1 wp 5854.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5854 OF 2011 Ram Madhav Sathe .. Petitioner Versus Janardhan Limbaji Sathe and others .. Respondents Shri S. P. Urgunde, Advocate for the Petitioner. Shri S. R. Barad, Advocate h/f Shri V. D. Salunke, Advocate for the Respondent Nos. 1 to 3. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH NOVEMBER, 2011. PER COURT : . The petitioner is one of the defendant. The plaintiff filed a suit for possession of encroached area against the defendants. The defendants are real brothers interse. The written statement was filed jointly by all the defendants controverting the case of the plaintiff. Thereafter, issues were framed. The plaintiff led the evidence. The present petitioner moved an application for amendment contending therein that there is partition interse between the defendants and his land is not covered under the encroached area as is alleged. The said application is rejected. 2 wp 5854.11 Aggrieved thereby the present petition is filed. 2. Shri Urgunde, the learned counsel for the petitioner submits that the amendment in the written statement has to be more liberally construed than that of the plaint. For the said purpose, the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of SERGI Transformers Explosion Prevention Technologies Pvt. Ltd. Vs. CTR Manufacturing Industries Ltd and others reported in 2011 (4) All M. R. 573. The learned counsel further contends that the amendment sought is not inconsistant, and as such the said amendment should have been allowed. For the said purpose the learned counsel relies on the judgment of the Apex Court in the case of B. K. N. Pillai Vs. P. Pillai reported in 2000 (1) SCC 712. The learned counsel further contends that the fact of partition was intimated to the advocate of the defendants, but the advocate by mistake did not incorporate the same in the written statement. Even the advocate has accepted this mistake. The learned counsel further contends that when the land of the petitioner does not come within the encroached area as is alleged by the plaintiff, then in such circumstances, the said amendment is material and relevant for the effective adjudication of the dispute. 3 wp 5854.11 3. The learned counsel for the respondent Nos. 1 to 3 supports the order. 4. With the assistance of learned counsel I have gone through the pleadings, the amendment application and the order impugned in the present writ petition. 5. The proposition that the amendment in the written statement has to more liberally construed than that of the plaint need not be dilated. The same is a settled proposition of law. Even by way of amendment additional plea can always be allowed to be given. 6. The amendment sought by the petitioner is at a late stage. The plaintiff has concluded his evidence. Moreover, the said amendment which is sought would not be relevant for the effective adjudication of the lis. The written statement was filed jointly by all the three defendants and the application for amendment was filed independently by the petitioner. The petitioner is seeking amendment in the written statement filed by all the three defendants jointly. The other two defendants have not joined with the petitioner in filing the amendment application. 4 wp 5854.11 7. Be that as it may, even the amendment sought would not be relevant and material for the effective adjudication of the dispute. Whether the partition interse between the defendants has taken place or not cannot be a subject matter of issue in the present suit. The same would be a internal matter between the defendants. The issue involved is whether there is an encroachment made by the defendants in the land of the plaintiff and whether the plaintiff is entitled for possession. If the Court comes to the conclusion upon the evidence adduced about encroachment, then the possession would be delivered as per the decree passed and the area shown as encroachment. If the petitioner feels the said area would not come within his land, then he has no need to worry as possession is required to be delivered of encroached area. 8. In the light of the above, the Trial Court has properly exercised the discretion in rejecting the amendment application. No case for interference is made out, as such, the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Nov. 11