On 10th March, 1964 the appellant who was plaintiff No.
1 to respondent No.
During the pendency of the appeal the second respondent applied for an amendment of the written statement seeking to raise a plea of the bar of limitation which was granted.
321 of 1965.
She prayed for revocaion of the sale deed in favour of respondent No 2 execution of a fresh sale deed in her own favour from both the respondent she also prayed for damages of Rs.
2 preferred an appeal to the High Court against the said remand order, but since the learned Single Judge of the High Court was doubtful whether an appeal lay against the impugned remand order he companyverted the appeal into a revisional application and proceeded to her the same as such.
On merits it found that the appellant relied upon the companypromise decree passed in the partition suit to sustain the plea of agreement of sale and numberseparate agreement of sale as such was pleaded of which specific performance companyld be claimed but in its view the companypromise decree did number companystitute any agreement for sale but merely companyferred a right of pre emption on the appellant plaintiff.
1 Instead of offering the said land to the appellant the first respondent sold the same to the second respondent her daughters son in law by registered sale deed dated 25 9 1962 for a price of Rs.
236/1/2 part was allotted to the share of respondent No.
2 the purchaser under the sale deed dated 25 9 1962 preferred an appeal to the District Court at Satara being Civil Appeal No.
The trial Court by its judgment dated 18th August, 1965 upheld the claim of the appellant and decreed the suit in her favour save and except that it negatived the claim for damages and means profits, Against that decree respondent No.
It appears that the said order of remand was passed upon companysent of the parties.
That amendment application was opposed but numberwithstanding the opposition that amendment was allowed by the Assistant Judge on 28th April 1966.
2 pursuant to the impugned sale.
1000/ and further claimed means profits upto the date of delivery of possession.
1 in the parities suit filed a suit being Regular Civil Suit No.
Later on 11th June 1966 the learned Assistant Judge allowed the appeal, set aside the decree of the trial Court and remanded the suit for fresh trial in accordance with law.
The High Court felt that the learned Assistant Judge had erred in allowing the amendment sought by the appellant plaintiff inasmuch as it companyverted the suit into an entirely new and inconsistent one than what had been instituted initially.
The High Court also felt that the suit as initially filed for enforcement of the right of pre emption was clearly barred by limitation inasmuch as the suit had been filed long after the expiry of one year from the date of delivery of possession of the land by respondent No.
It was true that the plea of limitation had number been raised in the written statement initially and the same was allowed to be raised by way amendment in the appeal.
30/64 in the Court of the Civil Judge, Phaltan, seeking to assert her right of pre emption in respect of the said LAND basing her claim entirely upon the companypromise decree.
4,000 and upon the execution of the deed the possession was also delivered to the second respondent.
The appellant also applied for an amendment of the plaint seeking to introduce in the plaint a new case that there was an agreement of sale in her favour in respect of the land in question and the desired to specifically enforce the same.
It appears that under this companypromise decree 5 acres of land bearing survey No.
D. Tulzapurkar, J. A companypromise decree in a suit for partition to which the appellant and respondent No.
1 were parties companyferred a right of preemption on all the parties thereto inasmuch as after allotting the different properties to them a provision was made in the decree to the effect that if the plaintiffs or defendants wanted to sell the properties allotted to them they should sell the same among themselves mutually.
