PIRGONDA HONGONDA PATIL Vs. KALGONDA SHIDGONDA PATIL

JUDGEMENT

(1.) This is an appeal by special leave from Judgment and decree of the High Court of Bombay dated 6-9-1951, by which the said High Court set aside on appeal the decree passed by the Civil Judge (Senior Division) Kolhapur, in civil suit No. 23/49 and allowed an amendment of the plaint at the appellate stage, subject to certain conditions, in the circumstances stated below.

(2.) The appellant before us was defendant 1 in the suit. Respondents 1 and 2 are the heirs of the original plaintiff and respondent 3 was defendant 2 in the action. In 1942 the original plaintiff filed a suit against respondent 3 for possession of the suit properties and obtained a decree in ejectment on 28-3-1944. This decree was confirmed in appeal on 9-7-1945. On a further appeal, the then Supreme Court of Kolhapur affirmed the decree on 2-4-1946. In the mean-time, the original plaintiff made an application for execution of the decree but was resisted or obstructed by the present appellant in obtaining a possession of the said properties. He then made an application under O. 21, R. 97, Civil P. C. complaining of such resistance or obstruction. This application was heard and dismissed under O. 21, R. 99, Civil P.C., on 12-4-1947. On 12-3-1948 the original plaintiff instituted the suit (out of which this appeal has arisen) under O. 21, R. 103 Civil P. C., for a declaration that he was entitled to recover possession of the suit properties from the present appellant who was impleaded as defendant 1.

(3.) Prior to its amendment, the plaint stated:"Defendant 2 in collusion with defendant 1 caused objection to be submitted against the said execution. The plaintiff had conducted Misc. Suit No. 5/1946 for getting the objection of the suit properties, getting the objection removed. However, that miscellaneous proceeding has been decided against the plaintiff. Therefore, the plaintiff has filed the present suit for getting declared that the plaintiff has right to take possession of the suit property against defendants 1 and 2." Apart from the decree obtained in the earlier suit, no particular averments were made as to the facts or grounds on which the plaintiff based his title to the properties in suit as against the appellant. An application was made on behalf of the present appellant on 20-11-1948, in which it was pointed out that the plaintiff filed the suit on the basis of the decision in an earlier suit to which the present appellant was not a party. It was then stated: