property to the Defendant, Sindhu Bhaskar Dhote, and that the
Defendant erroneously informed the Talathi that such sale had taken
place. Plaintiffs have claimed possession in respect of the suit properties.
This is how the suit is filed seeking a declaration of ownership and
possession in respect of the suit properties bearing Gat Nos. 583 and 612.
A positive declaration is sought that Defendant No.1 does not have any
right, title and interest in the suit property and an alternative prayer is
raised for possession in the event it is found that Defendant is in
possession of the suit properties.
Defendant No.1 appeared in the suit and filed Written
13)
Statement contending inter-alia that in the year 1972, Tukaram Kate sold
land bearing Survey Nos. 186/1A and 186/3 + 4 to the Defendant No.1
Alternatively, a plea of acquisition of title by adverse possession is also
raised in the Written Statement.
14) As observed above, the suit was dismissed for default by
order dated 10 February 2000 and the same appears to have been
restored 9 years later on 30 September 2009. This position is apparently
not disclosed in the memo of the Writ Petition. Plaintiff has also
amended the suit once by filing application at Exhibit 44 and this
position is again not disclosed in the petition. The first amendment
granted in the year 2013 is in respect of challenge to the sale deed dated
26 December 2008. After the 2013 amendment, the amended prayers in
the plaint read thus:
८ . तरीवादीचीविंवनतीकी -
अ . वादीहेदावामि ळकतीचेकायदेशीरालकवकब्ेदारअसल्याचेघोमिषतकरण्यातयावे .
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. .
ब दावामि ळकतीवरप्रक्षितवादीचाालकीहक्कनाहीअसेठरमिवण्यातयावे
क . दावामि ळकतीहयाप्रक्षितवादीचेताब्यातअसल्याचेजिसध्दझाल्यासप्रक्षितवादीनेवादीसदावा
मि .
ळकतीचाखुलावप्रत्यक्षताबादेण्याचाहुकू व्हावा
क१ . सदरीलदावामि ळकतीबाबतप्रक्षितवादीनं . १व३यांच्यातर्फे6 प्रक्षितवादीनं . ४यांनी
प्रक्षितवादीनं . २यांचेनांवेमिद . २६ / १२ / २००८ रो ीदावामिळकतीपैकीगटनं . ५८३बाबत
झालेलेखरेदीखतबेकायदेशीरअसुनतेवादीवरबंधनकारकनाही . असाठरावकरूनमि ळावा .
. . . .
ड दावामिवषयासअनुसरून ा कोटा नेयोग्यतेहुकू करावेत वडगांव ावळ
Apparently, only Plaintiff No.1 has filed second amendment
15)
application in the year 2017. This is apparent from the fact that only
name of Plaintiff No.1 appears in the title of amendment application at
Exhibit 70 and the same also bears the thumb impression of Plaintiff
No.1 only. Even the present petition is filed only by Plaintiff No.1.
Plaintiff No. 2 is impleaded in the present petition as Respondent No. 5
and it is not known whether Plaintiff No.2 is transposed as Defendant in
the suit. Be that as it may. By her application dated 27 November 2017,
the Petitioner/Plaintiff No.1 sought a comprehensive amendment to the
plaint. The first amendment sought is for impleadment of Defendant
Nos. 5 and 6 in the plaint. However, the proposed Defendants are not
impleaded in the present petition. The impleading parties in the petition
are original Defendant No.1, added Defendant Nos. 2 to 4 (by the 2013
amendment) and Plaintiff No.2-Vithabai Haribhai as Respondent No.5.
Thus, the parties who are sought to be impleaded by way of amendment
vide application at Exhibit 70 are not impleaded in the present petition.
This would be the first ground for rejection of the faulty petition as
prayer for addition of 2 parties cannot be decided without hearing them.
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The second amendment sought is in respect of the
16)
description of the suit property in paragraph 1(b) and the relevant
amendment sought reads thus:
) .
