JUDGMENT : Arun Kumar Goel, J.- This is plaintiffs' appeal against the judgment dated 27.12.2000 passed by the learned District Judge, Kinnaur Civil Division at Rampur Bushehar, in Civil Appeal No. 19 of 2000, dated 27.12.2000. By means of impugned judgment while allowing amendment of written statement subject to payment of Rs. 1,000/-, judgment and decree under appeal (passed by Sub Judge Ist Class, Anni, camp at Nirmand, District Kullu, H.P. in case No. 74-I of 1991 on 7.4.2000) has been set aside. Suit has been remanded to the trial Court with the direction to dispose of the same in accordance with law in the light of what has been stated in the impugned judgment. 2. Plaintiffs filed a suit before the trial Court for permanent prohibitory injunction restraining the defendants from interfering in their possession on the land comprised in Khewat/Khatauni No. 785/914 and 786/915, khasra No. 2900 and 2903, measuring 8 bigha 14 biswas, situated in Chak Ghatu, Tehsil Nirmand, District Kullu. Case set up in the plaint was that plaintiffs had purchased suit land from Smt. Anand by means of a sale deed duly registered in the office of Sub Registrar at Nirmand in the month of January, 1990. Mutation of this sale was sanctioned by AC-IInd Grade on 21.8.1990 vide mutation No. 2214. They claim to have been put in possession of the suit land. Thus they are in possession. Further plea of the plaintiffs was that the defendants started creating trouble. Defendant No. 2 is the wife of defendant No. 1 and defendant No. 3 is his brother-in-law. All of them threatened the Chowkidar of the plaintiffs in their absence that he will not be allowed to work in the orchard, as such no one was willing to work there. In this background injunction was prayed for. Defendants, on the other hand, denied claim of the plaintiffs. According to them plaintiffs were never in peaceful possession at the spot on the suit land as alleged. Rather it is defendants No. 1 and 2 who are in possession of the land. They have been enjoying the apple crop too of the suit land. According to them Mrs. Anand as well as her husband entered into an oral agreement of sale of the suit land with defendant No. 1 in April, 1986 for a total consideration of Rs. 47,000/-. On 14th May, 1986 a sum of Rs. They have been enjoying the apple crop too of the suit land. According to them Mrs. Anand as well as her husband entered into an oral agreement of sale of the suit land with defendant No. 1 in April, 1986 for a total consideration of Rs. 47,000/-. On 14th May, 1986 a sum of Rs. 20,000/- was paid by defendant No. 1 at Nahan towards part payment of the consideration and remaining amount was agreed to be received by them at the time of regular sale deed. According to them they continue to be in possession of the land in suit. While filing replication, stand of the defendants was controverted by the plaintiffs and that of the plaint was reiterated. 3. When the suit was pending, plaintiffs amended their plaint and in the prayer clause a prayer in the alternative was made to the effect that in case possession is found to be that of defendants, a decree for possession be also passed in their favour and against the defendants with cost of the suit. 4. Trial Court framed a number of issues and after conclusion of the trial dismissed the suit. Plaintiffs preferred an appeal against the aforesaid judgment and decree of the trial Court. On behalf of the defendants, an application was filed to add paragraph 3(a) in their written statement by taking up the plea of adverse possession. What was proposed to be pleaded by the defendants was in the following terms :- "Para 3(a) :- That the possession of the defendants has not matured into ownership by way of adverse possession. The possession of the defendants over the suit land is open, peaceful, hostile and to the knowledge of the plaintiffs continuous in our own right. The plaintiffs were in knowledge of the possession of the defendants since 1986 and the plaintiffs or the previous owner never interfered in the possession of the defendants. In fact the alleged Sale Deed is a sham transaction and possession was never transferred by the alleged attorney of the vendor to the vendee, nor any consideration was passed on the parties to the alleged sale deed". 5. This amendment has been allowed as aforesaid and thereafter judgment and degree of the trial Court was set aside. Hence this appeal. 6. Before proceeding further with this case, one salient fact needs to be noted. 5. This amendment has been allowed as aforesaid and thereafter judgment and degree of the trial Court was set aside. Hence this appeal. 6. Before proceeding further with this case, one salient fact needs to be noted. That in their written statement, plea set up by the defendants is of their being in possession of the suit land, in part performance of the oral agreement to sell. This plea was the subject matter of issue No. 3 which was in the following terms : "Whether the defendant No. 1 is entitled for the benefit of part performance on the basis of agreement, as alleged ?"... OPD 7. This issue was decided in favour of defendants No. 1 and against the plaintiffs. 