ORDER
S.B. Deshmukh, J.
1. Heard learned Counsel Mr. S.V.Gangapurwala, instructed by Mr. Pushkar Shendurnikar, Advocate for the Petitioner and the learned Counsel Mr. Mahesh Patil for legal heirs of Respondent No. 1 and for Respondent No. 2. Respondent Nos. 4, 5 and 8 are deleted. None appears for Respondent Nos. 3, 6 and 7 despite service.
2. Challenge, in this writ petition, is to the order passed by the first Appellate Court below Exhibit-53 on 26th August, 2005, in Regular Civil Appeal No. 171 of 2001, pending on the file of learned District Judge at Dhule. It was an application seeking amendment to the written statement filed by the Appellant there in that appeal, who was original defendant No. 7 in Special Civil Suit No. 27 of 1999.
3. A resume of few relevant facts would suffice.
(a) Regular Civil Suit No. 408 of 1994 was filed by one Pitambar Bhatu Chaudhary and another against Kashinath Yashwant and seven others. This suit was filed on 14th October, 1994. It is alleged in the suit that plaintiffs Pitambar and Smt. Chindhabai are brother and sister. They were having joint Hindu family along with their deceased father Bhatu Sakharam. Deceased Bhatu Sakharam had owned agricultural lands situated within the vicinity of Dhule town, which are described in the suit. Deceased Bhatu was having two wives viz. Sitabai and Janakabai. Plaintiffs are children of deceased Bhatu from Janakabai. Deceased Bhatu married with Sitabai about 68 years prior to the filing of the suit. Deceased Bhatu and Sitabai were not having issue and, therefore, before about 63-64 years, Bhatu married with Janakabai. Deceased Bhatu was having illicit relations with a lady viz. Baijabai D/o Bhavadu Koli. According to the plaintiffs, Baijabai was mistress of deceased Bhatu. Deceased Bhatu had executed settlement deed on 3rd March, 1949. This settlement deed was in respect of land Survey No. 420/1-A, admeasuring 3 Acres. By virtue of this settlement deed, limited interest was created in favour of Smt. Baijabai. According to the plaintiffs, deceased Bhatu was not having legal right to execute such settlement deed. It was a consideration for illicit relation with said Baijabai and such finding was recorded by the first Appellate Court in Regular Civil Appeal No. 324 of 1982 dated 9th April, 1984. Bhatu had died at Dhule on 25th May, 1975. Deceased Baijabai was not permitted by the settlement to create any encumbrances or mortgage in relation to land Survey No. 420/1-A. Alienation of this property by Baijabai was prohibited. It is also mentioned in this suit that Baijabai illegally transferred the suit property to defendant Jambhale. Other transactions in relation to suit property are referred in para No. 4. A statement is made in para 5 that all these transactions are illegal and not binding on the plaintiffs. Baijabai died on 13th October, 1991. In para 7 of the suit, a reference is made to the judgment of the learned District Judge, Dhule in Regular Civil Appeal No. 324 of 1982, dated 9th April, 1984. According to the said settlement deed land was given to deceased Baijabai only for maintenance and after her death, it was to be reverted back to deceased Bhatu and now to his legal heirs i.e. the plaintiffs and the plaintiffs are entitled to seek possession of the said property. With these averments, possession of the suit property was sought in Regular Civil Suit No. 408 of 1994. Permanent injunction was also sought for, with mesne profits. In this suit, defendant No. 7 is one M/s Hanumandas Vallabhdas & Sons, Dhule, a partnership firm through one Mr. Sharad Nandlal Agrawal.
(b) During the pendency of Regular Civil Suit No. 408 of 1994, application for amendment was filed on behalf of the plaintiffs. This application was allowed and consequently the said suit was converted and registered as Special Civil Suit No. 27 of 1999. After recording evidence, the learned Civil Judge, Senior Division, Dhule decreed the suit for possession against the defendant No. 7. Perpetual injunction regarding construction is also issued against the defendant No. 7 till recovery of the possession. Sale deeds dated 19th October, 1987, 25th August, 1988 and 25th August, 1989 have been declared as null and void and not binding on the plaintiffs. Inquiry for mesne profits is also ordered. Costs were also awarded in favour of the plaintiffs. This judgment and decree is passed by the learned Civil Judge, Senior Division, Dhule on 16th April, 2001.
