PARVATABAI KONDAJI CHOUDHARI DIED THROUGH LRS PARSHURAM KONDAJI CHOUDHARI AND ANOTHERversusDNYANDEO CHIMAJI CHOUDHARI AND OTHERS

2026:BHC-AUG:38777



                                                                  7-sr909.wp.4271 of 2024


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                             909 WRIT PETITION NO. 4271 OF 2024

                              Parvatabai Kondaji Choudhari (Died)
                     Through L.Rs. Parshuram Kondaji Choudhari And Another
                                            VERSUS
                            Dnyandeo Chimaji Choudhari And Others

                                                ----
            Mr.Satyajeet S. Dixit, Advocate for petitioner
            Mr.K.N.Shermale, Advocate for respondent no.1
            Mr.S.N.Kendre, AGP for respondent nos.2 to 7
                                                ----

                                      CORAM :      AJIT B. KADETHANKAR, J.
                                      DATE  :      AUGUST 25, 2026

            ORDER :-

                         Heard both sides.


            2.           Regular Civil Suit No.660 of 2018 was filed by the present

            petitioners in the court of learned Civil Judge, Senior Division,

            Sangamner, Dist. Ahmednagar against the present respondent.


            3.           It was pleaded that the plaintiffs are owners and possessors

            of the agricultural land located in gut No.115/2, while on their southern

            side, defendants own and possess their agricultural land identified as

            gut no.115/1.    The description of the suit property is mentioned in

            paragraph 1 of Exhibit 1 wherein to the southern side of the plaintiff’s

            property, the land of respondent no.1 is located at gut no.115/1. The
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defendants caused their appearance in the suit and resisted the

application by filing their respective written statements. Before the

trial could commence, an application under Order 6 Rule 17 of the

Code of Civil Procedure, 1908 came to be filed by the plaintiffs

seeking amendment in the plaint.         The plaint is sought to be

amended on two counts: firstly during pendency of the suit the

plaintiff no.1’s mother died and hence, the remaining brother is

sought to be added in the plaint. It is inter alia sought to be brought

on record that there is partition between the two brothers.          The

second amendment is sought to be placed on record for change in

the boundaries of suit property.


4.          The text of the application Exh.38 shows that by the

partition it is shown that plaintiff no.1 is on the northern side of the

suit property while plaintiff no.2 is sought to be shown on the

southern side of the property.     For the sake of argument, if it is

accepted that the plaintiff no.2 is on southern side of their property,

in any condition such amended description of the suit property will

be in contravention of the description of the suit property mentioned

in paragraph 1 of Exh.1. Obviously, the defendants have raised their

defence taking to the description of the suit property.
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5.          The trial court has rightly observed that the factum of

partition between the two brothers i.e. plaintiff no.1A and plaintiff

no.2 has no relevance with the controversy in the suit.


6.          Present suit is filed mainly for fixation of the boundaries

and recovery of possession if encroachment is found at the behest of

the defendants.    Hence, I agree with the view taken by learned

Judge of the trial court that amendment sought to be brought on

record about the factum of partition is not relevant to resolve the

controversy between the parties.


7.          Secondly, so far as the description of the suit property is

concerned, considering the description of property given in the suit

and the written statement of the defendants whereby they had

disputed everything including the description in the suit property,

the amendment cannot be said to be permissible and hence learned

Judge of the trial court has rightly discarded the same.


8.          Mr.Dixit, learned advocate for the petitioner has placed

reliance on the decision of this court in the case of Francisco

Patrico Rodrigues and anr. Vs. Aleixo Cipriano Albuquerque

and others, 2012(1) Mh.L.J. 603. I have cautiously gone through

the said judgment. With due respect, I record that the facts in the
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said case are quite different from the facts in the present case. It is

true that, in that case also, there were subsequent events; however,

in the present case, the subsequent event is sought to be relied upon

for the purpose of correcting the description of the boundary. This

Court, while deciding the cited case, observed in paragraph 6 that

the contention of the learned Advocate for the petitioner was

acceptable, as the proposed amendment sought to introduce certain

subsequent events which were not in dispute, while the remaining

part of the proposed amendment was merely clarificatory in nature.

Such is not the case with the present petitioner.


9.          In view of the above, this Writ Petition stands dismissed.



                                 [AJIT B. KADETHANKAR, J.]
                               ………..


KBP