३ प्रस्तुतदाव्यातीलदावाकल १बयामिळकतीचेवर्ण नाध्येनरचुकीनेगटनं ६१२
असान ुदकरण्यातआलेलाआहे . सबबदावाकल १बधीलमिळकतीचेवर्ण नध्ये " गट
नं . ६१२ " हा कूरवगळून " गटनं . ६०२”असास ामिवष्टकरर्णेतयावा . तसेच " यांसीक्षेत्र
. . " .
०५हे ७ ४आर या कूरानंतर“पैकीवादीयांचेालकीववमिहवाटीचेक्षेत्र०१हे ०४
आरहीमि .
ळकत”असाकूरसामिवष्टकरर्णेतयावा
17) Thus, the Petitioner now seeks to amend the description of
the suit property in paragraph 1(b) by substituting Gat No. 602 for Gat
No. 612.
18) Thus, Plaintiff No.1 describes the reference to Gat No. 612 in
paragraph 1(b) as an inadvertent error. Ordinarily, this Court would have
accepted Plaintiff No.1 contention and would have permitted her to
amend the plaint to add correct description of the suit property.
However, there are multiple reasons why even this amendment cannot be
permitted at this stage.
19) Firstly , in paragraph 1(b) of the plaint, boundaries of Gat
No.612 are indicated. On the east side, Gat No.611 and on the west side,
Gat No. 613 are reflected in the boundaries. Thus, it clearly appears that
the boundaries in paragraph 1(b) of the plaint pertain to Gat No. 612 and
not to Gat No. 602. Thus, mentioning of Gat No. 612 does not appear to
be a typographical error but a conscious decision to incorporate land
bearing Gat No. 612 in the suit. Even in paragraph 3 of the plaint, it is
contended that land bearing Gat No. 186/3 + 4 was converted into Gat
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No. 612 under the Consolidation Scheme. This is the first reason why I
am not inclined to allow the amendment seeking to modify the
description of the land in paragraph 1(b) of the plaint, as no amendment
to the boundaries is sought.
20) Secondly and more importantly, Plaintiffs always believed
that the suit is filed in respect of Gat No. 612 and they never intended to
file the suit qua land bearing Gat No. 602. This is apparent from the fact
that the Sale Deed dated 26 December 2008 is executed by Defendant
Nos.1 and 4 in favour of Defendant No.2 in respect of two lands bearing
Gat Nos. 583 and 602. This is clear from description of the land
purchased by Sale Deed dated 26 December 2008 as under:
. आकार
अ क्र गटनं क्षेत्र चतुःजिस ा
पुव6 दक्षिक्षर्णे पक्षि9 े उत्तरे
१ ५८३ ००हे . १४आर ०
.
रू ५४
पैसे
गटनं५८४ गटनं६०० गटनं५७६ ुंबई - पुर्णे
रोड
२ ६०२ एकूर्णक्षेत्र ५ हे .
०७ . ०४आरपैकी
लिलहूनदेर्णारयांचेक्षेत्र
००हे . ७४आर
१८
रू .
१८पैसे
गटनं६०२
चाउव रिरत
भाग
गटनं६०२
चाउव रिरत
भाग
गटनं६०० गटनं५८४
21) Though the Sale Deed dated 26 December 2008 is in respect
of both the lands bearing Gat Nos. 583 and 602, while seeking
amendment to challenge the sale deed dated 26 December 2008, Plaintiff
consciously omitted to challenge the Sale-Deed qua land bearing Gat No.
602 and consciously restricted its challenge only to land bearing Gat No.
583. This is clear from paragraph 2 of the amendment application dated
26 February 2013 which reads thus:
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२ . सदरीलदाव्यातप्रक्षितवादीनं . . व . ४१ , धंदाव्यापार ,
२म्हर्णुनभरतकांतीलालअग्रवालव
. . . . ( .) . . ,
रा लोनावळाता ावळजि पुर्णेप्रक्षितवादीनं ३ हरीषभास्करघोटेव व ३५ धंदाव्यापार
रा . युरकॉलनीकोथरूडपुर्णे२९ ( ४ ) श्री . हेंद्रमिश्रीलकेरिंरगव . व . ५६ , धंदाव्यापाररा .