(c) The decree passed in Special Civil Suit No. 27 of 1999 is challenged by the original defendant No. 7 by filing an appeal Under Section 96 of the Code of Civil Procedure. This appeal is registered as Regular Civil Appeal No. 171 of 2001 in the Court of learned District Judge, Dhule. In this appeal, legal heirs of original Plaintiff No. 1 viz. Shri Pitambar Bhatu and Smt. Chindhabai Shamlal have been brought on record.
(d) The Defendant No. 7/ Appellant in Civil Appeal No. 171 of 2001 filed an application under Order VI Rule 17 of the Code of Civil Procedure, seeking amendment to the written statement. This amendment application (Exhibit-53) is filed on 5th August, 2005. Learned District Judge, Dhule, after hearing the parties, has rejected this application Exhibit-53 by the order passed on 26th August, 2005.
4. The suit property in Regular Civil Suit No. 408 of 1994, converted to Special Civil Suit No. 27 of 1999, pertains to agricultural landed property i.e. Eastern portion of Survey No. 420/A-1 admeasuring 0 Hectare 60 Ares and from Southern side admeasuring 0 Hectare 60 Ares, as described in para 1 of the plaint. Thus, the land Survey No. 420/A-1 in its totality comes to the extent of 1 Hectare 20 Ares and is the subject matter of the suit. It would be necessary to refer to other events/ proceedings in relation to the suit property.
(i) On 3rd March, 1949 registered settlement deed was executed by deceased Bhatu in favour of Baijabai, for her maintenance. After her demise the land was to revert back to deceased Bhatu or his legal heirs. This document is on record at Exhibit-148. This document is entered in the record of rights under mutation entry No. 134.
(ii) Bhatu died on 25th May, 1975 at Dhule.
(iii) Special Civil Suit No. 23 of 1976 was filed by plaintiffs in Special Civil Suit No. 27 of 1999, challenging the settlement deed dated 3rd March, 1949 as invalid. Declaration was also sought that after the demise of Baijabai the suit land, in that suit, reverts back to Sitabai and the plaintiffs in that Special Civil Suit No. 23 of 1976. This Special Civil Suit No. 23 of 1976 was filed for declaration and possession, against Baijabai and one Mr. Kashinath. Mr. Kashinath is also defendant No. 1 in Special Civil Suit No. 27 of 1999. This Special Civil Suit No. 23 of 1976 is dismissed. However, the plaintiffs, in that suit, had filed Regular Civil Appeal No. 324 of 1982 and the said appeal was allowed on 9th April, 1984. The first Appellate Court, in that judgment and decree, held that deceased Bhatu was not competent to execute the settlement deed (arrangement deed, or gift-deed) dated 3rd March, 1949 in relation to suit property in favour of deceased Baijabai. The declaration was also granted that it was null and void. Copy of that judgment and decree is placed on record at Exhibit-137 and 138 of Special Civil Suit No. 27 of 1999.
(iv) Baijabai and Kashinath, who were defendants in Special Civil Suit No. 23 of 1976 and party to Regular Civil Appeal No. 324 of 1982, had filed second appeal No. 537 of 1984 in the High Court, however, it was summarily dismissed on 17th December, 1984. This order, passed by the High Court, is also placed on record in the suit at Exhibit-139. Thus, the judgment and decree passed by the learned District Judge in Regular Civil Appeal No. 324 of 1982 has attributed finality.
(v) Baijabai sold the suit property for Rs. 15,000/-to Kashinath Yashwant Jambhale, who is defendant in Special Civil Suit No. 27 of 1999. This transaction is dated 17th March, 1981. The document is on record at Exhibit-129.
