1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.551 OF 2009 Dhondubai Mhamulal Naikwade & Ors. ...Petitioners vs. Nuruddin Bandulal Mullani & Ors. ...Respondents WRIT PETITION NO.552 OF 2009 Dhondubai Mhamulal Naikwade & Ors. ...Petitioners vs. Smt.Nyamatibi Bandulal Mullani & Ors. ...Respondents Mr.Rahul Walvekar for the petitioners Mr.A.B.Borkar for respondent no.2,3A to 3E, 4 to 6 CORAM :A.S.OKA,J. DATE : SEPTEMBER 10, 2009 P.C. 1 Heard the learned counsel for the petitioners and the learned counsel for the contesting respondents. These two petitions can be disposed of by a common order. 2 The respondents in the writ petition no.551 of 2009 filed a suit against the petitioners for possession of the suit property which is admeasuring 450 to 500 sq. ft. out of City survey no.1198 E-Ward at Kolhapur. The said suit is filed on the basis of the title and it is contended in the suit that the possession of the predecessor of the petitioners was a permissive 2 possession. Writ petition no.522 of 2009 arises out of the cross suit filed by the predecessor of the petitioners. In the said cross suit in respect of the same property, it is contended that the predecessor of the petitioners was having undivided share in the suit property. Both the suits were heard together by the trial court and by a common judgment dated 15 th March 2005, the suit filed by the petitioners was dismissed and the suit filed by the respondents was decreed. On 29 th April 2005, the petitioners preferred two separate appeals for challenging the decrees passed in the suits. On 10 th January 2009, Applications for seeking amendment of the pleadings were made by the petitioner in both the appeals. In the appeal arising out of the suit filed by the petitioners, application was made seeking amendment of the plaint for incorporating the plea of adverse possession. In the appeal arising out of the suit filed by the respondents, an application was made for amendment of the written statement for incorporating the plea of adverse possession. In both the applications it was contended that the plea of adverse possession remained to be incorporated in the original pleadings. By a common order, the learned District Judge has rejected both the applications. These two petitions are preferred for challenging the rejection of the applications for amendment. 3 3 The leaned counsel for the petitioners submitted that the petitioners were always entitled to take up the plea of adverse possession in the alternative to the main pleading that their predecessor was having undivided share in the suit property. He submitted that there will no prejudice caused to the respondents if the said plea is allowed to be taken. In any event, in the written statement, inconsistent pleas can be always raised by a defendant and therefore, in any case, prayer for amendment of the written statement deserves to be allowed. 4 I have carefully considered the submissions. It must be stated that the suits were decided after complete trial. The appeals were filed in the year 2005 and three years thereafter, the present applications have been filed by the petitioners. Perusal of the applications for amendment show that the petitioners are not seeking to raise a plea of adverse possession in the alternative to the plea of title which is already there in the original pleadings. The perusal of the Judgment of the trial court in the suits shows that the petitioners proceeded with the trial on the basis of their plea that their predecessors were having undivided share in the suit property. The plea of adverse possession is sought to be belatedly raised in the year 2009 in the appeals of the year 2005. The original suits are of the year 2000. 4 Therefore, the learned District Judge was justified in passing the discretionary order of rejecting the prayers made for permitting the amendment of the pleading. Considering the facts and circumstances of the case, it is too late in the day to come out with the plea ofa adverse possession. Hence, petitions are rejected. 5 In view of disposal of writ petition no.552 of 2009, civil application no.2232 of 2009 does not survive and the same is disposed of. JUDGE