2025:BHC-AS:9766 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.164 OF 2015 Vijaymala Sidling Doijad, Age 75 years, Occu – Household, R/at, New Pargaon, Taluka Hatkangale, Dist. Kolhapur ... Petitioner versus

1. The State of Maharashtra, through Collector of Kolhapur, Collector Office, Kolhapur

2. Tahasildar, Taluka Hatkangale, Dist. Kolhapur.

3. The Co-op. Housing Society Ltd., Pargaon, Taluka Hatkangale, District Kolhapur Through Chairman, Namdeo Yaswat Deshmukh (Chougule), Age Adult, Occu – Agri. And Social Work, R/at, New Pargaon, Taluka Hatkangale, Dist. Kolhapur. … Respondents Mr. Sandeep Koregave, for Petitioner.

Mr. Hamid Mulla, AGP for Respondent Nos.1 and 2.

Mr. Utkarsh Desai i/by Mr. P.S.Bhavake, for Respondent No.3.

CORAM: N.J.JAMADAR, J.

DATE : 28 FEBRUARY 2025

JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, heard finally.

2. This Petition under Article 227 of the Constitution of India calls in question the legality, propriety and correctness of an order dated 17 September 2014 passed by the learned Civil Judge, Kolhapur on an application (Exhibit 144) preferred by the Respondent-Defendant No.3 seeking permission to file Counter-Claim in Regular Civil Suit No.1056 of 2006, whereby the said application came to be allowed subject to payment of costs of Rs.2,000/- to the Plaintiff.

3. Background facts leading to this Petition can be stated, in brief, as under :

3.1 The Petitioner instituted a suit initially claiming relief of injunction against the State of Maharashtra – Respondent/Defendant No.1 and Tahasildar, Tal. Hatkangale – Respondent/Defendant No.2, to restrain them from disturbing possession of the Plaintiff over the suit property bearing Survey No.1573, forming part of the Co-op. Hsg. Soc. Ltd., Pargaon, Tal. Hatkangale – Respondent-Defendant No.3. Subsequently, the Plaintiff amended the plaint and sought relief of injunction against Defendant No.3 as well, so as to restrain the Society from constructing road or cutting trees standing on the suit property.

3.2 The substance of the Plaintiff’s claim is that the Defendant No.3 Society has allotted a freehold plot to the predecessor in title of the Plaintiff. There was no restriction on the user of the said plot. The Plaintiff is entitled to exercise all the incidents of ownership qua the suit property. Yet, the Tahasildar – Defendant No.2 addressed a notice on 1 July 2006 alleging that the Plaintiff had changed the user of the suit property. Subsequently, it was wrongfully alleged that the Plaintiff had committed encroachment over the eastern side road of the suit property, which according to the Plaintiff, does not exist. Hence, the suit for declaration that the notices addressed by the Defendants are void ab initio and to restrain Defendant Nos.1 and 2 from causing obstruction to the possession and enjoyment of the Plaintiff over the suit property and also to restrain Defendant No.3 from constructing road on the eastern side of the suit property or cutting trees standing thereon.

3.3 Issues were settled on 13 July 2009. The Plaintiff led evidence. Evidence of the two witnesses of the Plaintiff came to be recorded. Thereafter, the Plaintiff filed an application for amendment in the plaint. The said application was allowed. Defendant No.3 also filed an application for amendment in the written statement. That application was also allowed. Defendant No.3 also filed an additional written statement on 2 April 2014. It appears that, on 11 April 2014, after perusal of the amended pleadings, the trial Court made an endorsement that no additional issues arise for determination, post the amendment in the plaint and the written statement.

3.4 On 14 July 2014, Defendant No.3 filed an application seeking permission to file counter-claim contending, inter alia, that though the suit was initially filed for the injunction simplicitor, yet, with the amendment in the pleadings, issue as t