(vi) Kashinath Jambhale sold the said land for Rs. 90,000/-on 19th October, 1987 to Defendant Nos. 2 to 6 in Special Civil Suit No. 27 of 1999. This transaction is entered in the mutation entry No. 15367 and is on record. The defendant No. 4 Kishor Patil sold his 1/5th share from the suit land to Defendant Nos. 2, 3, 5 and 6 by registered sale deed for a sum of Rs. 23,000/- on 25th May, 1988. The document pertaining to this transaction is at Exhibit-142.
(vii) The Defendant Nos. 2, 3, 5 and 6 sold the western half portion of the suit land for a sum of Rs. 1,25,000/-to M/s Hanumandas Vallabhdas & Sons, Dhule, original defendant No. 7, on 25th August, 1989. The document is at Exhibit-143.
(viii) The defendant Nos. 2, 3, 5 and 6 sold the eastern half portion of the suit land by a regstered sale deed for a sum of Rs. 1,25,000/- to M/s Hanumandas Vallabhdas & Sons, Dhule i.e. defendant No. 7, on 25th August, 1989. The document pertaining to this transaction is on record at Exhibit-144.
(ix) It is to be recalled that deceased plaintiff Pitambar Bhatu had issued a public notice on 29th June, 1975. By this public notice, it was informed to the public at large that the land given under the settlement deed to Baijabai, was given with limited interest. The possession was sought from Baijabai and Kashinath Jambhale.
(x) Baijabai died on 14th October, 1991.
(xi) It is also a fact that Special Civil Suit No. 24 of 1996 was filed by the present Petitioners against ten defendants, in the Court of learned Civil Judge, Senior Division, Dhule for recovery of amount of Rs. 1,20,000/- i.e. the consideration of the sale deed and damages of Rs. 10,000,00/-. It is pertinent to note that the Respondent Nos. 3 to 8, in this writ petition, were defendants in the said Special Civil Suit No. 24 of 1996. Special Civil Suit No. 24 of 1996 is partly decreed. The learned Counsel for the Respondent submits that decree came to be passed for recovery of the amount, however, damages were not granted. The Plaintiff in Special Civil Suit No. 24 of 1996 (Petitioner in this writ petition), filed first appeal in this High Court. This first appeal was bearing stamp No. 16674 of 2001. The learned Counsel for the Respondents submits that this first appeal stamp No. 16674 of 2001 is dismissed in default. Learned Counsel for the Petitioner submits that application for resotration of the first appeal is filed and it is being prosecuted by the present petitioner.
(xii) One more Miscellaneous Application No. 1 of 2003 came to be filed in this Court for transfer of Civil Appeal No. 171 of 2001 from the file of learned District Judge, Dhule to this High Court for consideration along with first appeal stamp No. 16674 of 2001. This miscellaneous application also came to be dismissed by this Court, however, for the reason that the first appeal stamp No. 16674 of 2001 came to be dismissed in default.
5. The learned Counsel for the Petitioner has pointed out, from the order passed by the learned District Judge below Exhibit-53 that, the rejection of the application is mainly on three grounds -(i) that the application filed by the defendant is against the proviso of Order VI Rule 17 of the Code of Civil Procedure, (2) the Defendant No. 7 had filed a suit for return of amount of consideration and damages against his vendors and, therefore, he cannot seek an amendment of adverse possession, (e) the defendant is trying to procrastinate the litigation and the defendant No. 7, is not admitting and accepting the ownership of the plaintiffs and, therefore, not entitled to seek amendment in relation to the plea of adverse possession. According to the learned Counsel for the Petitioners, this application, seeking amendment, ought to have been allowed.