११५४ , सैपलेन , शॉपनं . २ , काई ाक6 ट , पुर्णे४११००१याप्र
ार्णेसदरीलदाव्यातदुरूस्ती
. 8
करूनप्रक्षितवादीम्हर्णुनसा ीलकरूनघेण्यातयावे तसेचदावाकल धील क१असे
लिलहुनत्यापुढेपुढील कुरलिलमिहण्यातयावा . सदरीलदावामि ळकतीबाबतप्रक्षितवादीनं . १व
३यांच्यातर्फे6 प्रक्षितवादोनं . ४यानीप्रक्षितवादीनं . २यांच्यानांवेमिद . २६ / १२ / २००८रो ीदावा
.
मि ळकतीपैकीगटनं ५८३बाबतझालेलेखरेदीखतबेकायदेशीरअसून तेवादीवर
बंधनकारकनाही . असाठरावकरूनमि ळावा .
(emphasis added)
22) Thus, Plaintiffs were conscious of the fact that since the
land bearing Gat No. 602 is not the subject matter of the suit, she/they
did not include challenge to the Sale Deed dated 26 December 2008 qua
Gat No. 602 in the amendment application. This is a reason why
amended prayer clause 8(c)(i) challenges Sale Deed dated 26 December
2008 only qua land bearing Gat No. 583. Thus, Plaintiff was conscious of
the fact that Gat No. 602 was not the subject matter of the suit and thus
it cannot be contended that there is any inadvertent error in not
including Gat No. 602 in description of the suit property.
23) As observed above, Plaintiff No.1 has suppressed the fact
that she amended the suit in 2013 in the memo of the present petition.
This fact has been brought on record by Respondent No. 2 along with the
affidavit-in-reply.
24) More curiously, though Sale Deed dated 26 December 2008
is already subject matter of challenge in prayer clause 8(c)(i), Plaintiff
No.1 has again sought amendment in the plaint for incorporation of
prayer clause 8(c)(4):
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८क ( ४ ) दावामि ळकतीबाबतप्रक्षितवादीनं . १ , ३ , ४यांनीप्रक्षितवादीनं .
२यांनालिलहूनमिदलेला
. / . / / .
बेकायदेशीरकरारना ादस्तनं १७९७ २००८मिद ३१ ०३ २००८वखरेदीखतदस्तक
५५८९ / २००८ , मिद . २६ / १२ / २००८हेदोन्हीहीदस्तबेकायदेशीर , पोकळीस्त , मिनरथ क
असूनतेरद्दकरर्णेतयावेत .
25) Thus, once again, the Sale Deed dated 26 December 2008 is
sought to be challenged, despite the fact that it is already subject matter
of challenge under prayer clause 8(c)(i).
26) Mr. Shah attempts to salvage the position by contending
that the amended prayer of 2013 restricted the challenge to the portion
of land sold out of Gat No. 583, whereas the challenge now extends to
the entire sale deed dated 26 December 2008. However, there is no such
averment in the entire application for amendment. The amendment
application does not make reference to 2013 amendment. It is nowhere
pleaded that Gat No. 602 was inadvertently not ignored in the 2013
amendment while challenging sale deed dated 26 December 2008. This
is yet another reason why this Court is not inclined to permit the
negligent Petitioner to alter description of the suit property in paragraph
1(b) of the Plaint.
27) Thirdly , if the list of documents filed along with the suit is
perused, what is included in Serial No.3 is ‘ गट न . ६१२ च्या ७ / १२ च्या झेरॉक्स
प्रत’ . Though Mr. Shah has sought to contended that what is actually filed
along with the suit is 7/12 extract of Gat No.602, the certified copy of list
of documents filed along with the documents appended thereto clearly
indicate that 7/12 extract of Gat No.612 is filed on record. The Petitioner
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has also placed on record a copy of the application dated 24 February
1994, filed by both the Plaintiffs before the Collector, seeking mutation
of their names. In the said application, Gat Nos. 583 and 612 are
specifically referred to, with a request for deletion of the name of Sindhu
Dhote and mutation of their names in its place. Following portion of
application dated 24 February 1994 makes it clear.
