JUDGMENT - V.C. DAGA, J. :---This revision application is directed against the order dated 3-9-1998 passed by the Second Joint Civil Judge, S.D., Thane, below Ex. 49 in Special Civil Suit No. 936 of 1997, rejecting application seeking amendment to the plaint, holding that inconsistent pleas cannot be allowed to be brought on record by way of an amendment.

The facts giving rise to the present Revision Application may be noticed as under:

2. The plaintiff has filed a suit bearing Special Civil Suit No. 936 of 1997 pending on the file of the Civil Judge, S.D., Thane, seeking negative declaration that defendant Nos. 1 to 3 have no right, title and interest to allot, any part or portion of the suit land, situated at village Kopri, Taluka and District Thane, to any third party, with further declaration that the defendant Nos. 4 and 5 have no right, title, interest, of whatsoever nature in the said land, and that the alleged order of allotment passed by defendant No. 1 in favour of the defendant Nos. 4 and 5 are patently illegal and not binding on the plaintiffs. The plaintiffs have also prayed for an order of permanent injunction restraining the defendants, their servants and/or agents and/or any other person claiming under or through them from entering in the suit land and/or disturbing the possession of the plaintiff in any manner whatsoever.

3. On being noticed, the respondents-defendants appeared and filed their written statement and disputed the assertions made by the plaintiffs. The defendants even went to the extent of denying the title of the plaintiffs to the said land. After going through the contents of the written statement filed by the defendants, the plaintiffs desired to amend their plaint. Accordingly, they moved an application for amendment of plaint under Order VI, Rule 17 of the Code of Civil Procedure (C.P.C. for short). Accordingly, the trial Court was requested to permit them to carry out amendment to para 14 of the plaint. The amendment was to the effect that the suit plots were situated at the distance of more than 60 meters from City Survey No. 1963. This amendment was in reply to the stand taken by the defendants in their written statement, that the land of the plaintiff is not situated near the land of the original defendants bearing Survey No. 1963 and that the same is situated far away from the plaintiffs land. The plaintiffs desired to contend that the land is situated on the western side of the building of Beam's Paradise School and that the plaintiffs are in uniterrupted possession of the said suit land as owners thereof. That is how the plaintiffs claimed ownership on the disputed land by way of adverse possession. This right was sought to be pleaded by way of amendment to the plaint.

4. The defendant Nos. 1 to 3 strongly resisted the application of the plaintiffs and contended that the suit filed by the plaintiffs was based on title and that the plaintiff should not be allowed to take mutually inconsistent plea. Thus, according to the defendants amendment sought by the plaintiffs was totally inconsistent and contradictory and was nothing but an afterthought as such amendment was opposed by them.

5. The above application seeking to amend plaint was rejected by the trial Court vide its order dated 3rd September 1998 holding that inconsistent pleas cannot be allowed. The said order is the subject matter of challenge in the present revision application.

6. The learned Counsel, appearing for the petitioners contends that the entire order rejecting prayer for amendment of the plaint is absolutely perverse and the same suffers from material illegality and, consequently, the same is liable to be quashed and set aside. He further contends that while considering the amendment it is not open for the trial Court to dwell upon merits of the amendment. The learned Counsel for the petitioner drew my attention to para 14 of the order, particularly to the observations dealing with merits of the amendment.

7. In or

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