The limitation for seeking a mandatory injunction begins from the date of actual encroachment, not from the completion of construction.

JUDGMENT :

Bharat P. Deshpande, J.

Rule. Rule is made returnable forthwith.

2. Heard learned Counsel for the respective parties for final disposal at the stage of admission with consent.

3. Petitioners/plaintiffs prefer present petition thereby challenging the impugned order passed below Exh.73 dated 24.1.2023. By the said order, learned trial Court rejected the application filed for amendment of plaint.

4. Mr. Desai, learned counsel for the petitioners would submit that amendment application was filed by the plaintiffs to add prayer of mandatory injunction however, the same has been rejected on the ground that such amendment is time barred.

5. Plaintiffs filed a suit for permanent and temporary injunction claiming that there exists a property bearing survey no.526/1 in Shiroda wherein there are houses belonging to different persons including mother and mother in law of plaintiffs. After the death of Smt. Nanu Pandharinath Shirodkar, inventory proceedings were conducted. Plaintiff no.1 is adopted son of Pandharinath Venkatesh Shirodkar and Smt. Nanu Pandharinath Shirodkar and accordingly suit properties were allotted to the plaintiffs. It is further their case that somewhere in 1.1.2015, defendant installed a board in the suit property displaying that the project undertaken by Shree Kamashi Saunsthan, Shiroda for construction of building. Accordingly, plaintiffs collected documents from Town and Country Planning Department and other permissions. The Town and Country Planning Department handed over such documents vide letter dated 16.1.2025. On verifying it plaintiffs got knowledge that defendant has undertaken the constructions of the Agarshala in the property belonging to the plaintiffs. Somewhere on 2.2.2015, the petitioners noticed that the activities with regards to laying of the foundation stone was undertaken. When the plaintiffs contacted office of the defendant, there was no response.

6. It is case of the plaintiffs that defendant are not the owners in possession of the suit property and that defendant are not having any right or interest therein. Plaintiffs claimed that the suit property is in their possession and enjoyment since their ancestors time. It is their contention that defendant is carrying out construction activities in the suit property and when plaintiffs tried to stopped them, they were abused. Cause of action as shown in the plaint is 1.1.2015 when the board was installed by the defendant claiming about the development. Accordingly, prayer in the suit for grant of permanent injunction restraining the defendant from trespassing and doing any construction activities.

7. Along with the plaint an application for temporary injunction was also filed. Defendant contested such application after filing their reply. By order dated 16.3.2017, learned Civil Judge rejected such application. Plaintiffs filed Misc. Civil Appeal before the District Court which was rejected vide order dated 27.11.2017. Plaintiffs then prefer a Writ Petition bearing No.314/2018 before this Court however, it was dismissed vide order dated 23.3.2018. Only thereafter an amendment application was filed on 18.12.2022 seeking amendment to the plaint by claiming mandatory injunction thereby removing illegal construction carried out by the defendant. It is admitted fact that construction is complete and that was during the pendency of the appeal before the District Court.

8. Mr Desai would submit that amendment is essential to decide the dispute effectively between the parties, since the trial has not commenced, amendment ought to have been allowed. He submits that question of limitation would not have been gone into as it is question of fact and law which has to be decided on framing of issues. He submits that development which took place after the suit was filed are required to be brought on record and therefore, such amendment is necessary for the purpose of deciding the dispute between the parties effectively. He would submit that even to avoid multi