पुढे गटवारी यो ना लागु करण्यात येऊन गट नंवर ५८३ व गट नंवर ६१२ ला आ चे ऐव ी
सिंसधु भास्कर धोटे यांचे नांव कब् ेदार सदरी लावण्यात आलेले आहे . सबब या नोंदर्णी सिंसधु
भास्कर धोटे यांनी आ च्या ीनी हडप करण्याच्या हेतुने अशा नोंद करण्यात आल्या आहेत .
तरी या बेकायदेशिशर नोंद रद्दद करून तुकारा काटे याचे वारस म्हर्णुन गट नंबर ५८३ व गट
नंबर ६१२ ला कब् ेदार सदरी लावण्यात यावी ही मिवनंती .
28) Thus, even in the pre-suit correspondence, Petitioner has
referred to Gat No. 612 and not Gat No. 602. Thus, it is difficult to believe
that there is any inadvertent or typographical error in including Gat
No.612 in paragraph 1(b) of the plaint.
29) The fourth reason for disallowing the amendment to the
description of the suit property in paragraph 1(b) is creation of valuable
rights in favour of third parties in respect of land bearing Gat No. 602
during the pendency of the suit. Various third parties have purchased
different portions of land bearing Gat No. 602 by executing sale deeds,
having noticed that the said land was not the subject matter of any
pending suit. Apart from not including Gat No. 602 in the plaint, Plaintiff
No. 1 went a step further and made an unequivocal representation that
she was not interested in the land bearing Gat No. 602 by deliberately
omitting to challenge the Sale Deed dated 26 December 2008 in respect
of the said land. If, at this stage, the Petitioner is permitted to
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incorporate land bearing Gat No. 602 in the suit, the same would
fundamentally alter the nature of the suit and also affect the third
parties. Several innocent purchasers have purchased various portions of
land bearing Gat No.602 through various sale deeds. Plaintiff No.1
cannot now be permitted to include Gat No. 602 and thereby affect the
rights of various third parties at this distant point of time. She has been
extremely negligent in prosecuting the suit. When she noticed that the
sale deed dated 26 December 2008 has been executed in respect of land
bearing Gat Nos. 583 and 602, she consciously omitted land bearing Gat
No.602 in the amended prayer. Now she wants to turn around and raise a
plea that there is a typographical error in describing the suit property as
Gat No.612.
With regard to the proposed amendments concerning the
30)
challenge to various sale deeds, it is observed that the Plaintiffs have
sought to delete prayer clause 8(c)(1) and substitute it with a new prayer
clause 8(c)(1), as under:
८ ) प्रस्तुतदाव्यातीलमिवनंतीपरिरच्छेदनं . ८क ( १ ) धीलसंपूर्ण कूरकीकरर्णेतयेवून
त्याऐव ीखालीलमिवनंती८क ( १ ) म्हर्णूनस ामिवष्टकरर्णेतयावी .
" ८क ( १ ) प्रक्षितवादीनं . १व३यांनीप्रक्षितवादीनं . ४यांनादावामि
ळकतीबाबतलिलहूनमिदलेले
. / , . / / ,
कुल ुखत्यारपत्रदस्तनं ८६२० २००६ मिद २ १२ २००६हादस्तबेकायदेशीर
पोकळीस्त , मिनरथ कअसूनतोरद्दकरर्णेतयावा ."
) . ( ) ( )
९ प्रस्तुतदाव्यातीलमिवनंतीपरिरच्छेदनं ८क १ नंतर८क २ म्हर्णूनखालील कूर
स ामिवष्टकरर्णेतयावा .
" ८क ( २ ) दावामि ळकतीबाबतप्रक्षितवादीनं . १ , ३ , ४यांनीएक ेकांशीसंगनतकरूनो
. / . / / .
