1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 490 of 2010 PETITIONER : Dnyandeorao S/o Kisanrao Sapkal, Aged about 55 years, Occu. Cultivator, R/o Dandori, Tah. Akot, Dist. Akola. ..VERSUS.. RESPONDENT : Kailas S/o Bhagwan Pande Aged about 47 years, Occu. Cultivator, R/o Dandori, Tah. Akot, Dist. Akola. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 18, 2010. Heard finally Mr. L.A. Mohta, learned counsel for the petitioner and Mr. D.P.Jaiswal, learned counsel for the respondent. Because of subsequent report of the Commissioner, appointed by the trial court, the petitioner/plaintiff wanted to amend his plaint thereby raising challenge to Adoption Deed and also extending the area under his ownership. The learned trial court has rejected that application. Learned Advocate Mr. Mohta argues that the amendment has become necessary because of subsequent report of the Commissioner. Learned Advocate Mr. Jaiswal contends that the extent of area under his possession and ownership was known to petitioner/plaintiff at the time of institution of the suit 2 and hence, amendment by which that area is sought to be increased, is not on account of any subsequent event. He further states that if such amendment is allowed, it has the effect of withdrawal of admission whereby petitioner/ plaintiff has accepted ownership of respondent over the part of the area. After hearing the respective learned counsel, I find that the amendment sought was in paragraph 2 of the plaint and also by adding paragraph 3-A after paragraph 3 therein. The contention of learned counsel Mr. Jaiswal that area in possession of petitioner/plaintiff and belonging to him was within knowledge of the plaintiff at the time of institution of the suit, needs to be accepted and if that area is allowed to be extended, it is apparent that an admission of title of present respondent is indirectly allowed to be withdrawn. The report of Commissioner cannot be allowed to be used for said purpose. However, in paragraph 3-A, the amendment is necessary because of Adoption Deed, dated 29.5.1912 pointed out by respondent in his written statement. The said amendment also attempts to demonstrate ownership over the area (extended area) as per the report of Commissioner. Hence, if paragraph 3-A is only allowed to be added, the admission on record is not withdrawn and the respondent/defendant is not prejudiced in any way as he gets an opportunity to cross-examine the petitioner/plaintiff in that light. In this situation, the application for amendment moved by the petitioner/plaintiff is partly allowed and amendment only to the extent of part of paragraph 3-A is 3 allowed to be incorporated in the plaint. The necessary amendment to the plaint be carried out by 31st March, 2010. Liberty to respondent to carry out consequential amendment in his written statement thereafter by 13th April, 2010. The trial court shall thereafter proceed further with trial of the suit. Writ Petition is, thus, partly allowed. No order as to costs. JUDGE Diwale