1. Rule, with the consent of the parties made returnable forthwith and heard.

2. The above Writ Petition takes exception to the order dated 20th December 2010 passed by the learned II-nd Joint Civil Judge, Senior Division, Thane by which order the Application Exhibit 83 for amendment came to be allowed and the amendment in terms of the schedule to the amendment Application was allowed to be incorporated in the plaint.

3. Shorn of unnecessary details, a few facts necessary for adjudication of the above Petition can be stated thus:

The Petitioner herein is the Original Defendant No.5 in the Suit filed by the Respondent No.1 herein for specific performance of the Agreements dated 19/4/1992 and 20/11/1992 in respect of the lands bearing Survey Nos.141/1 and 141/3. The said suit has been filed by the Respondent No.1 herein against the Petitioner and Respondent Nos.2 to 5 herein. The Petitioner herein also has an Agreement in its favour from the Defendant No.1 i.e. the Respondent No.2 herein. The Respondent No.2 had entered into an Agreement for Sale with the Petitioner on 9/7/1997 pursuant to which the possession of the property, which is the subject matter of the suit, came to be handed over to the Petitioner herein i.e. the original Defendant No.5. It is relevant to note that the Respondent No.1 herein, who is the Plaintiff amended the plaint in the year 1998 and in Para 15A, which was incorporated pursuant to the said amendment being allowed, it has been stated to the following effect:(Excerpt from Paragraph No.15A)

“The Plaintiff also found that the signboard of the consumer good product SASA was displayed at the entrance of the suit property. The said development was noticed by the Plaintiff very late and as the Plaintiff had not visited the suit property since after the date of the instituion of the suit. Upon further enquiry made in that regard the Plaintiff came to know that the Defendant No.1 had illegally transferred the suit property in the name of the Defendant No.5 and an inaugural function was also held on the site of the suit property some time into he month of November 1997.”

“The impugned transaction by and between the Defendant No.1 and the Defendant No.5 is illegal, null and void and not binding on the Plaintiff”

Prior to that the Defendant No.1 had filed his written statement on 16/1/1997 and it is stated by the Defendant No.1 in his written statement in Paras 6 (excerpt) and 8 as follows:

“This Defendant states that land bearing Survey No.41, HissaNo.3 admeasuring 3034.60 sq.meters and land bearing Survey No.41, Hissa No.1 (Part), admeasuring 3439.30 sq.meters of Village Varsova, Taluka and District Thane. This Defendant states that the said properties are in exclusive physical possession of this Defendant as the owner thereof.”

“8 With reference to para 1 of the plaint, this Defendant denies that he was owner or well and sufficiently entitled to the property bearing Survey No. 141, Hissa No.1(Part), admeasuring about 34 Gunthas i.e. equivalent to 3439.30 sq.meters and Survey No. 141, Hissa No.3, admeasuring about 30 Gunthas i.e. equivalent to 3034.60 sq.meters of Village Varsova, Taluka and District Thane as alleged. IN this connection, this Defendant states that he is absolutely seized and possessed and/or well and sufficient entitled to the land bearing Survey No.41 Hissa No.3 admeasuring 3034.60 sq.meters and land bearing survey No.41, Hissa No.1(Part), admeasuring 3439.30 sq.meters of Village Varsova, Taluka and District Thane, together with factory shed standing thereon. This Defendant therefore states that he has nothing to do with the survey numbers referred by the Plaintiff in para 1 of the Plaint.”

Thereafter the parties went to trial and the evidence of PW No.1 has been recorded wherein the PW No.1 i.e. the Plaintiff has admitted the document in question i.e. the Agreement (Exhibit 42) between the Defendant No.1 and Devnarayan Ghosh and the subject matter of the said Agreement is Surve