खरेदीखतदस्तक ५३२७ २००६मिद १५ १२ २००६रो ीप्रक्षितवादीनं ५यांनालिलहूनव
नोंदवूनमिदलेलाआहेतोबेकायदेशीर , पोकळीस्त , मिबनताबाअशास्वरूपाचाअसूनतोवादीचे
ालकीचे३०आरक्षेत्रापुरतारद्दकरर्णेतयावा ."
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) . ( ) ( )
१० प्रस्तुतदाव्यातीलमिवनंतीपरिरच्छेदनं ८क २ नंतर८क ३ म्हर्णूनखालील कूर
स ामिवष्टकरर्णेतयावा .
" ८क ( ३ ) प्रक्षितवादीनं . २वप्रक्षितवादीनं . ५यांनीएक ेकांशीसंगनतकरूनदावाकल १ब
. .
ध्येनुदकेलेल्यामिळकतीबाबतप्रक्षितवादीनं ६यांना ोतथाकशिथतखरेदीखतदस्तक
१३४० / २००७ , मिद . १५ / ३ / २००७अनव्येलिलहूनवनोंदवूनदेवूनअस्तिस्तत्वातआर्णलेला
आहेतोबेकायदेशीर , मिनरथ क , पोकळीस्तठरतअसूनतोवादीचे ालकीचेक्षेत्रावरबंधनकारक
."
राहर्णारानाहीअसाठरावकरर्णेतयावा
११ ) प्रस्तुतदाव्यातीलमिवनंतीपरिरच्छेदनं . ८क ( ३ ) नंतर८क ( ४ ) म्हर्णूनखालील कूर
.
स ामिवष्टकरर्णेतयावा
" ८क ( ४ ) " ८क ( ४ ) दावामि ळकतीबाबतप्रक्षितवादीनं . १ , ३ , ४यांनीप्रक्षितवादीनं . २यांना
ादस्तनं . १७९७ / २००८मिद . ३१ / ०३ / २००८व
लिलहूनमिदलेलाबेकायदेशीरकरारना
. / , . / / ,
खरेदीखतदस्तक ५५८९ २००८ मिद २६ १२ २००८हेदोन्हीहीदस्तबेकायदेशीर
पोकळीस्त , मिनरथ कअसूनतेरद्दकरर्णेतयावेत ."
( )
८क ५ दाव्याचाअंक्षित न्यायर्णिर्णयहाईपावेतोदावामिळकतीबाबतप्रक्षितवादीयांनीस्वतः
अथवात्यांचेनोकर , चाकर , कुल ुखत्यारधारक , अक्षिधकारधारकइ . यांनीकुठलाहीदस्त
अस्तिस्तत्वातआर्णूनयेअथवादावामि ळकतीधीलवादीयांचेताब्यासमिहल्ला , हरकतकरूनये
"
अथवा हसूलदप्तरीर्फेेरबदलकरण्यातयेवूनयेतअशीमिनरंतरचीनाईदेर्णेतयावी
The Trial Court has held that raising challenges to various
31)
documents and sale deeds executed between 2006 and 2008 by filing
amendment application on 27 November 2017 is grossly barred by
limitation. Mr. Shah has relied on judgment of the Apex Court in Shanti
Devi (supra) in support of his contention that when land owner has not
signed/executed document of transfer, it is enough to seek a declaration
that the document of transfer does not bind his/her share and that
therefore the period of limitation does not apply. In Shanti Devi , the
Apex Court has held in paragraphs 32 and 33 as under:
32. In Hussain Ahmed Choudhury (supra), it was clearly opined that a
plaintiff who is not a party to the instrument in question need not seek
its cancellation. We are not oblivious to the fact that in a situation where
the plaintiff was not a party to the instrument, the said decision laid
down a requirement that a declaration must be sought to the effect that
the said instrument was not binding on the plaintiff. However, the said
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decision clarified that whether the plaintiff has sought such a declaration or
not could be culled out from a holistic reading of the plaint along with the
relief(s) sought. In cases where the character of the sale deed is assailed as
being fraudulent, this requirement is implicitly satisfied since the very
averment that the sale deed was fraudulent or a sham and bogus transaction by
itself indicates that the plaintiff did not intend to be bound by it. Therefore,
this requirement too, could be said to have been satisfied by the plaintiff in the
present case.
