ARUN NARAYAN PATIL Vs. JAYSHREE JAYWANT PATIL

JUDGEMENT

(1.) By this Petition, Petitioners/Plaintiff Nos.1(a) to 1(d) have challenged Order dtd. 14/9/2015 passed by the learned Judge, City Civil Court Mumbai, rejecting Chamber Summons Nos. 718 of 2010 and 1089 of 2011 filed for amendment of the plaint in S.C. Suit No. 9984 of 1991.

(2.) Plaintiffs have instituted S.C. Suit No. 9984 of 1991 for declaration of properties as Hindu Undivided Family (HUF) properties and seeking partition thereof by metes and bounds. The suit was originally instituted in this Court as High Court Suit No. 1212 of 1991. The suit properties in Exhibit E included land bearing Survey No.151A situated at Village-Nahur, Mumbai Suburban District. Plaintiffs claim that even the said land bearing Survey No.151A is a joint family property. By Indenture dtd. 14/1/1971, the land bearing Survey No.151A admeasuring 38,374.72 sq.m. was transferred by Ratansey Karsandas and Ors. (Khots of Bhandup) to Bafna Charitable Trust. In their Suit for partition, Plaintiffs made averments not to implead Bafna Charitable Trust as party defendants so as to avoid misjoinder, even though property bearing Survey No.151A was sought to be declared as joint family property and partition thereof was sought.

(3.) In Suit No. 1212 of 1991, Court Receiver was appointed in respect of the suit properties, including the land bearing Survey No, 151A. Bafna Charitable Trust got aggrieved by the appointment of Court Receiver qua land purchased by it in Survey No.151A and filed Notice of Motion No. 3479 of 2004 under Order 40 Rule 1(2) of the Code of Civil Procedure, 1908 (Code) seeking deletion of land bearing Survey No.151A from the Suit and for discharge of the Court Receiver. By order dtd. 1/8/2008, this Court allowed Notice of Motion No. 3479 of 2004, directing deletion of land bearing Survey No.151A from the Suit and discharging the Court Receiver in respect thereof by granting liberty to the Plaintiffs to adopt appropriate proceedings against Bafna Charitable Trust. The order dtd. 1/8/2008 has attained finality on account of dismissal of the Appeal by the Division Bench on 17/10/2008 and order dtd. 14/5/2009 passed by the Hon 'ble Supreme Court in SLP (C) No. 11531 of 2009.