The main legal point established in the judgment is that the amendment to the written statement cannot be permitted if it is self-contradictory and not consistent with the pleas taken in the Memorandum of Appeal.

M.M. KUMAR, J. - This is defendants’ appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’) challenging concurrent findings recorded by both the Courts below holding that the plaintiff-respondent is the real brother of the defendants-appellant and is entitled to 1/4th share in the property in question. Therefore, suit for possession was decreed and preliminary decree for possession of 1/4th share in the property in dispute through partition was passed in favour of the plaintiff-respondent. The defendants-appellant have claimed that the following substantial questions of law would arise for determination of this Court:

(i) Whether the findings contained in the impugned judgment are perverse, as they have illegally discarded the memorandum of partition dated 11.6.1967 (Mark-A) executed between brothers; on the ground of absence of pleadings?

(ii) Whether the memorandum of partition dated 11.6.1967 (Mark-A) signed by all the brothers i.e. plaintiff and defendants has been illegally discarded, especially when the defendants-appellants were allowed to lead their evidence to prove the same by examining DW-1 to DW-7?

(iii) Whether the findings of lower appellate court qua dismissing application under Order 6 Rule 17 CPC for amendment of written statement, as it will change nature of defence are perverse and the same are liable to be set aside in the light of judgment of Hon’ble the Supreme Court in the case of Usha Balashaheb Swami v. Kiran Appaso Swami, 2007 (2) RCR (Civil) 830?

(iv) Whether both the courts below should have relied upon memorandum of partition (Mark-A) in order to ensure peace and harmony between brothers, by ignoring technicalities etc. as held under para no. 43 to 45 of the judgment of Hon’ble the Supreme Court in the case of Hari Shankar Singhania v. Gaur Hari Singhania, 2006 AIR SCW 3330?

(v) Whether the suit of the plaintiff is liable to be dismissed because of non joinder of necessary parties i.e. sisters of the parties?

2. Brief facts of the case are that the plaintiff-respondent filed a suit for possession through partition of 1/4th share of two houses detailed as under:

“a) One house consisting of one hall, one bathak, one Chubara, one kitchen, one Deorhi and court yard bounded as under:-

East: street, West: house of Babu ghamiar and house of Sardara, North: houses of Noor and Wali, South: thoroughfare, situated in village Dahliz Kalan, tehsil Malerkotla;

b) One house consisting of one room bounded as under:-

East: Panchayat Ghar, West: Yussaf, North: thoroughfare, South: plot Baisakhi situated in village Dahliz Kalan, tehsil Malerkotla.”

The plaintiff-respondent has claimed that he and defendants-appellant are real brothers and the property in dispute was in joint possession of the parties. It was pleaded that the plaintiff-respondent was in possession of 1/4th share whereas the defendants-appellant were occupying 3/4th share. Since the plaintiff-respondent did not want to keep the suit property joint with the defendants-appellant, he instituted the aforementioned suit. While appearing as PW1, the plaintiff-respondent in his cross examination stated that his father Rahim Bakash was having two wives, namely, Kaki and Bakshi. He was born out of lions of Rahim Bakash and Kaki whereas the defendants-appellant were born from the second wife of Rahim Bakash, namely, Bakshi. This version of the plaintiff-respondent was also supported by Shri Nahar Singh, DW1. The defendants-appellant examined a number of witnesses including Nahar Singh, DW.1, Ram Chand DW.2 and Ram Rachhpal DW.3, who deposed that property left by Rahim Bakash was partitioned between the parties and a partition deed was accordingly got executed. However, an objection was raised by the counsel for the plaintiff-respondent that since the said partition deed was not a registered document, the same could not be looked into and exhibited in terms of Section 49 of the Indian Registration Act, 1908.

3. On the