JUDGMENT - DABHOLKAR N.V., J.:---Heard learned Counsel for the respective parties.

2. Rule. By consent, rule is made returnable forthwith.

3. This revision petition arises out of the order passed on 14-1-2002 by the learned II Joint Civil Judge J.D. Jalna below Exhibit 111 in Regular Civil Suit No. 547 of 1996. Limited details regarding facts which are not disputed and requisite for present petition, are as follows.

Respondents are plaintiffs. They filed the suit for declaration of title and possession of agricultural lands. They claimed that the properties were owned by their grand father and inherited by them through their uncle, since father predeceased uncle and thereafter, the uncle acted as Karta of the joint family.

Defendants approached with a plea that uncle and eldest brother of plaintiff (who is now dead) had agreed to sale the suit land in favour of defendant No. 1. In the alternative, it is claimed that if the isar pavati has not passed the title in favour of defendants, they have become owners by adverse possession.

4. After conclusion of recording of evidence, before the arguments could be opened by both the lawyers, application Exhibit 111 was filed by plaintiff requesting the Court to direct defendants to elect one of the pleas i.e. either their right to retain possession under section 53-A of the Transfer of Property Act on the basis of agreement of sale or to claim their title on the basis of adverse possession.

After considering the case law cited before him, the learned Judge directed defendant No. 1 to file purshis and elect one of the pleas as to whether they are owners by agreement of sale or they are owners by adverse possession.

5. Before opening his arguments I had categorically asked Shri Deshpande, Advocate, who is trying to defend the impugned order, to point out a provision either under the Civil Procedure Code or Indian Evidence Act that prohibits a party from taking inconsistent pleas/defences or that prohibits a party to lead evidence to prove such inconsistent pleas or the provision which empowers the Court to direct a party to elect one of the inconsistent pleas and shut his case and evidence so far as the other pleas. Shri Deshpande concedes that there is no such specific provision but the case law and judicial pronouncements by precedent, according to Advocate Deshpande, have disallowed inconsistent pleas and expected the party to elect one out of the inconsistent pleas.

Practically the same case law, as relied upon before the trial Court is cited before me.

6. In the case of (C. Mohammed v. Anantchari)1, A.I.R. 1988 Kerala 298, it was observed by that High Court;

"Ownership and easement rights are inconsistent and cannot co-exist in the same person. As existence of both a dominant tenement and servient tenement is essential to the creation and existence of an easement, it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the tenements. It may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. Therefore, where the plaintiff claiming a prescriptive easement right over the pathway leading to his property filed a suit for mandatory and perpetual injunction directing the defendant to restore the pathway and restrain him from damaging it and subsequently admitted that the property through which he claimed the right of way belonged to him, his case that he had prescribed easementary right in the property cannot be accepted and therefore the courts below were justified in dismissing the suit."

In the matter of (Arjan Dev v. Om Prakash)2, A.I.R. 1992 Delhi 202, defendant claimed to be occupying the house as a member of joint family as brother of plaintiff and after marriage he started his kitchen separately, although continued to stay in the same house with the permission of p

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