DAYABHAI NENSHIBHAI SHAH Vs. HIRACHAND NENSIBHAI SHAH

JUDGEMENT

(1.) By the present Writ Petition, the petitioner challenges the order dtd. 25/2/2025 passed by the 4th Joint Civil Judge Senior Division, Nanded on an application below Exh.176 in Regular Civil Suit No.381/2011, whereby the Civil Judge was pleased to reject the application filed by the petitioner-original plaintiff under Order VI Rule 17 of the Civil Procedure Code praying for amendment of the plaint.

(2.) The petitioner is the original plaintiff, who has filed Regular Civil Suit No.381/2011 for partition and separate possession in respect of residential house, which is a double storied building bearing CTS No.3179 claiming his 1/3 share in the suit property and also prays for perpetual injunction. It is pleaded in the suit that the suit property was purchased by the father of the plaintiff and defendants on 7/1/1954 by a registered sale deed and after the demise of their father, in the year 1983 the suit property was mutated in the name of legal heirs i.e. the plaintiff and defendants and their mother namely, Devkaben. Devkaben died in the year 2008. However, there was no partition of the suit property and the plaintiff and defendant no.1 are residing in the same house i.e. suit property. In the year 2011 the plaintiff came to know that the defendant no.1 has mutated his name on P.R. card in city survey record behind back of the plaintiff. It was noticed that defendant no.1 entered his name in place of his mother, namely, Devkaben and the said entry was mutated on the basis of false, forged and manipulated Will Deed. It was further noticed by the plaintiff that the defendant no.1 also purchased share of defendant no.2 by way of sale deed dtd. 15/7/2011. The petitioner - plaintiff thereafter filed suit for partition and separate possession of the suit property.

(3.) The defendant claimed in the written statement that Devkaben had executed a will deed in favour of defendant no.1 and thereby bequeathed her entire share in the suit property to the defendant no.1. It is contended that the sale deed executed by defendant no.2 in favour of defendant no.1 to the extent of share of defendant no.2 is also legal and proper.