Honble TATIA, J.–Heard learned counsel for the parties.

(2). This appeal is directed against the order dated 21st Oct., 2003 by which the first appellate court after allowing the amendment of the plaint set aside the judgment and decree of the Trial Court dated 1st Sept., 2001 and remanded the matter back to the Trial Court for deciding the suit afresh after framing the issues de novo.

(3). Learned counsel for the appellant submitted that the court below has committed serious illegality in allowing the amendment application because of the reasons that the appellants want to take absolutely contradictory plea by amending the plaint from the pleas, which they took originally. It is also submitted that the amendment has been sought by the plaintiff after inordinate delay and in view of the proviso added by amendment of the Civil Procedure Code to the Order 6 Rule 17 CPC, the amendment can be allowed by the court upon finding that even after due diligence, the party could not raise the matter before the commencement of the trial. In this case, the plaintiff sought amendment of the plaint after the decision of the suit by the Trial Court and further more, the plaintiff did not submit application for amendment of the written statement alongwith the memorandum of appeal. It is also submitted that facts were in the knowledge of the plaintiff from the time before filing of the suit itself. Therefore, the amendment should not have been allowed by the appellate court. Learned counsel for the appellant relied upon the judgment of the Honble Supreme Court delivered in the case of Shrimoni Gurdwara Committee vs. Jaswant Singh (1), and judgment of this court delivered in the case of Prem Chand vs. Thakurji Shri Adinathji (2).

(4). I considered the submissions of learned counsel for the appellant and perused the record. It will be worthwhile to mention a few facts of the case of the plaintiff. The plaintiff filed the suit for declaration and injunction against the defendants-appellants alleging therein that the property situated as Ahata No. 29 having measurement of 77 1/2 x 50 at `B Block of Gajsinghpura initially was the ancestral property of Polaram, Redaram and Birbalram. These persons sold the property to the plaintiffs father in the year 1965. The plaintiffs father invested money and constructed boundary wall and one small room. In the year 1981, the plaintiff raised constructions of Bedroom, kitchen, two Baramda and reconstructed the boundary wall. The plaintiff claimed that plaintiff is in possession of the property since last more than 12 years. It is also submitted that plaintiff also received notices from the Municipal Board of the area objecting raising of construction by the plaintiff. On these facts and when plaintiff was threatened by the defendants he filed the suit for declaration and injunction against the defendants.

(5). The defendants admitted about the identity of the property and further admitted that the property was originally belonging to Polaram, Redaram and Birbalram. However, defendants submitted that Polaram, Birbalram and Redaram died in the year 1947, 1945 and 1980 respectively. Therefore, no sale deed could have been executed by Birbalram and Polaram in the year 1965. The defendants are claiming themselves to be the descedents of the persons named above as owner of the property. However, the defendants admitted that plaintiff is in possession of the property and also impliedly admitted that if there is water and electric connection, those were taken by the plaintiff. According to defendants because of good relations between the plaintiff and the defendants and at the request of the plaintiff, the defendants gave possession of the property to the plaintiff in the year 1981 and, therefore, the plaintiff is in possession of the property. According to the defendants since it was a permissive possession and though more than 12 years have passed but the possession is not claimed to be hostile against the title of the de

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