The main legal point established in the judgment is that an amendment to pleadings cannot be permitted if it seeks to take away accrued rights of the opposing party and if the explanations for delay are not convincing.

JUDGMENT:- 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 of2001, 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 NoA20/1-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.420/1A. 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 NoA08 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 NoA08 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 construct

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