(1) WP. 1931.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1931 OF 2010 Ratiram S/o Venkat Patil .. Petitioner VERSUS Vishwanath S/o Damu Patil and others .. Respondents Mr. P.R. Katneshwarkar, Advocate for the Petitioner Mr. V.B. Patil, Advocate for the respondent no.1 ... CORAM : V.R. KINGAONKAR, J. DATED : 24TH JUNE, 2010 ORAL ORDER:- 1] By this Petition, the petitioner challenges the order dated 21.12.2009 rendered by the learned Civil Judge (Junior Division). The petitioners filed suit (R.C.S. no.110 of 2009) alongwith his two brothers. The suit is for injunction simplicitor. The contesting defendants resisted the suit by filing written statement. According to them, though the suit land was shown in the name of the plaintiffs as per the entries in the revenue record yet, in-fact, the plaintiffs are not in possession of the entire land as such. The contesting defendants allege that originally survey no. 101-1-2 was allotted gat no.224 while implementing the consolidation scheme. They (2) WP. 1931.2010 denied that during the consolidation scheme the land in their possession was shown only to the extent of 3A 32G. They contended that survey no. 101-1-2 was of 4A 27G and therefore their land gat no. 224 remained as it is i.e. to the extent of 4 Acres 27G after consolidation. The defendants allege that the boundaries of the land in question may be proper as per the record of the revenue department but on the spot, they were in fact different. They submitted application for amendment alleging that the specific boundaries were required to be mentioned and that they specifically wanted to mention that though their possession as per the revenue record was shown in respect of gat no.225, yet they were in possession of gat no.224, as a matter of fact and that the plaintiff is in possession of gat no.225 though his name appears as possessor of land gat no. 224. They also submitted a map indicating their respective lands. 2] What appears from the record is that the entries in the consolidation record are being disputed by the parties. The description of the lands in question can be gathered from the map which is sought to be put forth by the defendants. The consolidation map, the map which is prepared by the T.I.L.R. and the copy which is sought to be put-forth by the defendants can be considered by the trial Court. (3) WP. 1931.2010 3] Learned counsel for the petitioner would submit that the amendment is impermissible because the previous admission of the defendants is sought to be obliterated and withdrawn. He would submit that the defendants previously admitted that the plaintiffs were in possession of land gat no. 224 but now that admission is sought to be withdrawn by saying that the possession of the plaintiffs is over gat no. 225 and not in respect of gat no. 224. The proposed amendment seems to be rather in continuation of the previous pleadings whereby, it was stated that the area of the boundaries described by the plaintiff in the claim clause may appear to be proper in accordance with the revenue record yet as per the actual position and the real position on the spot, boundaries of the suit land are incorrectly described. It is also well settled that the defendants may adopt inconsistent stand or even the stand which is quite opposite to the pleadings adopted at the initial stage. For example, the defendants may plead ownership on basis of certain admissions but by way of amendment may also plead that they became owner on account of prescriptive possession. The Apex Court in "Modi Spinning and Weaving Mills Company Limited Vs. Ladha Ram and Company 1976(4) SCC 320", held that where entirely different case is sought to be introduced by way of amendment, then the amendment may not be allowed. (4) WP. 1931.2010 This Court in "Janu Laxman Kumbhar Vs. Pandurang Laxman Kumbhar 2002(1) Bom.C.R. 212" held that by way of amendment, the admission on part of the defendant cannot be allowed to be withdrawn. There cannot be duality of opinion regarding the settled legal position that clear admission given by the parties cannot be withdrawn by way of amendment. In "Usha Balasaheb Swami and others Vs. Kiran Appaso Swami and others 2007(5) SCC 602" the Apex Court held that the Courts should be liberal in allowing amendment of pleadings, unless serious injustice or irreparable loss is caused to the other side, or the prayer is not bonafide. In the present case, the contesting defendants came out with a case that though description of the suit land by boundaries as per record of the revenue department appear to be proper yet, in-fact, that was different having regard to factum of possession of the property. This statement made by the contesting defendants was sought to be elaborated and explained by way of amendment in question. 4] The impugned order cannot be therefore faulted with. No serious prejudice is caused to the petitioner. Under the circumstances, Petition is dismissed. No costs. Sd/- [V.R. KINGAONKAR, J.] arp