8. From the facts stated in the pleadings of the parties, what emerges is that both sides were claiming to be in permissive possession. One by means of sale deed registered in the office of Sub Registrar in 1990, whereas defendant No. 1 claimed to be in possession in part performance of the oral agreement to sell. Thus, we have no doubt that plaintiffs based their claim on the basis of title whereas defendant No. 1 based his permissive possession on the basis of the oral agreement to sell. Learned appellate Court below while allowing the amendment held that the plaintiffs could be compensated by awarding cost against the defendants. As latter had sought to leave to amend so as to avoid multiplicity of litigation. According to him, amendment of pleadings was to be liberally allowed. In this case according to appellate Court below real question for determination was about the possession of the suit land and house situated thereon. According to him plaintiffs were not going to suffer any irreparable loss if amendment of written statement was allowed. 9. It has been urged on behalf of the appellant by learned Senior Counsel that so far legal proposition regarding amendment to be liberally allowed is concerned, he does not dispute the same. According to him proposed amendment is felt necessary for setting the controversy at rest, should normally be allowed so that litigation is put to an end to once for all. He further submitted that howsoever negligent may have been the first omission, if a party can be compensated in terms of money, then delay by itself is no ground to refuse the amendment. He further submitted that howsoever negligent may have been the first omission, if a party can be compensated in terms of money, then delay by itself is no ground to refuse the amendment. According to him in appropriate cases this Court as well as the apex Court depending upon circumstances of each case had allowed amendment of pleadings by the parties. 10. While seriously contesting the impugned judgment, learned Senior Counsel pointed out that appellate Court below could not have allowed the amendment howsoever liberal view thereof may be taken by the Court. Reason being that both the parties claim permissive possession one on the basis of sale and other on the basis of part performance. by now putting up the plea of adverse possession defendants are going to take a complete somersault and thus deny the title of not the plaintiff, but also of the real owner (through whom both the sides claimed to be in possession of the property in question). This is prohibited by law as according to him when defendants pleaded part performance they conceded the title of the real owner, i.e. Smt. Anand. Further adverse possession has to be claimed against a third party and not against himself, when real owner is not before the Court. 11. In the instant case there is no question of defendants being in adverse possession over the suit land. By filing the suit in question right of the defendants was challenged. Mere pendency of litigation will not convert the permissive possession into adverse possession. This position has been seriously contested by Mr. Bimal Gupta, Advocate. According to him this is nothing but a plea in the alternative being raised by his client to defeat the suit of the plaintiffs and his clients can always raise inconsistent plea. He could not have been stopped from even having raised this plea in the written statement as originally filed. A feeble attempt was made to challenge the maintainability of the present appeal by placing reliance on the case in Mt. Lachmin v. Bhairon Baksh Singh, AIR 1940 Oudh 367, Abdul Kadar bin Salim Bashrabil & Another v. Faroji bin Ali Bane Moon by Mukhtiar Krishnadas Dhanjee, 1925 Madras 228 and Sanatam Mohapatra and Others v. Hakim Mohammad Kazim Mohammad and Others, 1977 Orissa 194.. 12. Lachmin v. Bhairon Baksh Singh, AIR 1940 Oudh 367, Abdul Kadar bin Salim Bashrabil & Another v. Faroji bin Ali Bane Moon by Mukhtiar Krishnadas Dhanjee, 1925 Madras 228 and Sanatam Mohapatra and Others v. Hakim Mohammad Kazim Mohammad and Others, 1977 Orissa 194.. 12. After having heard learned counsel for the parties as well as having gone through the records of this case, permissive possession was as claimed by the defendants was under Section 53-A of the Transfer of Property Act. According to them, defendant No. 1 is the owner of the property having been allegedly put in possession by the husband of Mrs. Anand as far as back in the year 1986. If that was so, it is not understood as to against whom he was claiming adverse possession. In any case it can be at best claimed against the real owner. 13. Another reason to take this view is that so far plaintiffs are concerned, they got title of the suit land in the year 1990. What was the starting point for calculating the period of limitation; and against whom it is and what are the overt acts; these are the essential ingredients of a prima facie pleading of adverse possession. Stand of the defendants remained in the written statement that they were put in possession in part performance of the oral agreement to sell. 14. Learned appellate Court below has completely ignored this aspect of the case and has thus fallen into error. So far cases relied upon by Mr. Gupta are concerned, they have no applicability to the facts of the present case. Reason being that this is a case of remand under Order 41 Rule 23-A, C.P.C. This rule was incorporated vide Central Act 104 of 1976. This is appealable under Order 43 Rule (1)(u) of C.P.C. as such the objection regarding maintainability of appeal is hereby rejected. 15. We may further add here that ordinarily correctness, merit or otherwise of the proposed amendment is not to be gone into while considering the question of allowing/disallowing prayer for the amendment of pleading. 