JUDGMENT
Chandramauli Kr. Prasad, J.
1. Plaintiffs-petitioners, being aggrieved by the order dated 5.10.2005 passed by the Munsif, I, Begusarai in T.S.No. 96 of 1997 acceeding the prayer of the defendant-opposite party to amend the written statement, has preferred this application.
2. Short facts, giving rise to the present application, are that the plaintiffs filed the suit for declaration of title and recovery of possession as also for permanent injunction and mesne profit. According to the plaintiffs, Achhe Mahto and Chanchal Mahto had purchased 6 katha 9 dhoors of land of Survey Plot No. 278 situated at Mauza Cheria Bariarpur by registered sale deed dated 13.6.1930 executed by Jua Barai and came in possession thereof. Sudama Devi, daughter of Achhe Mahto by rgistered sale-deed dated 14.3.1969 sold land of her share in Survey Plot No. 278 measuing 1 katha 12 dhurs to Ramayan Mahto and Hari Mahto sons of Chanchal Mahto. Another daughter of Achhe Mahto Lukhiya Devi sold her share in the said plot to Sumitra Devi plaintiff No. 2 by registered sale deed dated 16.8.1991 and she came in possession thereof. After the death of Chanchal Mahto, his interest in S.P. No. 278 devolved on his two sons. Hari Mahto, full brother of plaintiff No. 1 Ramayan Mahto and son of Chanchal Mahto sold his share to Sumitra Devi plaintiff No. 2 wife of plaintiff No. 1 Ramayan Mahto dated 10.10.1995. In this way, both the plaintiffs who are husband and wife, acquired entire land of Survey Plot No. 278 and came in possession thereof. Their names were mutated in the revenue records of the State and are getting rent receipts from the State of Bihar.
3. The defendant filed the written statement, inter alia, stating that he is owner of Survey Plot No. 226 which is adjacent north of disputed survey Plot No. 278. It denied to have dispossessed the plaintiffs from the suit land on the date alleged by the plaintiffs. In paragraph No. 15 of the written statement, the plea of the defendant is that it never dispossessed the plaintiffs from Survey Plot No. 278 and entire construction and boundary wall made is on Survey Plot No. 226.
4. During the pendency of the suit, plaintiffs filed application for appointment of a survey knowing Pleader Commissioner to assess the actual extent of encroachment/dispossession over Survey Plot No. 278. The Pleader Commissioner submitted the report which indicated that 17 dhoors and 17 dhurkies of Plot No. 278 has been encroached.
5. On the basis of the pleadings of the party, issues were framed and three witnesses on behalf of the plaintiffs were examined. Evidence of plaintiff No. 1 was also recorded in part. Thereafter, on 15.4.2005, defendant filed application seeking amendment in the written statement. The amendment sought for in paragraph No. 15 of the written statement is as follows:
(vi).- That in para 15 of the written statement in the first line the word “the” be substituted by the expression “since the time of ancestor” and in the second line of the same para the expression “of the same” be substituted by expression “over portion of S.P.No. 278 “17 dhoor 16 dhurky and in the same para after the sixth line a fresh line “since last several twelve years” be added and in the seventh line of para 15 after the word hindrance, the expression “several 12 years elapsed and defendants have been coming in uninterrupted contiguous possession over portion of S.P.No. 278 17 Dhoor 16 dhurki without any interference let or hindrance from any corner to the knowledge of plaintiff and their vendors and thereby “be added and in the same para in the eighth line after the word “right” the expression by rule of adverse possession” be added and in the seventeenth line in the same para after the expression “Plot No. 226” the expression “and portion of S.P.No. 278 since long “be added and in the same line the word “any” be substituted by word ‘no’ and in the nineteenth line of para No. 15 of W.S. the expression “by him” be deleted.
6. By reason of the impugned order, the amendments have been allowed and as a result thereof, the plea of the defendant in paragraph No. 15 of the written statement shall be as under:
15.- That, the defendant is continuing in possession of the same since 16.2.19961 to the knowledge of the plaintiff’s vendors and as they had also acknowledged the possession of the defendant and hence the plaintiff has forfeited his right as well by rule of adverse possession and by remaining in uninterrupted possession without any let and hindrance the defendant has perfected his right on 15.2.1973 and the plaintiffs have purchased survey plot number 278 firstly on 16.8.1991 and 10.10.1995 and thus the plaintiffs purchased thirty years after the purchase by the defendant and as such it cannot be Imagined even that the defendants have dispossessed the plaintiffs after thirty years of his purchase. The defendant has not dispossessed from any inch of survey plot No. 278 to the plaintiff and entire construction and boundary wall is on the survey plot number 226. The plaintiff had any reason to make any complaint to the defendant regarding the construction made by him prior to his purchase nor any complain has ever been made by the plaintiff to the defendant.
7. Mr. Pramod Manbansh, learned Counsel appearing on behalf of the petitioners, submits that the amendment allowed had the effect of withdrawing the admission made by the defendant earlier and as such, it is not permissible. He submits that in paragraph No. 15 of the written statement, the defendant had clearly stated that he had not dispossessed the plaintiffs an inch from Survey Plot No. 278 and he made the entire construction and boundary wall over S.P.No. 226. He submits that as a result of the amendment in the written statement the defendant is claiming uninterrupted continuous possession over the portion of S.P.No. 278 having an area of 17 Dhoor 16 Dhurki without any interference, let or hindrance from any corner. He submits that after the report of the Pleader Commissioner, the application for amendment of the written statement was filed malafide. In support of his submission, he has placed reliance on a judgement of the Supreme Court in the case of Arundhati Mishra (SMT) Vs. Sri Ram Charitra Pandey (1994) 2 SCC 29 and my attention has been drawn to paragraph No. 4 of the judgment which reads as follows:
4.- The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. 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 his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant’s acquiescece to it. Thereafter, he remained in open and peaceful possesson and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated March 15, 1971 and not earlier constitutes assertion of adverse possession, the limitation would start running against the appellant only from March 15, 1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to the High Court for disposal on merits according to law. The appeal is allowed but without costs.
