This second appeal is filed against judgment and order dated 19-10-2001 passed by the Additional District Judge, Akola in Regular Civil Appeal No. 78 of 1998 confirming the judgment and order dated 26-2-1998 passed by the Civil Judge, Junior Division, Murtizapur in Regular Civil Suit No. 129 of 96 whereby the suit of present respondent-plaintiff came to be decreed.

2. It was averred that appellant-defendant was lessee of plaintiff in respect of open site hearing Nazul Plot No, 120/3 and 121/3, admeasuring 12 x 65 feet on monthly rent of Rs. 100/- excluding municipal taxes. Earlier Small Causes Suit No. 25 of 1992 was filed by respondent-plaintiff against appellant-defendant for recovery of arrears of rent and that suit was decreed on 10-11-1995. Another suit viz. Regular Civil Suit No. 117 of95 was filed for similar purpose and it was also decreed. Respondent-plaintiff filed application before the Rent Controller, Murtizapur for grant of permission to determine the tenancy of appellant defendant. Rent Controller, Murtizapur rejected the application of respondent plaintiff for grant of permission to issue quit notice, but he directed appellant plaintiff to pay arrears of rent to the respondent-plaintiff for the period from March, 1992 to October, 1993 at the rate of Rs. 100/- per month. Appellant defendant along with others then filed Regular Civil Suit No. 29 of 1996 for declaration that respondent-plaintiff is not the owner of suit plot and it is the defendant No.2 therein viz. Collector, Akola who is owner thereof. On noticing the fact that appellant-defendant disclaimed the tenancy and renounced his character as such by setting up a title in a third person. Respondent-plaintiff issued notice dated 9-5-1996 under section 111(g) of the Transfer of Property Act for determination of lease of appellant-defendant by forfeiture. In reply to the notice, appellant-defendant re-affirmed that respondent-plaintiff is not the owner of suit plot and expressed inability to comply with the notice. It is thereafter that the respondent-plaintiff filed Regular Civil Suit No. 129 of 96 before the Civil Judge, JD, Murtizapur for possession and for recovery of rent/damages.

3. Appellant-defendant filed his Written Statement and denied the claim of respondent-plaintiff. He maintained his stand that respondent-plaintiff is not owner of the suit plot. He prayed for dismissal of suit also on the ground that notice under section III (g) of the Transfer of Property Act and suit filed by respondent-plaintiff were premature inasmuch as Regular Civil Suit No. 29 of 1996 filed by him along with others was pending.

4. After hearing the parties, learned trial Court decreed the suit of respondent-plaintiff, as aforesaid, and thereby directed appellant-defendant to deliver peaceful and vacant possession of suit property to the respondent-plaintiff and also directed him to pay damages; arrears of municipal taxes and notice charges amounting to Rs. 1925/- together with interest at the rate of 9% per annum from the date of filing of suit till realisation. Appeal filed by appellant defendant came to be dismissed, as aforesaid. Hence this second appeal.

5. Before adverting to the substantial questions of law, I must deal with Civil Application No. 1441 of 2005 filed by appellant for amendment of Written Statement filed in Regular Civil Suit No. 129 of 1996. He relied upon Bakshish Singh vs. Prithi Pal and ors., reported in 1995 Supp (3) see 577 in order to contend that amendment application can be allowed at the stage of second appeal. I have perused the said ruling. In that case, right of pre-emption was agitated and an application for amendment of plaint was made to claim preemption on the basis of admitted fact that plaintiff was also co-sharer of a vendor. The Apex Court expressed opinion in the facts and circumstances of that case that rejection of the amendment application was erroneous in view of the prayer based upon the admitted fact. Hence, it was