33. Further, as per State of Maharashtra (supra), it would be of no consequence
even the plaintiff in one of his prayers, seeks a declaration that the sale deed is
a nullity or invalid insofar as he is concerned, since such an instrument would
anyway be void owing to it being fraudulent. Therefore, the period of
limitation for a suit for possession based on title would continue to be
governed by Article 65. In other words, the addition of such a prayer would not
influence the period of limitation within which such a suit must be filed.
(emphasis added)
32) In my view, however the judgment of the Apex Court in
Shanti Devi is clearly distinguishable and does not apply to the facts of
the present case. In case before the Apex Court, Plaintiff therein had filed
a suit for permanent injunction to restrain the Defendant from
interfering with their peaceful possession to the extent of one-third
share in the agricultural land. In the alternative, Plaintiffs prayed that
they be put in joint possession of the suit property along with the
Defendants. Thus, the suit did not seek a declaration that Plaintiff
therein are owners in respect of the suit property. The suit was filed by
the joint owner against another joint owner for possession of one third
share in the suit property. In such situation, when it was found that the
other joint owner had executed instrument of transfer, the Apex Court
has held that since Plaintiff did not sign or execute any instrument of
title, they could simply seek a declaration that such instrument of
transfer does not bind their share and for seeking that declaration
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limitation prescribed under Article 59 of the Limitation Act does not
apply. In the present case, however Plaintiffs are not admitted owners of
the suit property. They have sought a declaration that they are true
owners of the suit property. Defendant No.1 has not admitted title of
Plaintiffs in respect of the suit properties. Even though alternate plea of
adverse possession is raised, Defendant No.1 has also raised a plea that
she has purchased the suit property from husband of Plaintiff. No1. Thus,
Plaintiff needs to secure a declaration of ownership in respect of the suit
properties. Secondly, the Plaintiffs have not restricted their amended
prayers to a declaration that the challenged instruments do not bind
their shares. The present case does not involve joint ownership of the
suit property by the Plaintiffs and Defendant No. 1, nor does it concern
the alienation by Defendant No. 1 of the Plaintiffs’ share in the suit
property. The ratio of the judgment of the Apex Court in may
Shanti Devi
apply to a case where joint owner alienates share of another joint owner
and where the aggrieved joint owner seeks a declaration that the
alienation does not affect his share. In the present case, however, there is
neither joint ownership nor a declaration can be sought that instrument
of transfer does not bind the Plaintiffs. Plaintiffs claim ownership of
whole of the land by seeking a declaration that Defendant No. 1 had no
right, title or interest in the suit property. Therefore, the Plaintiffs have
sought a declaration that the sale deeds are void ab initio and liable to be
set aside. The relief sought is not limited to a declaration that the
alienations are not binding on their respective shares. This is because
the Plaintiffs claim ownership of the entire suit property, and therefore,
no question of shares in the suit property arises. In my view therefore
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the ratio of the judgment of the Apex Court in Shanti Devi can have no
application to the facts of the present case.
33) In Life Insurance Corporation of India V/s. Sanjeev
5
Builders Private Limited and Another , the Apex Court has expressly
held that where the proposed prayer in amendment application is ex-
facie barred by limitation the Court would be justified in refusing to
permit such amendment. The Apex Court held thus:
71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do not seek to
withdraw any clear admission made by the party which confers a right
on the other side, and
(c) the amendment does not raise a time-barred claim, resulting in
divesting of the other side of a valuable accrued right (in certain
situations).
This Court is satisfied that the prayers sought to be
34)
incorporated challenging various documents and deeds executed
between the years 2006 and 2008 are hopelessly barred by limitation and
could not have been permitted to be incorporated by allowing the
amendment application filed in the year 2017.