8. Reliance has also been placed on a decision of the Supreme Court in the case of M/s Modi Spinning & Weaving Mills Company Ltd and another v. Ladha Ram & Company and my attention has been drawn to paragraph No. 10 of the said judgment which reads as follows:
10.- It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.
9. Mr. V. Nath, learned Counsel appearing on behalf of the opposite party, however, submits that the amendment sought for in the written statement and allowed by the impugned order, is nothing but elaboration of the facts already stated. According to him, inconsitent plea by way of amendment can be allowed. Reliance has been placed on a decision of the Supreme Court in the case of Baldev Singh and others Vs. Manohar Singh and others (2006) 6 SCC 498 and my attention has been drawn to paragraph 16 of the judgement, which reads as follows:
16.-This being the position, we are therefore of the view that inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in the case of plaint. In Modi Spg. and Wvg. Mills Company Ltd. v. Ladha Ram & Company this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the trial court had gone wrong in holding that the defendant-appellants are not allowed to take inconsistent pleas in their defence.
10. Having considered the rival submission, I find substance in the submission of Mr. Manbansh and the decisions relied on support his contention. I have no manner of doubt that inconsistent plea can be raised in the written statement and may be allowed by way of amendment. Further admission made in the written statement can also be explained by way of filing an application for amendment of the written statement. However, in my opinion, the prayer for amendment can not be allowed, if it seeks to displace the plaintiff from the admission made in the written statement. In the case in hand, the defendant is not making inconsistent and alternative pleas or explaining the plea but seeking to displace the plaintiffs completely from the admission made by it in the written statement. In my opinion, same is not permissible. In the written statement, the defendant had clearly stated that it had no concern with Plot No. 278 and actually had not dispossessed the plaintiffs from that plot. By way of amendment defendant withdrew the admission made in the written statement.
11. Now, referring to the authority of the Supreme Court in the case of Baldev Singh (supra) relied on by the defendant, same is clearly distinguishable. On the facts of the said case, the Supreme Court found that amendment sought for did not withdraw the admission. In the present case, I have found that the Court below, while allowing the amendment in the written statement, has permitted the defendant to displace the plaintiffs completely from the admission made by it in the written statement. Hence, this decision in no way, supports the contention of Mr. Nath.
12. As a last resort, Mr. Nath submits that the Court should be liberal in allowing the amendment to subserve the ultimate cause of justice and the Court having allowed the same, same is not fit to be interfered with by this Court in exercise of its revisional jurisdiction.
13. Reliance has been placed on a Division Bench judgement of this Court in the case of Jugeshwar Rai Vs. State of Bihar & Ors 2007 (1) PLJR 327 and my attention has been drawn to paragraph No. 20 of the judgment which reads as follows:
20.- Hence after judicious evaluation of the facts and circumstances as well as the provisions of law and case laws, it is quite apparent that the amendments sought really subserve the ultimate cause of justice being necessary for determining the real question in controversy between the parties as has been correctly found by the learned court below. Furthermore if the defendant (writ petitioner) wants to object to the amended pleadings, he has the right of rebuttal by way of filing additional written statement confined to those amended pleadings, as even the arguments have not started in the said case.
14. Another decision on which reliance has been placed is the decision of the Supreme Court in the case of State of Andhra Pradesh and ors Vs. M/s Pioneer Builder-A.P. & Ors 2007 (1) B.B.C.J. 59 and my attention has been drawn to paragraph No. 20 of the judgment which reads as follows:
20.- Principles governing amendment of pleadings are well-settled. Order VI Rule 17 C.P.C. deals with the amendment of pleadings and provides that the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is equally well-settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the Court should adopt liberal approach and not a hyper-technical approach particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings (See: L.J. Leach & Company Ltd. & Anr. Vs. M/s Jardine Skinner & Co., AIR 1957 SC 357, Smt. Ganga Bai Vs. Vijay Kumar & Ors., (1974) 2 SCC 393 and B.K. Narayana Pillai Vs. Parmeswaran Pillai & anr., (2000) 1 SCC 712) Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya Vs. Maung Mo Hnuang AIR 1922 Privy Counsel 249 succiently summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings.
All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.
15. True it is that amendment in the pleading can be allowed at any stage of the proceeding which are necessary for determining the real question in the controversy, but in my opinion, in a case in which the admission made is sought to be withdrawn, same is not fit to be allowed. In my opinion, in a case in which amendment has been allowed depriving the plaintiffs’ of the valuable right from the admission made in the written statement, even if liberal view is taken, same is not fit to be allowed. The Court below has allowed the amendment in teeth of the aforesaid well settled principle of law and as such, the order impugned deserves to be set aside.
16. In the result, the application is allowed. Order dated 5.10.2005 passed by the Munsif, I, Begusarai in T.S.No. 96 of 1997 is set aside and the application filed by the defendant for amendment is rejected. No cost.