6. Mr. Gangapurwala, in support of his argument, relied on a judgment of learned Single Bench of this Court in the matter of Hari Shankar Singhania and Ors. v. Dr. Gaur Hari Singhania and Ors. reported in 2003 (1) ALL MR 548. In the matter of Hari (supra) reference is made to the judgment of the Apex Court . It is held by the Apex Court that – “It is no doubt true that courts would as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the court to order it, if that is required in the interest of justice. In the matter of Hari (supra) suit was instituted on 18th April, 2000. In para 5 of the plaint, it was stated that firm (M/s Juggilal Kamal Bankers) was dissolved with effect from 19th March, 1987. Terms were agreed and recorded in a deed of dissolution dated 26th March, 1987. According to Clause 4 of the deed of dissolution, parties have agreed to distribute the assets of the partnership as soon as possible and the parties would strive to accomplish it by 31st March, 1987. The said date, however, was not final cut off date. Thereafter, para 26 of the plaint is also referred. The learned Single Bench of this Court has observed that by means of an amendment, plaintiffs are not seeking to add any new prayer. They are only trying to add certain facts. The facts of the case on hand, are altogether different. The ratio of this judgment is not helpful to the Petitioner. The learned Counsel for the Petitioner referred to the judgment of learned Single Bench of this Court in the matter of Mohan S/o Maluram Agrawal v. Kaladevi Wd/o Sawarmal Agrawal and Anr. reported in 2007 (2) Mh.L.J. 60. In this case, the learned Single Bench of this Court has referred to the judgment of the Apex Court reported in AIR 2002 SC 3369. Based on the judgment of the Apex Court it is held that four years delay in moving the amendment application does not disentitle the party seeking amendment. It is also held that plaint filed prior to 1st July, 2002 i.e. the date on which the Amendment Act came into effect, is governed by the unamended provisions laid down under Order VI Rule 17 of the Code of Civil Procedure. Facts in this case are different. However, it is true that in the case on hand also, the original written statement is filed prior to the Amendment Act made enforceable from 1st of July, 2002. Thus, in the present case, amendment application filed by the defendant needs to be considered within the provision laid down under Order VI Rule 17 of the Code of Civil Procedure before enforcement of the Amendment Act i.e. 1st of July, 2002.
7. The learned Counsel for the Petitioner, also relied on a judgment of the Apex Court in the matter of Baldev Singh and Ors. v. Manohar Singh and Anr. . It is held by the Apex Court that inconsistent defences can be raised in the written statement although the same may not be permissible in case of the plaint. Question of delay of three years in filing application for amendment in written statement was considered and it was held that on this ground the application cannot be rejected when no serious prejudice is shown to have been caused to the plaintiff so as to take away any accrued right. Factually, the amendment application was filed by the defendant in the matter of Baldev Singh when the suit was pending in the trial Court and plea of limitation was raised in the earlier written statement. The Apex Court noted that the amendment was sought for elaboration of the case made out in the written statement filed earlier. Learned Counsel for the Petitioner submits that merits of the amendment cannot be examined by the Court while considering the application for amendment. In support of this proposition, he relied on a judgment of the Apex Court in the matter of Rajesh Kumar Aggarwal and Ors. v. K.K.Modi and Ors. .
8. Learned Counsel for the Respondent Mr. Patil, in support of his submission relied upon a judgment of the Apex Court in the matter of Union of India v. Pramod Gupta (dead) by L.Rs., . The Apex Court, in the matter of Union of India (supra) held in para 135, as under:
135. Delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings. The High Court neither assigned sufficient or cogent reasons nor applied its mind as regards the relevant factors while allowing the said application for amendment. It has also not been taken into consideration that the application for amendment of pleadings might not have been maintainable in view of statutory interdict contained in Sub-section (2) of Section 25 of the Act, if the same was applicable. In the case of Union of India (supra), it is significant to note that, reference of Section 25 of Land Acquisition Act is made by the Apex Court. It is held that the amendment is not permissible to the application in view of Section 25 of the Land Acquisition Act, 1894. Mr. Patil, the learned Counsel also relied on a judgment of the learned Single Bench of this Court in the matter of Purushottam alias Nana U. Sanyasi v. A.N.Jog and Ors. . In the matter of Purushottam (supra) it is held by this Court that when an application for amendment is made with the intention or purpose to defeat the right already accrued in favour of the other side not only the point of limitation but even the justification for delay, if any, disclosed by the applicant ought to be considered and in the absence of any such justification an adverse inference will have to be drawn against the applicant which could even justify the rejection of the application for amendment. This Court further observed that every party to the litigation has right to defend his right up to the last stage of litigation and that right cannot be denied to any party, however, that does not mean that any of the parties to the litigation has right to prolong the matter or to delay the matter even by taking shelter of provisions of law. The Courts cannot be parties to any sort of tactics on the part of the litigants to delay proceedings before the Court and any attempt in that regard should not only be discouraged but should be penalised.
