IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.348 of 2008 ABINASH KUMAR SINGH, Son of Late Krityanand Singh, resident of Village – Sonpur, Ahirpatti, P.O. & P.S. Sonpur, District – Saran. …. Defendant/Petitioner. Versus 1. MOST.KIRAN DEVI, daughter of late Bhupendra Narayan Singh and wife of Late Ajay Kumar Singh 2. KAMINI DEVI, daughter of Late Bhupendra Narayan Singh and wife of Shri Ranveer Kumar Singh. Both resident of village – Sonpur, Ahirpatti, P.O. & P.S. Sonpur, District – Saran. … Plaintiffs/Opposite Party Ist Set. 3. MOSTT. RAJ KUMARI DEVI, Wife of late Kritya Nand Singh 4. ARBIND KUMAR SINGH, Son of Late Krityanand Singh 5. SMT. RITA DEVI 6. MUNNI SINGH 7. RINTU SINGH 5 to 7 are daughters of Late Krityanand Singh 3 to 7 are resident of village Sonpur Ahirpatti, P.O. & P.S. Sonpur, District – Saran. 8. KRISHNA NAND SINGH, Son of Bhagwat Singh 9. ARJUN SINGH, Son of Ram Prasad Singh 10. BABANI DEVI @ KRISHNA DEVI, Wife of Deonath Singh 8 to 10 are at present residing at village – Bangara, P.O. – Bangara, P.S. Daudpur, District – Chapra. 11. SHANTI DEVI, Wife of Uday Narayan Singh, at present residing at village Jahipur, P.O. Garkha, P.S. Garkha, District- Chapra. 12. RAKESH KUMAR SINGH, Son of Umesh Singh @ Bhim Singh at present residing at Village Aayuchak @ Aakuchak, P.O. Rajdhani, P.S. Taraiya, District – Chapra. 13. MIRA DEVI 14. SANDHYA DEVI Both daughters of Umesh Singh @ Bhim Singh 15. MOSTT. CHAMPA DEVI, Wife of Late Shankar Singh 16. ASHA DEVI, daughter of Shankar Ssingh and Wife of Arjun Singh. All resident of village – Sonpur Ahirpatti, P.O. & P.S. Sonpur, District – Saran. …… Defendants/Opposite Party 2nd Set. For the petitioner : - Mr. R.K. Sinha 2, Advocate. For the O.Ps. 1 & 2. : - Mr. Dronacharya, Advocate. ----------- 02/ 11.05.2009 Heard both the sides. The present revision petition arises out of the order dated 17.12.2007 passed by the Subordinate Judge – VI, - 2 - Chapra (Saran) in Title (Partition) Suit No. 143 of 1994. The petitioner was the defendant in the above noted case which was brought on by opposite party nos. 1 and 2 in the capacity of plaintiffs. Others opposite parties were arrayed as defendants of different sets. The case of the petitioner was based on the fact that the petitioner being adopted by one Deomuni Devi, Wife of Bhupendra Narayan Singh, who as per the petitioner had died in 1961 and as per his instructions his wife Deomuni had adopted the petitioner as her son in the year 1970. These facts are admitted in the written statement filed by the petitioner in the above noted partition suit. It is not that it was a consistent on the statement of fact. The petitioner appears taking conflicting pleas which under law could be permitted but only when it does not change the admitted position of a particular party. The petitioner had made out a case in paragraph 10 of his written statement that the above noted Bhupendra Narayan Singh had died in 1961 and while dying he had instructed his wife Deomuni Devi to adopt a child of his caste or of agnatic relation as her son and accordingly, four years after the death of above noted - 3 - Bhupendra Narayan Singh the adoption ceremony was performed in accordance with law. The petitioner in paragraphs 24 and 29 of his written statement changed the date by stating that, in fact, the adoption ceremonies were performed in the year 1970. The petitioner was claiming before the court below as a proof of adoption, the date of adoption which was recorded in token of the witness of the ceremonial happenings. Subsequently the petitioner presented a petition for some amendments specially in paragraph 10 of his written statement so as to shifting the date of adoption from 1965 to 1970 and also to change the number of year, i.e., 4 to 9 as also to change his own status of being the elder brother to younger brother of the petitioner, in which case the petitioner also wanted the word ‘Chhota’ (younger) appearing before word ‘Bhai’ (brother) to be deleted. The court below by a reasoned order refused the prayer. The learned counsel for the petitioner has placed before me AIR 2007 SC 1663 Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors in which it was held - 4 - that amendment could be allowed because amendment of written statement so as to substituting the defence or taking of inconsistent pleas were legally admissible, but when one goes through the decision noted above one could find that in the case of Usha Balashaheb Swami (supra) there was no change as regards an admission of a fact by the party who was seeking amendment. As against the above, learned counsel appearing for the Opposite parties has placed before me (2008) 7 SCC 85 Gautam Sarup Vs. Leela Jetly and Others in which the Apex Court had laid down that if a party was found changing or jumping his admissions, which he had earlier made in his written statement or any form of pleading, then he could not be allowed to do so as to changing the facts admitted by him. In that case a distinction was made in the statutory admission as in the Evidence Act and others under the procedural law, which is covered by the CPC. It was observed that in statutory cases of admission a party has a right to lead evidence and that could lead to different inference to be drawn by court. But, in a case of admission of any party of a fact in his written statement, the situation is completely different and it could - 5 - not be at par with the statutory admission under the Evidence Act and as such it carries some more weight than the admission under the Evidence Act and could not be allowed tightly to be changed. I have gone through the paragraph of the written statement, which was making the original statements on different dates relating to death or adoption of the petitioner and I have also gone through the impugned order. On perusing the written statement and the order in the light of the decisions of the Supreme Court, I find that the learned Judge who refused amending the written statement by the petitioner was fully justified and was correct in not allowing the petitioner to change his position which was admitted by him on most important aspects of the matter. In the result, this revision fails and the same is dismissed without any order of cost. DKS/ (Dharnidhar Jha, J.)