Hon’ble Krishna Murari, J.—Heard Sri K.Ajit, learned counsel for the petitioner and Sri T.A. Khan for the respondent.

2. Undisputed facts giving rise to the dispute are as under :

Plaintiff-respondent No. 1 filed a suit for partition of the ancestral property claiming himself to be shareholder to the extent of half share. The suit was contested by the petitioner by filing written statement on the ground inter alia that their father during his life time has divided the property under a mutual settlement and the plaintiff-respondent has no concern with the suit property as they were self-acquired properties. Trial Court vide judgement and order dated 31.10.2007 passed a preliminary decree with the finding that the plaintiff-respondent No. 1 is entitled to half share in the suit property. The petitioner went up in appeal. During the pendency of the appeal an application under Order VI Rule 17 seeking amendment in the written statement as well as an application under Order 41 Rule 27 to bring on record additional evidence was moved. Lower appellate Court vide order dated 22.1.2010 rejected the application under Order VI Rule 17.

3. A perusal of the written statement filed by th