9. Mr. Patil, then relied on a judgment of the Apex Court in the matter of Karnataka Board of Wakf v. Government of India and Ors. reported in 2004 (4) Supreme 631. In the matter of Karnataka Board (supra) it appears that three suits were filed by the first respondent therein, in each of the cases seeking for declaration that the notification issued by the Karnataka Board of Wakf i.e. the Appellant before the Apex Court, showing some of the defendants to be illegal and void or in the alternative, to declare the first respondent as owner of the suit properties on the ground that they have perfected their title by adverse possession and consequential relief for permanent injunction was sought. The claim made by the first respondent therein, was that they acquired the suit property under the Ancient Monuments Preservation Act, 1904. Ancient Monuments Preservation Act has been published in that regard and the suit property had been entered in the Register of Ancient Protected Monuments incharge of the Executive Engineer. Thereafter, the Government of India enacted the Ancient Monuments And Archaeological Sites and Remains Act, 1958 and the suit property came to be under the management of the Department of Archeological Survey, Government of India. It is asserted by the first respondent that in all the relevant records, the name of the Government of India has been shown as the owner of the suit property and that they came to know that the defendants got published a notification No. KTW/531/ASR-74/ 7490 dated 21.4.1976 showing that the suit property as having been declared as “Wakf Property” in terms of Section 26 of the Wakf Act, 1954 and was also stated to have been published in the Gazette. Inasmuch as the suit property since inception was under the ownership of the plaintiff with lawful possession thereof, defendants could not have made any claim thereto nor get the same declared as Wakf property. The defendants contested this claim of the plaintiffs in the original suits and that after following due procedure publication has been made in the Karnataka Gazette in terms of Section 67 of the Karnataka Land Revenue Act and the order passed by the concerned officer is binding on the plaintiff and, therefore, the plaintiff cannot claim any ownership on the ground of adverse possession. The suit came to be decreed by the trial Court and the appeal was dismissed by the Division Bench of the High Court. The Apex Court ultimately, referring its earlier pronouncements, as noted in para 12, held that “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”
10. Mr. Patil also relied on a judgment of the Apex Court in the matter of Arundhati Mishra (Smt) v. Sri Ram Charitra Pandy . The Apex Court has held that the pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced It is significant to note that in the matter of Arundhati (supra) on 15th March, 1971, the Appellant therein, had got issued a notice Under Section 106 of the Transfer of Property Act determining the tenancy for default committed in payment of the rent. Suit notice was issued in the year 1978 on the ground that the denial of the Appellants title constitutes forfeiture of the tenancy which the respondents had with the appellant. The Respondent reiterated in his written statement that he is the real owner and remained in possession as owner of the suit house and the appellant is only Benamidar. The Respondent also later filed application under Order 6 Rule 17 of Civil Procedure Code to add para 21-A claiming alternatively compensation for the improvements made by him. Framing appropriate issues and on adduction of evidence, the trial court found that the appellant has title to the suit property, by denial of the title, the respondent forfeited his tenancy and decreed the suit. Pending first appeal, the respondent filed another application on 30th March, 1989 for amendment of the written statement setting up the plea of adverse possession. The Appellate Court rejected the application, considering the case on merits and confirmed the decree of the trial Court. In the second appeal, before the High Court, the learned Single Judge considered and allowed the application for amendment and set aside the findings of the courts below and remitted the case to the trial court for fresh trial. In other words, the amendment application under Order 6 Rule 17, setting up a plea of adverse possession, was allowed by the High Court in second appeal, which was not approved of by the Apex Court.
