1. Heard learned Counsel for the petitioners and the learned Counsel for the Respondent No. 1.

2. Learned Counsel for the parties are unanimous in their submission that no notice need issue to respondents 2 to 10 as they are only formal parties.

3. The petitioners who are stated to be defendants in Title (Partition) Suit No. 251 of 2007 pending before the Subordinate Judge-IV at Patna City are aggrieved by the impugned order dated 3.5.2010 by which their prayer for amendment of. the written statement has been refused on the ground that by the amendment they seek to withdraw the admission made by them earlier.

4. The subject matter of the suit are three plots bearing nos. 1521, 1522 and 1525.

5. Learned Counsel for the petitioners submits from the amendment application that it is more than apparent from the pleadings that no admission was sought to be withdrawn. The stand of the petitioners in their earlier written statement and in the amendment was consistent of an earlier partition with regard to the properties and it could not be partitioned freshly again. The counter claim was sought to be raised in the background of the statement that if the respondent no. 1 does not admit the previous partition, in that event the petitioner made a counter claim for partition. The respondent was concealing the earlier partition.

6. Learned Counsel for respondent no. 1 relied upon a judgment of the Supreme Court in AIR 1998 Supreme Court 618 (Heera Lal V/s. Kalyan Mall) to submit that once a stand has been taken in a written statement the defendant cannot be allowed in the guise of amendment to withdraw an admission made earlier by amendment of written statement as that would fundamentally affect case of the plaintiff and shall change nature of the suit. He next relies upon the decision of the Supreme Court in AIR 2002 SC 559 (Prem Buxi V/s. Dharamdeo) to submit that these issues can be raised by the petitipner in appeal also.

7. The principle deduced in the case of Heera Lal (supra) is that once a written statement contains an admission in favour of the plaintiff, by an amendment the defendant cannot be allowed to withdraw such admission displacing the case of the plaintiff which would cause him irretrievable prejudice.

8. The short question for consideration presently is whether by the amendment the petitioners seek to retract any statement or admission made by them in the earlier written statement. On going through the pleadings contained in the amendment of the written statement prayed for, this Court is satisfied that the petitioners do not give up their original claim of a partition already having taken place. They only urge that if the respondent no. 1 does not admit their claim of a previous partition then in that event the properties be partitioned again. There is no withdrawal of any admission by them inasmuch as they do not rescile from the earlier stand that there has been a partition. A plea sought to be taken in the amended written statement mutually destructive with that taken by them in the earlier written statement cannot be permitted but in inconsistent pleas stand on a different footing. In view of the fact that this Court has arrived at the conclusion that the petitioners by the proposed amendment do not seek to raise inherently contradictory and mutually destructive plea this Court is satisfied that the case of Prem Buxi (supra) in the facts of the present case has no application.

9. In (2006)6 SCC 498 (Baidev Singh V/s. Manohar Singh) at paragraphs 15 and 16 it has been held as follows:

15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the trial court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the trial court. After going through the pleadings and also the statements made in the appli