C.R. 1012 of 2011 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYNA AT CHANDIGARH. C.R. 1012 of 2011 Date of decision:11.2.2011 Jaswant Singh Petitioner vs. Dilbag Singh & Ors Respondent Present: Mr. KS Dhillon, Advocate. M.M.S.BEDI,J. The defendant- petitioner is aggrieved by order dated 11.12.2010 passed by the Additional District Judge, Jalandhar dismissing the application under Order 6 Rule 17 CPC for amendment of the written statement at the appellate stage. The defendant- petitioner in his written statement has taken up a plea that the sale deed dated 16.8.1973 is a genuine document conferring a valid title on defendant No.5- petitioner and that this sale deed is with consideration without notice of defect of the title and is binding upon the plaintiffs and co-defendant, as such the declaration cannot be granted as prayed for. It appears that a suit for declaration has been filed by the plaintiff- respondents against defendant- petitioner and others challenging the validity of sale deed dated 16.8.1973 and possession of the property in dispute has been claimed from the defendant No.5 - petitioner. The petitioner has taken up a specific plea in his original statement that he is in peaceful, continuous and uninterrupted possession of the property on the basis of the sale deed dated 16.8.1973, as such relief of possession should not be granted in favour of the plaintiffs and C.R. 1012 of 2011 -2- defendant No.6. The defendant No.5- petitioner in appeal before the lower appellate court against the judgment and decree passed against him wants to incorporate the plea that he is in possession of the property in dispute continuously for a long time and he has become owner of the property with the passage of time. The petitioner now wants to incorporate, by way of amendment in his written statement, the following plea:- “ That the answering defendant purchased the property vide registered sale-deed dated 16.8.1973 from defendants No. 1 to 4 while paying the sale-consideration. The mutation was also sanctioned in the name of the answering- defendant. The possession of the answering defendant is peaceful, continues, uninterrupted, since the purchase of the property as of owner and no one ever interfered into the peaceful possession of the plaintiff. The plaintiff became owner of the property with the passage of time, as such, the suit of the plaintiff is not maintainable against the answering defendant:- The lower appellate court while considering the application, dismissed the same observing that the plea of adverse possession is being sought to be incorporated, which is inconsistent with the earlier plea and that the amendment has been sought at a belated stage. Learned counsel for the petitioner has relied upon Harbheg Singh & Anr vs Darshan Ram & ors 2006(1) Civil Court Cases 0798, in which this court has observed that the amendment at appellate stage is permissible if the amendment is necessary for effective adjudication of the rights of the parties. It has also been observed that the courts should generally be more liberal in allowing the amendment of written statement C.R. 1012 of 2011 -3- as the question of prejudice is unlikely to arise in that event. Learned counsel has also relied upon Sushil Kumar Jain vs Manoj Kumar & Anr 2009 AIR (SC) 2544, in which it has been observed that the defendant can be permitted to take inconsistent pleas or substituting or altering his defence. I have considered the ratio of the rulings cited by the counsel for the petitioner and I am of the opinion that there is no dispute regarding the law of the amendment of the written statement. The courts are required to be generally liberal in allowing the amendment of the written statement but the facts and circumstances of each case are to be taken into consideration. In the present case the amendment of the written statement has been sought at an appellate stage. The plea of adverse possession on the basis of sale deed, which is subject matter of the dispute, cannot be permitted as the plea has been taken up at a belated stage. Prima facie the said plea is also not available to the petitioner. The adverse possession has to be specifically pleaded and its ingredients are required to be established. The petitioner having not taken up the plea of adverse possession at the initial stage, cannot be permitted in the peculiar circumstances of this case to amend the written statement and delay the proceedings. Dismissed. Nothing said in this order will prejudice the rights of the petitioner on merits at the time of adjudication of the appeal or for adjudication of any other litigation pending between the parties. February 11 ,2011 ( M.M.S.BEDI ) TSM JUDGE