ORAL ORDER

1. This petition is filed under Articles 226 and 227 of the Constitution of India challenging an order passed below Exh.79 in Regular Civil Suit No.65 of 2008 passed by Additional Civil Judge, Umargaon dated 3.9.2016 whereby application filed by the respondents-plaintiffs praying for amendment in the prayer clause of the suit as mentioned in para-8(1) of the Application Exh.79, came to be allowed.

2. The petitioner is original defendant in the suit whereas respondents are original plaintiffs in the suit.

3. Regular Civil Suit No.65 of 2008 came to be filed by the plaintiffs praying partition of their undivided 1/3rd share in suit by metes and bounds, of the suit properties and for possession thereof claiming mesne profit also. It would be worthwhile to note that parties are closely related inter-se. The suit came to be filed on 7.7.2008 and on summons being served, the petitioner-defendant appeared and filed his written statement disclosing his defense and producing relevant documents on which he relies. Pursuant to the pleadings of the parties, issues came to be framed on 10.3.2010. An examination in-chief on oath came to be filed by the plaintiff No.5 on behalf of the plaintiffs wherein they claimed that in the suit property, they have 1/3rd share and they have sought for partition thereof and the possession of their share dividing it by metes and bounds. Since the suit filed and till the examination in-chief submitted, their claim was to the effect that they have undivided 1/3rd share in the suit property and it is not partitioned at all, despite defendant in his written statement claims that it is partitioned pursuant to a deed and the revenue entries also mutated based on such partition deed between the parties.

4. Mr.Bharda, learned advocate for the petitioner- defendant submitted that considering the application for amendment of plaint, where respondents-plaintiffs request for amending prayer in the plaint, changes the whole nature of the suit and therefore, no such amendment could be granted by the learned Judge along with other amendment praying for with regard to extent of share in the property in view of the subsequent development. However, he has submitted that at the time of first hearing before this Court and on issuance of notice, learned advocate for the petitioner restricted his challenge in the petition to the alternative prayer made in the amendment application and therefore, so far as extent of share claimed in the amendment application, this order will not touch that aspect of the amendment asked for. However, Mr.Bharda, learned advocate for the petitioner- defendant submitted that when the petitioner filed original suit, respondents-plaintiffs asserted that suit properties are undivided and they have 1/3rd share in the same. However, by way of amendment, they sought for now alternative prayer and requested to amend the prayer in the plaint in the alternatively to declare them as owner of the suit property because of the partition deeds dated 30.1.1986 and 2.3.1987, which they recently found they have became sole owner of it. Therefore, he has submitted that if such amendment prayed for is allowed by the trial Court, if permitted to stand, the partition suit sought to be converted even alternatively to a title suit which changes the basic nature and structure of the suit and therefore, he has requested that this petition be admitted and allowed and alternative prayer sought for by way of amendment whereby they seek declaration of ownership based on two partition deeds be quashed and set aside.

5. As against that, Ms.Tejal Vashi, learned advocate for the respondents -plaintiffs submitted that so far as amendment to the extent of share to the suit property is not challenged by way of this petition, the only challenge is made to the alternative prayer and without any prejudice caused to the petitioner-defendant, no interference by this Court with the impugned order, which allowed amendment, that too,