( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3251 OF 2010 Sopan s/o Ganpati Nagargoje and another. PETITIONERS VERSUS Avinash s/o Padmakar Wavhale and others. RESPONDENTS ..... Mr. V.C. Patil, advocate for the petitioners. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th June, 2010] PER COURT : 1. By this petition, the petitioners are challenging the order dated 11th March, 2010, rendered by learned Civil Judge (J.D.), Parali-Vaijnath on their application (Exh-52) filed in suit bearing R.C.S. No. 28/2007. 2. The petitioners are original defendants No. 1 and 2. The respondents No. 1 to 5 filed suit for partition and separate possession against present petitioners and the respondent No. 6 – Padmakar. The respondents No. 1 to 5 are the minor sons, daughter and wife of the respondent No. 6 i.e. ( 2 ) original defendant No. 3. They challenged sale transaction between the petitioners and the respondent No. 6, alleging that the sale was effected without any legal necessity and, therefore, the sale-deed was not binding on them. They submitted that the respondent No. 6 executed the sale-deed No. 2709/2002 in collusion with them and for immoral purposes, without there being existence of any legal necessity. They alleged that the respondent No. 6 is addicted to vices. The petitioners denied all the material averments in their written statement (Exh-28). The written statement was filed on 18th October, 2007. The respondent No. 6 appears to be consenting party and, therefore, there is prima facie material to infer collusion between him and the respondents No. 1 and 2 i.e. plaintiffs. The petitioners filed amendment application on the ground that they desired to add alternate plea because their vendor i.e. the respondent No. 6 was entitled to alienate the suit land being its exclusive owner. According to them, the suit land was not held by the respondent No. 6 (defendant No. 3) as ancestral property or property of joint Hindu family, but it was his self-acquired property. The learned Civil Judge rejected their amendment application on the ground that the nature of the pleadings was likely to be changed. ( 3 ) 3. Having heard learned counsel for the petitioners and on due consideration of the reasoning of the learned Civil Judge (J.D.), it is amply clear that the impugned order is rendered for the reason that the pleadings of the plaintiffs were likely to be changed. The learned Civil Judge also noticed that filing of such application was with intention to prolong the matter. The counsel for the petitioners, however, submits that they are ready to abide by any time-frame for final hearing of the suit if the amendment is allowed. 4. It is well settled that the defendant is eligible and entitled to raise alternate pleas in the written statement. The only restriction is that such defences shall not be mutually destructive to each other. Needless to say that inconsistent pleas can be raised by the defendants in support of the claim. The petitioners denied absence of legal necessity and alleged that the sale was effected by the defendant NO. 3 (respondent No. 6) on account of legal insistence. It does not, however, mean that they cannot support the sale transaction for the reason that the suit property was self-acquired and as such, the defendant No. 3 was competent to alienate the same notwithstanding presence or absence of legal necessity. The impugned order appears to be ( 4 ) arbitrary and illegal. 5. Taking overall view of the matter, the impugned order is set aside. The petition is accordingly allowed. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp3251-10