16. However, we feel that in the facts and circumstances of this case it has become necessary to go into that question. As already observed initially possession of the defendants was admittedly permissive (in part performance) under an agreement to sell which was in the nature of an executory control of sale. 16. However, we feel that in the facts and circumstances of this case it has become necessary to go into that question. As already observed initially possession of the defendants was admittedly permissive (in part performance) under an agreement to sell which was in the nature of an executory control of sale. There is no question of its becoming adverse. As such we feel that the appellate Court below should have taken note of this aspect of the case. 17. If the proposed amendment is allowed to remain, it will result in displacing the plaintiffs from an admission made in the earlier written statement. Matter of allowing/disallowing amendment of pleadings had been attending attention of the Hon'ble Supreme Court. 18. What was held by a Three Judge Bench in M/s Modi Spinning & Weaving Mills Co. Ltd. and Another v. M/s Ladha Ram and Co., 1976 (4) SCC 320 in a case of amendment to the written statement was as under : "7. The trial Court rejected the application of the defendants for amendment. One of the reasons given by the trial Court is that the defendants wanted to resile from admissions made in paragraph 25 of the written statement. The trial Court said that "the repudiation of the clear admission is motivated to deprive the plaintiffs of the valuable right accrued to him and it is against law". The trial Court held the application for amendment to be not bona fide." "8. The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side." "9. The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different new case." "10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court." "11. We are told that the defendants proposed amendments to two other paragraphs of written statement. These are paragraphs 4 and 19 of the written statement. These amendments were also rightly rejected." "12. For the foregoing reasons the appeal must fail. The defendants/appellants cannot be allowed to amend the written statement in the manner suggested." "13. The two alternative pleas of the defendants as alleged in paragraphs 25 and 26 of the written statement are there. The parties will be able to make their rival contentions on the pleadings to the issues to be raised. The defendants wish to raise issues on those paragraphs 25 and 26. Counsel for the plaintiffs states that it is open to the defendants to apply for the framing of the issues. They will be at liberty to do so." 19. In Arundhati Mishra (Smt.) v. Sri Ram Charitra Pandey, 1994 (2) SCC 29 while allowing the appeal what was held is as under : "4. The question in this case is whether the plea of adverse possession sought to be set up by respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never renounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging or acquiescing the right, title and interest of the appellant. The plea of adverse possession though available to the respondent, was never raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. The plea of adverse possession though available to the respondent, was never raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated March 15, 1971 constitutes assertion of adverse possession, the limitation would start running against the appellant only from March 15, 1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to the High Court for disposal on merits. According to law, the appeal is allowed but without costs." 20. In this behalf reference can also be made to decisions of Hon'ble Supreme Court in B.K. Narayana Pillai v. Parameshwaran Pillai and Another, 2000 (1) SCC 712 ; and State of Punjab and Others and Others v. Brigadier Sukhjit Singh, 1993 (3) SCC 459 . 21. In almost identical circumstances where purchaser was put in possession in pursuance of a contract, Hon'ble Supreme Court held that such possession cannot be adverse. This is exactly the position in this case. What was held in this behalf in Achal Reddi v. Ramakrishna Reddiar and Others, AIR 1990 SCC 553 was as under :- "In the case of an agreement of sale the party who obtained possession acknowledges title of the vendor even though the judgment of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owners title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well-recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory control of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer. Both parties stipulating for a total disvestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse." 22. In the face of aforesaid legal position, we feel that proposed amendment should not have been allowed in the circumstances of this case. It was not required for determining the controversy between the parties with view to set it at rest. And above all, it completely changes the complexion of the case. Last but not the least, both the parties pleaded permissive possession. Plea of adverse possession, in our view, is self-contradictory and mutually destructive keeping in view the peculiar facts of this case. Appellate Court should not have allowed the same. Decisions of the Hon'ble Supreme Court, supra, cannot be overlooked, being the law of the land. 23. No other point is urged. 24. In this view of the matter impugned judgment passed by the appellate Court in Civil Appeal No. 19 of 2000, dated 27.12.2000 is hereby set aside and consequently application under Order 6 Rule 17 C.P.C. seeking amendment of the written statement is hereby rejected. Parties through their learned counsel are directed to appear before the learned District Judge at Rampur Bushehar on 5th January, 2002, thereafter appellate Court shall proceed to determine the appeal in accordance with law. Cost on the parties. 25. Registry will ensure that file is transmitted to the Court below well before the date fixed.