1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Writ Petition No. 1835 of 2007 (Jawaharlal Ramkisan Patalbansi & ors. Vs. Hiralal Ramnarayan Patalbansi & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Apurv De, Adv. for the petitioners. Mr. A.S. Chandurkar, Adv. for the R- 1,9 and 10. CORAM : Smt. Vasanti A. Naik, J. DATE : 19 th November, 2008 Heard the learned counsel for the parties. By this petition, the petitioners impugn the order passed by the Civil Judge, Jr. Dn., Murtizapur, on 28/6/2006 below Exh. 51, rejecting the application filed by the petitioners for amendment of the plaint. Though a copy of the plaint is not annexed to the petition, I have perused the same as a copy of it is handed over to the Court at the time of the hearing of the matter, by the learned counsel for the respondents. The plaintiffs had filed a suit for partition and separate possession of their 1/3rd 2 share in the suit properties. By the amendment application, the plaintiffs sought to plead that the defendant nos. 2 and 3 had admitted the possession of the plaintiffs over the suit properties and the defendant no.1 had created third party interest in the suit properties during the pendency of the suit, by selling some of the suit properties to defendant nos. 4 to 8, with the consent of defendant nos. 9 and 10. By the proposed amendment, the plaintiffs sought to plead that they were in possession of the suit property and this fact was supported by the defendant nos. 2 and 3. The trial Court, by the impugned order dated 28/6/2006, dismissed the application. I have perused the plaint, the application, the reply filed thereto and the impugned order dated 28/6/2006. A perusal of the plaint discloses that the plaintiffs did not assert that they were in possession of any part of the suit properties and had, in fact, pleaded in paragraph 2 of the plaint that they had asked the defendant no.1 to partition the suit property and give separate possession of their 1/3rd share in the suit property, but the 3 defendant no.1 had refused to give separate possession of their 1/3rd share to them. A prayer for grant of a decree of partition and separate possession was also made. By the proposed amendment, the plaintiffs desired to plead that the plaintiffs were in possession of the certain suit properties and their possession was admitted by the defendant nos. 2 and 3. The stand taken by the plaintiffs in the plaint and the amendment application, was contradictory. In fact, the stand taken by the plaintiffs changes the nature of the suit which also consisted of a prayer for a separate possession. The trial Court, therefore, rightly held that the plaintiffs were not entitled to take such a contradictory stand by amending the plaint. The Court also found that such recourse was also not permissible in view of the provisions of the Evidence Act. The reasons recorded by the trial Court for rejecting the amendment application are just and proper. No fault can be found with the order passed by the trial Court on 28/6/2006. The order does not suffer from any error much less jurisdictional error, so as to interfere the same 4 in exercise of jurisdiction under Article 227 of the Constitution of India. The writ petition is, therefore, dismissed with no order as to costs. JUDGE RMP