DHANSUKHBHAI NARANBHAI AAHIR Vs. RAMANBHAI NARANBHAI AAHIR

JUDGEMENT

(1.) By way of filing this petition under Articles 226 and/ or 227 of the Constitution of India, the petitioner who is the plaintiff in the Special Civil Suit No.28 of 2015 pending before the Principal Civil Judge, Bardoli, has sought for the following relief:

(2.) The brief facts of the case of the petitioner-­plaintiff is that he has filed the Special Civil Suit No.28 of 2015 before the Civil Court, Bardoli for declaration and permanent injunction against 3 defendants who are respondents herein. That the plaintiff and the defendant No.1 are the real brothers and defendant No.1 has shifted to Panama for service and the plaintiff was looking after the ancestral property. It is alleged that defendant No.2 has instigated the wife of defendant No.1 and caused interference in the family matter. It is the say of the plaintiff that the Suit property which is described in Para-­2 of the plaint are jointly owned by the plaintiff and defendant No.1. It is alleged that the defendant no.1 and his wife had came back to India for social purpose and at that time exerted pressure and declared that he had partitioned his share and also made mutation entry no.2985 in the revenue record. It is alleged that no procedure was taken out thereof by the said defendant with respect to land came into the share of the plaintiff. It is also contended that he has filed the Suit for cancellation of agreement dated 29.5.2013 and also sought declaration and injunction.

(3.) In the present matter, the affidavit-­in-­reply is filed by the original defendants-­respondents. It is alleged that due to partition deed dated 29.5.2013 the defendants had been put into physical possession and administration of the suit properties qua their shares. He has also contended that after gap of four years and six months, the petitioner-­ plaintiff has preferred revenue proceedings and in that proceedings he has failed. According to them, the trial Court has already framed issues at Exh-­28 and the trial has commenced and the plaintiff has submitted examination-­in-­chief at Exh-­38. It is contended that at that stage the plaintiff had changed his Advocate, and thereafter moved an application at Exh-­80 seeking material amendment in plaint including cause title and prayer clause. It is contended that the proposed amendment would amount to change in basic structure, nature and character of the suit and it will prejudicially affect the defence of the defendants. While referring to the decision of the Apex Court in the matter of Vidyabai and Ors v/s. Padmalatha and Anr, reported in AIR 2009 SC 1433, it is contended that after commencement of the trial, amendment is not permissible. It is also contended that initially the nature of the suit is regarding declaration and permanent injunction only and if the proposed amendment is allowed then it will be converted into partition suit and suit for specific performance. It is also contended that there is already partition of the properties between the parties and there is no need of amendment to be allowed. According to them, the trial Court has properly appreciated the facts and rightly rejected the application.