JAGGA SINGH Vs. HARPAL SINGH

JUDGEMENT

(1.) PLAINTIFF -petitioner filed a suit for possession based on title, on April 6, 1991. Written statement was filed by the defendant on 4. 10. 91.

(2.) AFTER the parties concluded their evidence and the case was fixed for arguments, an application under Order 6 Rule 17 of the Code of Civil Procedure was moved by the defendant on 2. 11. 93 seeking amendment of the written statement. Plea sought to be taken by way of amendment was that the defendant-respondent had become owner of the suit property by adverse possession, being in possession thereof since 1972. The application was allowed by order dated 11. 2. 94. Feeling aggrieved thereby, the plaintiff has filed the present revision.

(3.) ACCORDING to the learned counsel, plea of adverse possession sought to be taken by way of amendment of written statement was mutually destructive of the plea earlier taken in the written statement and the same could not have been allowed by way of amendment of written statement. Learned counsel for the petitioner in support of his submission relied upon Khushi v. Mohd. Ishaq. (1992-1)101 P. L. R. 611. The learned counsel also submitted that application of the defendant-respondent for production of secondary evidence to prove the agreement of sale had been dismissed and it was thereafter that the present application seeking amendment of written statement was filed. In Khushi's case (supra), this Court has held that the plea that the defendants have become owners by adverse possession cannot be permitted to be raised by seeking amendment of written statement as such a plea is totally consistent with the plea originally taken. Consequently application for amendment of written statement was dismissed. In the present case, as noticed above, defendant raised a plea in the written statement earlier filed in the year 1991 that he was in possession of the property in dispute in part performance of an agreement executed by the brother of the plaintiff as a co-sharer. In the other words, defence taken by him was that he was in permissive possession of the property. Once the defendant has taken a plea that he was in permissive possession of the property, in my view, it is not open to him to now contend that he was in adverse possession of the property. If such a plea is allowed to be raised by way of amendment of written statement, it will require fresh trial of the entire suit as the witnesses of the plaintiff have not been examined or cross-examined in regard to the aforesaid plea nor the defendant has produced evidence on the said plea. The plea now sought to be raised being totally inconsistent with the original plea raised in the case cannot be permitted to be raised by way of amendment of written statement. M/s. Ganesh Trading Co. v. Moti Ram, (1978) 80 P. L. R. 458 (S. C.), relied upon by counsel for the respondent has no application to the facts of the present case. It is undoubtedly open to the plaintiff or the defendant to take inconsistent or mutually destructive pleas in the beginning but such pleas cannot be permitted to be raised by seeking amendment of pleadings.