35) Even if the aspect of limitation is to be momentarily
ignored, there are other better reasons for rejecting the amendment as
discussed above. Once the Plaintiffs are not permitted to amend the
description of the suit property to include land bearing Gat No. 602 in its
5 2022 SCC OnLine SC 1128.
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ambit, the proposed amendments challenging the sale deeds qua land
bearing Gat No. 602 automatically become infructuous. If the land
bearing Gat No. 602 is not the subject matter of suit, there is no point in
allowing amendments for challenging the various sale deeds.
36) Another facet in this regard is Plaintiff's action of selectively
challenging only sale deed dated 26 December 2008 by filing application
for amendment dated 26 February 2013. As observed above, filing of the
said amendment application is suppressed in the present petition. If
Plaintiffs could challenge sale deed of 26 December 2008 by filing
amendment application on 26 February 2013, why they did not challenge
rest of the sale deeds and documents executed contemporaneously is
beyond comprehension. This again depicts gross negligence on the part
of the Plaintiffs in prosecuting the suit. The amendment therefore does
not appear to be bonafide.
37) In Life Insurance Corporation of India V/s. Sanjeev
Builders Private Limited (supra), the Apex Court has also held that if the
proposed amendment is found to be malafide, the Court can reject the
same. In the present case, there is some material to infer that Plaintiff
always intended to claim ownership and possession qua land bearing Gat
No. 612. Before filing the suit, both the Plaintiffs filed application dated
24 February 1994 for removal of name of Defendant No.1 and for
inclusion of their names qua Gat No. 612. Along with the plaint, they
have filed 7/12 extract of Gat No. 612 which includes name of Sindhu
Bhaskar Dhote. Thus, Plaintiff always intended to claim rights in Gat No.
612. When Plaintiffs realised that the sale deed dated 26 December 2008
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also pertained to Gat No. 602, they consciously omitted to challenge the
said sale deed and restricted their challenge to the sale deed pertaining
to Gat No. 583 alone. It appears that only after the Plaintiff No.1 realized
that the third parties had purchased portions of land in Gat No. 602, she
apparently decided to embroil land bearing Gat No. 602 in the pending
suit possibly with an intention of bringing the purchasers to
compromise/negotiations. This is one of the reasons why this Court is
unable to record a finding that the proposed amendment seeking to
modify the description of the suit property in paragraph 1(b) is not a
bonafide exercise. Therefore, even on the ground that the proposed
amendment is not bonafide, the same deserves to be rejected.
38) Mr. Shah has contended that if Plaintiff is found to be
negligent in not applying for timely amendment, equities could have
been balanced by imposition of costs instead of rejecting the application
for amendment altogether. He has relied on judgment of the Apex Court
in Surendra Kumar Sharma . In my view, however, when the amendment
is totally time barred and not bonafide there is no question of allowing
the same by imposition of costs.
39) It must also be borne in mind that this is the second
amendment application in a suit which is pending since the year 1995.
Even if the proposed amendments are allowed, the same is not going to
stop further amendments. As observed above, Plaintiffs will have to seek
amendment in boundaries of the suit property. The suit is pending for
the last 31 long years and it appears that the intention of Plaintiff No. 1
appears to be to keep the Defendants and proposed Defendants engulfed
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in endless litigation so that they finally come at the negotiation table.
Though the proviso to Order 6 Rule 17 was introduced by CPC
(Amendment) Act, 2002, the same does not mean that the Plaintiff in a
pre-2002 suit can amend the plaint at any point of time.
Considering the overall conspectus of the case, I am of the
40)
view that no interference is warranted in the impugned order passed by
the Trial Court rejecting the amendment application. The Petition is
accordingly dismissed without any order as to costs. Pending Interim
Application if any disposed of.
[SANDEEP V. MARNE , J.]
NEETA
SHAILESH
SAWANT
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2026.10.28
18:39:07 +0530
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