Amit Rawal, J. - (1.) The petitioners-defendants are aggrieved of the dismissal of the application by the trial Court for the amendment of the written statement by incorporating the alternative plea of adverse possession by incorporating the following preliminary objection No.3:- "That the defendants are in occupation of the property since 1966 and the same is being corroborated by the revenue record, but in the remarks column there is no reference regarding the payment of ⅓rd batai and due to this reasons the defendants' apprehend that since in the remarks column there is no reference of payment of batai then in that eventuality the defendants cannot get the status of a tenant on the land in dispute and due to this technicality of law, if they are not in a position to prove their tenancy then certainly they are in occupation of the land in dispute since 1966 to the very knowledge of the plaintiffs and their predecessor-in-interest. Due to the technicality of law if it is held that the defendants are not in occupation of the property as tenants, then in that eventuality the defendants should be allowed to take the plea of adverse possession since they are in occupation of the land in dispute since 1966 to the very knowledge of the plaintiffs and their predecessor-in-interest. Thus their possession over the suit land would be considered to be hostile, peaceful, without any right to the very knowledge of the plaintiffs and have ripened into adverse possession."
(2.) Mr. Mahavir Sandhu, learned counsel appearing on behalf of petitioners-defendants submits that respondent-plaintiff had instituted the suit for possession and consequential relief of permanent injunction and stand taken in the written statement was that the petitioners-defendants are tenant on ⅓rd batai since time of forefather and had been paying the batai regularly. During the cross-examination, the plaintiff denied the aforementioned fact and realise that in case the aforementioned plea is not taken, plea of adverse possession would be sustainable.
(3.) He submits that mutual destructive plea is available in view of law laid down by Hon'ble Supreme Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary, 1995 Supp (3) Supreme Court Cases 179 , reiterated by many other judgment.;