11. Mr Patil, learned Counsel for the Respondents, also relied on a judgment of the Full Bench of Punjab and Haryana High Court in the matter of Banta Singh Ganga Singh and Ors. v. Smt. Harbhajan Kaur and Ors. reported in AIR 1974 P. & H. 247. In the matter of Banta Singh (supra) also, application for amendment under Order 6 Rule 17 was filed in second appeal. It is held by the Full Bench, in the facts of that case, that the plaintiff/ Respondent No. 1 should not have been allowed to amend the plaint, at the belated stage.
12. The pleadings can be permitted to be amended in view of the provision laid down under Order VI Rule 17 of the Code of Civil Procedure. Status of the party seeking amendment has to be considered by the Court. The plaintiff, in some cases, may seek amendment to his own pleadings. In a given facts and circumstances, the defendant/s may also move the Court seeking amendment to the written statement, which is earlier filed in the suit. In accordance with the provision laid down under Order VI Rule 17, before amendment, which is applicable to the facts and pleadings obtaining in the case on hand, it can be said that the amendment to the pleadings would be made at any stage of the proceedings. Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. It is equally settled law that the pleas in the written statement may be alternative, or on additional ground or in a given case to substitute the original plea. Instances are not wanting as noted by the Apex Court in the case of Arundhati (supra) that pleadings are permitted even when second appeal is pending. Equally, it was refused. Each case depends on its own facts and circumstances. The Court has to apply the principles governing amendment under Order VI Rule 17 of the Civil Procedure Code, to the facts obtaining in the case.
13. Having considered the conspectus of the judicial pronouncements it is apropos to refer some facts obtaining in the case on hand. All facts are detailed in the foregoing paragraphs of this judgment. Regular Civil Suit No. 408 of 1994 was filed by the original plaintiff viz. Mr. Pitambar and Smt. Chindhabai. This suit was filed on 14th October, 1994. On account of the amendment, at the instance of the original plaintiffs, this suit was renumbered and registered as Special Civil Suit No. 27 of 1999. In this suit, decree came to be passed by the trial Court on 16th April, 2001. Present petitioner was obviously defendant No. 7 in the suit. Present Petitioner, thereafter, filed Regular Civil Appeal No. 171 of 2001. It is also undisputed fact, on record, that the present Petitioner, after realising that he is being duped by the vendor, had filed Special Civil Suit No. 24 of 1996 for return of consideration and compensation. The Petitioner persuaded the Special Civil Suit No. 24 of 1996. That suit ended partly in favour of the petitioner/ plaintiff. The petitioner/ plaintiff did not stop there. Being aggrieved by the part dismissal of the suit, he filed first appeal stamp No. 16674 of 2001, in this Court. The Petitioner, thereafter, also is pursuing the said dismissed first appeal stamp No. 16674 of 2001, in this Court. Thus, petitioner had perceived that the property purchased by him and the transaction in question, is not legal. He had, therefore, resorted to legal recourse, as noted above. On this background, the petitioner filed this application Exhibit-53 on 5th August, 2005.
14. I have perused the explanation tendered for delay, by the petitioner. It is stated by the Petitioner, in para 9 of the application, that his lawyer, who was looking after the suit at Dhule, shifted to Aurangabad. Another reason assigned by the petitioner is that of transfer of the Regular Civil Appeal No. 171 of 2001 to this Court, to be heard along with first appeal stamp No. 16674 of 2001. On these two grounds, the delay is tried to be explained. Learned Counsel for the Petitioner submits that the transfer of suit from one Court to other Court at Dhule also is a ground for moving the application for amendment, at belated stage. I am not convinced with all these explanations tendered by the Petitioner. Firstly, shifting of lawyer cannot be said to be a just and sufficient reason. The moment, petitioner came to know that his lawyer has shifted to some other place, he should have made arrangements to lookafter the progress of the Regular Civil Appeal NO. 171 of 2001, to file an application seeking amendment, if at all, he was to do so. Secondly, transfer of suit from one court to another is usual phenomena in relation to the proceedings pending in the Court. Said transfer cannot be a ground for moving such application at belated stage. Even for consideration of such ground, petitioner could have given the dates and other factual data as to in which court the suit was pending and how long it was pending in the Court, when it transferred etc. It also appears from para 9 that such ground is not emanating from said paragraph. The pendency of two appeals, one in the High Court and the another pending in the district Court also cannot be a ground for filing the application at such belated state.
