BASAVANAPPA BHIMSHA KOLI ALIAS JAMDAR Vs. SUNIL BASAVANAPPA

JUDGEMENT

(1.) Heard the learned counsel appearing for the parties. On July 4th, 2007 rule was issued in the Writ Petition and rule on interim relief was made returnable. The order dated July 4, 2007 notes that an endeavour will be made to decide the Petition finally on the date on which the Petition is fixed for consideration of interim relief. Accordingly, I have heard counsel appearing for the parties on the merits of the Writ Petition.

(2.) The petitioner is the original plaintiff who filed a suit for injunction restraining the respondent from interfering with the possession of the petitioner over the property described in the paragraph No. 1b of the plaint till the petitioner is dispossessed in execution of decree passed in Regular Civil Suit No. 39 of 1991. A prayer for mandatory injunction is also incorporated seeking a direction against the respondent to restore the amenities. An Application was made by the petitioner at Exhibit 26 for amendment of plaint. By the order impugned dated 28th November, 2006 the said Application has been rejected by the learned Civil Judge, Junior Division, Akkalkot.

(3.) In the plaint the petitioner has stated that late Gurulingappa filed Regular civil Suit No. 39 of 1991 against the petitioner for possession of the property described in paragraph 1b of the plaint and the said suit has been decreed. It is stated that an Appeal preferred by the petitioner against the said decree is pending in the District Court. It is alleged in the plaint that the respondent-defendant purchased the suit property from the legal representatives of late gurulingappa by a registered document dated 18th June, 2004. It is stated that the document dated 18th June, 2004 is in the nature of an agreement for sale which records that out of total consideration of Rs. 2 lakhs, the respondent had paid sum of Rs. 1,95,000/- to the legal representatives of the deceased Gurulingappa. It is stated that the agreement contains a recital that the respondent has been placed in possession. The apprehension expressed in plaint is that even before the decree passed in Regular Civil Suit No. 39 of 1991 is executed for dispossessing the petitioner, the respondent was likely to dispossess the petitioner by taking law in his own hands. In the Application for amendment at Exhibit 26 it is stated that on 14th July, 2006 the respondent filed an Application in the trial Court stating that the Agreement for Sale dated 18th June, 2004 has been cancelled by the document dated 24th March, 2006 and now possession of the suit property is with the legal representatives of the deceased Gurulingappa. The prayer in the application for amendment is for impleading the legal representative of deceased gurulingappa as the second to seventh defendants. A paragraph is sought to be added in the plaint for stating that transaction in favour of the respondent has been cancelled and now the proposed second to seventh defendants in collusion with the original defendant were trying to dispossess the petitioner. It is stated that as a prayer for perpetual injunction has been made against the original defendant on account of construction carried out by him in front of the suit premises, the original defendant will have to be continued as a party defendant no. 1. The said application for amendment was opposed by the respondent by contending that the respondent is no longer concerned with the suit property.