1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 20. WP/7421/2009 (DATTU MAHAJAN UBALE V/S BALAJI MAROTI UBALE DIED THROUGH HIS LRS ) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. S.L.Bhapkar, Adv., h/f Mr. B.G.Deshmukh, Adv., for the petitioner. Mr.H.I.Pathan, Adv., for respondent nos.1/1 to 1/5. ... CORAM: K.U.CHANDIWAL, J. DATE:29/10/2010 1. Heard. In RCA No. 121/2002, pending before the learned Ad hoc Additional District Judge at Nanded, the respondent moved an application seeking amendment to the plaint. The learned Judge, by order dt. 12.8.2009, allowed the said application and, consequently questioned it in the writ. 2. The petitioner informs, by taking me to the written statement of the respondent in RCS No. 506/2000 that the respondent in 2 his written statement has canvassed that there is no boundary intervening land Gat No.3 and Gat No.17 of the petitioner at village Gadegaon. The respondent/defendant is owner of land Gat No.3, to the extent of half portion of 1 H. 74 R. while the other portion is owned and possessed by Sambhu s/o Kishan. 3. With these pleadings, the parties adduced the evidence. Cadestral Surveyor was examined who has, based on the factual position and Governmental record, confirmed that there was encroachment from the land Gat No. 17 to the extent of 10 R. carried by the respondent. The suit was decreed on 29.4.2002. The proposed amendment, as set out by the respondent in paragraph 7-A reads as under: " That, defendant / appellants are owner and possessor of land Gut No.3 situated at Gadegaon and suit land 10 R is part and parcel of Gut No.3. Appellants/defendants are 3 owner and possessor of Gut No.3 from their ancestrals, and without any interfere from long standing possession is more than 12 years and adverse to respondents as there is no any concern to Gut No.3 with respondent. Hence appellants/defendants are claiming adverse possession over the suit land 10 R which is part and parcel of Gut No.3. " 4. It is obvious, even in the proposed amendment, the respondent is not clear as to what he wants to address. The respondent should be aware of the legal position, when a plea of adverse possession is raised, necessarily, the latent is admission of ownership of adversary. The respondents, unnecessarily, mixed the issues even in the proposed amendment. 5. The observation of the learned Judge that it is mere introduction of alternate plea of encroached portion is not as simple as it is tried to be understood. The above position of the pleadings are indeed 4 destructive to each other which the learned Court has lost sight of. The legal position in this behalf is illustrated by the Lordships of the Apex court in 2009 (5) Mh.L.J. 597 ( Vimal Chand Chevarchand Jain and others Vs. Ramakant Eknath Jadoo ) in paragraph no.16. "16. The first Appellate Court, however, having regard to the amendment carried out in the written statement setting up a totally inconsistent plea from the one taken before the learned trial Court by the respondent posed a question as to whether the respondent has discharged the burden placed on him. For the said purpose, critical analysis of the prevarication of the stand taken by the respondent from stage to stage also became relevant. It is true that when a pleading is amended, it, subject to just exceptions, takes effect from the date when original one is filed. It is also true that the Appellate Court, in exercise of its discretionary jurisdiction and subject to fulfilment of the conditions laid down under Order XLI, Rule 27 of the Code of Civil Procedure, may allow the parties to adduce additional evidence. Pleadings of the parties, it is trite, are required to be read as a whole. 5 Defendants, although are entitled to raise alternative and inconsistent plea but should not be permitted to raise pleas which mutually destructive of each other. It is also a cardinal principle of appreciation of evidence that the Court in considering as to whether the deposition of a witness and/or a party is truthful or not may consider his conduct. Equally well settled is the principle of law that an admission made by a party in his pleadings is admissible against him proprio vigore. (See Ranganayakamma and anr. vs. K.S.Prakash(D)By Lrs. and ors. 2009(9)SCALE 144)" 6. Learned Counsel for respondent Mr.Pathan took recourse to 2007 (3) Bom.C.R. 680 ( Hanumandas Vallabhdas Vs. Pitambar Bhatu Chaudhary and others ) of this Court wherein learned Single Judge has accepted that the amendment can be carried at any stage. 7. There is no controversy, however, inconsistent pleas, destructive in nature, will not be permitted. The parties had already adduced evidence. The purpose of amendment is naturally to drag the litigation. There should be some limit to the life of 6 litigation and it should not be extended in perpetuity. The amendment itself was not imperative. It is advanced with caprice and sinister ideas. The order under challenge lacks merit, calls for interference. Writ Petition allowed. The order is set aside. No costs. (K.U.CHANDIWAL) JUDGE ... AGP/7421-09wp