14. It is true that merits of the amendment sought by the petitioner, are not to be examined by the Court at the stage of consideration of said amendment application. However, cursory look to the earlier pleadings and the proposed amendment would suffice the purpose. In the original written statement, petitioner claimed ownership and title by virtue of the registered sale deed in relation to the suit property. On the premises of filing of various proceedings petitioner did not try for amending the pleadings. Ultimately, the petitioner came with the amendment i.e. plea of adverse possession. The Petitioner has not made a statement regarding his renouncement of title and acquisition of the title by principles of adverse possession. Special Civil Suit No. 23 of 1976 was filed by the plaintiffs (in Special Civil Suit No. 27 of 1999) i.e. the present Respondent Nos. 1 and 2, challenging the settlement deed dated 3rd March, 1999, as invalid. It is to be recalled that this settlement deed is the basic document in relation to the controversy between the parties. The declaration was sought in Special Civil Suit No. 23 of 1976 to the effect that after the demise of Baijabai, the suit property would revert back to Sitabai and the plaintiffs in that Special Civil Suit No. 23 of 1976. Suit No. 23 of 1976 was filed for declaration and possession against Baijabai and one Kashinath, who was also defendant in Special Civil Suit No. 27 of 1999. This Civil Suit No. 23 of 1976 was dismissed. However, the plaintiff, in that suit, had filed Regular Civil Appeal No. 320 of 1982. This appeal was allowed by the first appellate Court on 9th April, 1984 and it was held that deceased Bhatu was not competent to execute the settlement (arrangement deed/ gift deed) dated 3rd March, 1949 in relation to the suit property in favour of deceased Baijabai. The declaration was also granted that it was null and void. This decree, passed by the first appellate Court, has attributed finality when Second Appeal No. 97 of 1984, filed in this Court, came to be summarily dismissed on 17th December, 1984. This second appeal was filed by Baijabai and Kashinath, who were defendants in Special Civil Suit No. 23 of 1976. Thus, rights, which were accrued in favour of Bhatu and present Respondent Nos. 1 and 2, by the judgment and decree in Regular Civil Appeal No. 324 of 1982, was very well within the knowledge of the present petitioner. This amendment, at the belated stage, seems to have been sought by the petitioner to take away the accrued rights in favour of the Respondents. Such amendment, taking away accrued rights in favour of the party, against whom amendment is sought, cannot be permitted. The judgment and decree passed in Regular Civil Appeal No. 324 of 1982, which was challenged in second appeal No. 537 of 1984, and on dismissal of the same, which was not further challenged, had attained finality. This finality cannot be permitted to be disturbed by allowing such plea of the present petitioner, after lapse of considerable period of time. For all these reasons, in my considered view, the petitioner is not entitled to seek amendment. It is true that the first Appellate Court is not justified in holding that the provision of Order VI Rule 17 of the Civil Procedure Code is applicable to the facts/ pleadings of the present case. Therefore, for the reasons recorded in this judgment, in my view, petitioner is not entitled for seeking such amendment to the written statement.
15. In the result, writ petition needs to be dismissed and accordingly stands dismissed with no order as to costs. Ad-interim relief, if any, granted earlier by this Court, stands vacated.
16. At the stage, learned Counsel for the Petitioner seeks stay to the order passed by this Court. Ad-interim relief was granted by this Court for the first time on 8th February, 2007 despite the fact that the writ petition was filed in this Court on 20th September, 2005. Ad-interim relief further was continued from 8th February, 2007 till today. Learned Counsel for the respondents submits that the suit is of 1994. Appeal pending before the first Appellate Court is of the year 2001. In this view of the matter, oral application for stay, by the petitioner, stands rejected.