1 22 WP 4008 OF 2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 22 WRIT PETITION NO. 4008 OF 2024 KESHARCHAND BHILAJI DUBELE DIED THROUGH LRS SEETARAM AND OTHERS VERSUS SURESH RAGHUNATH KHANDRE DIED THROUGH LRS MAHESH AND OTHERS ... Mr. S. S. Naik, Advocate for the Petitioners Mr. A. K. Shingare, Advocate for Respondent Nos.1A to 1D, 2A to 2D, 3 and 4 … CORAM : AJIT B. KADETHANKAR, J. DATED : 21st September 2026 P.C. :- . Feeling aggrieved by the order dated 08.11.2023 passed by the learned 5th Civil Judge, Junior Division, Aurangabad in Regular Civil Suit No.10 of 2006 on an application below Exhibit 59, the petitioners are before this Court. An application under Order VI Rule 17 of the Code of Civil Procedure came to be filed by the petitioners/original plaintiffs seeking certain modification in the Exhibit 1. 2. The sum and substance of the suit is that the plaintiffs and the defendants are adjacent landholders by virtue of certain registered sale deeds. The plaintiffs acquired title in 2026:BHC-AUG:43179 2 22 WP 4008 OF 2024 the suit property and became owner and possessor of the same. It is further the contention of the plaintiffs that during the course of time, the defendants have encroached upon certain portion of the suit property, which constrained them to file the suit. 3. In the suit, an application under Order XXVI Rule 9 of the Code of Civil Procedure came to be filed at the behest of the defendants seeking appointment of Court Commissioner to admeasure the land and place the same on record before the Court. The said application was allowed. The Court Commissioner was appointed and the report is placed before the Court. Both the parties have filed their respective short pursis thereby accepting the report, however, reserving their right to controvert the contents of the report. 4. The plaintiffs revealed that the portion of encroachment was noticeable a bit larger than what was claimed in the plaint. In view of that by the application Exhibit 59, an amendment was sought for modification of the area of encroachment and the possession as sought in the suit. 5. In the application, two more factors were mentioned. Although the plaintiffs have acquired title to the suit property 3 22 WP 4008 OF 2024 by virtue of registered sale deeds, by inadvertence or typographical mistake, it was mentioned that the suit property is their ancestral land. Hence, correction to that effect in the plaint was also sought in the application Exhibit 59. 6. The second factor for the amendment was that the description of diversion of the interest in the suit property pertaining to the erstwhile owner of the plaintiffs was sought to be explained. Some other amendment was sought to incorporate a few lines whereby the property transaction amongst the erstwhile owners was sought to be incorporated. 7. This application was vehemently opposed by the other side i.e. the defendants. Obviously, the objection was on account of delay as also that the amendment was to change the nature of the suit. It was also sought to be submitted that the case was not one where the petitioners i.e. plaintiffs could not cure the defect in the plaint even after exercise of due diligence. 8. After hearing both the parties, the trial Court was pleased to turn down the application by order dated 08.11.2023 which is impugned in the present petition. 9. Heard both the sides. 4 22 WP 4008 OF 2024 10. Mr. S. S. Naik, learned Advocate for the petitioners plaintiffs stood by his application Exhibit 59. Mr. A. K. Shingare, learned Advocate for the defendants/respondents advocated the findings recorded by the trial Court. 11. With the able assistance of both the learned Advocates for the respective parties, I have perused the case papers. 12. The very material fact of controversy is that both parties are adjacent landholders to each other. Apparently, the defendants have no interest in petitioners’ property, being its owner or a person having interest in the title over the suit property. 13. So far as the amendment sought in the area under encroachment is concerned, apparently such amendment, if allowed, shall not change the nature of the suit. In view of the report placed by the Court Commissioner, the plaintiffs have sought such modification. This is a consequential amendment which does not touch the merits of the other party in the suit. Hence, I find that the amendment for correcting the area of encroachment needs to be allowed. 14. So far as other amendments are concerned, it is a matter of fact that the defendants have even given reference 5 22 WP 4008 OF 2024 to the sale deeds by which the plaintiffs have acquired ownership and possession over the suit properties. There is no dispute as to the title of the plaintiffs. 15. As I observed above, the relation of the parties plays a vital role while deciding such application. The issue before the trial Court is in respect of encroachment by the defendants on the suit property. In view of this, if the plaintiffs contend that the source of title was mistakenly displayed as an ancestral mode, the same can be corrected by permitting the amendment as is prayed for. 16. Same is the case in respect of the explanation about the property transaction amongst the erstwhile owners, being relatives of the erstwhile owner. This amendment, if allowed in the peculiar circumstances, will not change the nature of the suit. 17. Suffice to note, the amendment is challenged after much delay. However, in order to deny an amendment on the count of delay, it has to be seen whether the amendment causes any serious prejudice to the defence raised by the defendants. Such is not the case in the case in hand. 6 22 WP 4008 OF 2024 18. In view of this, I find that the petitioners have made out a case to call for interference of this Court under Article 227 of the Constitution of India. Hence, I pass the following order: O R D E R I. The Writ Petition is allowed subject to payment of costs of Rs.10,000/- (Rupees Ten Thousand only), to be deposited in the trial Court in the suit, considering the delay caused by the petitioners/plaintiffs in filing the application seeking amendment on the point of correction of their source of title and explanation as recorded above. II. The order dated 08.11.2023 passed by the learned 5th Civil Judge, Junior Division, Aurangabad in Regular Civil Suit No.10 of 2006 is quashed and set aside. III. The application Exhibit 59 stands allowed. IV. The plaintiffs shall carry out the amendment within a period of four weeks from today by giving a copy of the amended plaint to the other side. V. The Writ Petition stands disposed of. ( AJIT B. KADETHANKAR, J. ) PRW