Shriram & Ors vs. Bidhi Chand & Ors. CMP No. 8863 of 2019 in RSA No. 583 of 2009 Reserved on 15.07.2026 20.07.2026 Present: Mr Ajay Sharma, Senior Advocate, with Mr Atharv Sharma, Advocate for the appellants. Mr Ajay Kumar, Senior Advocate, with Mr Vinay Kumar, Advocate for the respondents. The applicants/appellants/defendants Nos. 2 to 4 have filed the present application seeking amendment of the written statement. It has been asserted that the matter was discussed with the learned counsel in his office, and it was found that the disputed land was sold by the owners to the predecessor in interest of the applicants by means of a registered sale deed in the year 1984. The applicants are rustic villagers, and they were not aware of the intricacies of the law. They bona fide believed that the instructions imparted by them were incorporated in the written statement. The applicants had asserted this fact on oath, but it was not considered by the learned Courts in the absence of a pleading. Therefore, it was prayed that the written statement be permitted to be amended by incorporating the plea of purchase by means of a sale deed dated 29.08.1984 after the plea of the adverse possession. The proposed amendment is necessary for the adjudication of the dispute pending before the Court. No loss would be caused to the other side. Hence, it was prayed that the present application be allowed and the applicants be permitted to amend the written statement. 2. The application is opposed by filing a reply, asserting that the applicants have not come to the Court with clean hands. Civil suit No. 60 of 1988 was filed by appellant Nos. 1 and 2 and Shri Ram in the Court of Learned Sub-Judge, Dehra, which was dismissed on 28.11.1997. The execution of the sale deed was specifically disputed in the previous civil suit. The amendment is malicious and was made with a view to delaying the matter. Therefore, it was prayed that the present application be dismissed. 3. I have heard Mr Ajay Sharma, learned Senior Counsel, assisted by Mr Atharv Sharma, learned counsel for the appellants/applicants, and Mr Ajay Kumar, learned Senior Counsel, assisted by Mr Vinay Kumar, learned counsel for the respondents. 4. Mr Ajay Sharma, learned Senior Counsel for the appellants/applicants, submitted that the applicants have already led the evidence regarding the execution of the sale deed. But they could not plead this fact in their written statement. They remained under the bona fide belief that this plea had been taken. No prejudice would be caused to the other side by allowing the amendment. The law related to the amendment is quite liberal, and every amendment is to be allowed that is necessary for the adjudication of the dispute pending before the Court. He relied upon the judgment of the Hon'ble Supreme Court in LIC versus Sanjeev Builders Pvt. Ltd. 2022 SCC OnLine SC 1128 in support of his submission. 5. Mr Ajay Kumar, learned Senior Counsel for the respondents, submitted that the applicants had taken a specific plea of adverse possession. They went ahead with this plea before the learned Trial Court, learned Appellate Court and even a substantial question of law No. 2 was also proposed by them along with their memorandum of appeal regarding their having become the owner by way of adverse possession. The plea of ownership and adverse possession cannot be taken together. A civil suit was filed, which was dismissed by the learned Civil Judge, and this plea cannot be taken during the present proceedings. Hence, he prayed that the present application be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The applicants/defendants had filed a written statement before the learned Trial Court in which they had specifically pleaded that their predecessor, Dina Nath, had purchased the land from one Sh. Bhandari Lal on 07.12.1965 through a sale deed regarding Khasra Nos. 1162 and 1163. The disputed land is located adjacent to these Khasra numbers, and possession of the disputed land and the purchased land was delivered to the purchaser. The predecessor-in-interest of the defendants constructed his residential house over the disputed land. The defendants continued to be in possession, and they became the owners of the disputed land by way of adverse possession. Applicant Shri Ram and Bhandari Lal (DW2) asserted this fact in their affidavits. The learned Trial Court decreed the suit, and the applicants/defendants filed an appeal. They specifically asserted in their memorandum of appeal that the suit land was in possession of their predecessor-in- interest since 1965. The possession was continuous without any interruption and matured into an adverse possession. The learned Appellate Court dismissed the appeal, and the applicants/appellants filed a regular second appeal before this Court. They asserted in para 2 (p) that their predecessor was in possession of the disputed land since 1965, and they stepped into his shoes after his death. The possession was peaceful, open, hostile and matured into a title. They also proposed a substantial question of law No.2 that the judgments and decrees were vitiated because of the misreading and misappreciation of the evidence regarding the applicant's possession having matured into title by way of adverse possession. 8. Therefore, it is apparent that the applicants had never abandoned the plea of adverse possession. They set up a specific plea of adverse possession before the learned Trial Court, the First Appellate Court and this Court. A plea of adverse possession presupposes that some person other than the one who was setting up the plea was the owner. Therefore, the applicants cannot claim to be the owner of the land as well as in adverse possession of it. It was laid down by the Hon’ble Supreme Court in L.N. Aswathama v. P. Prakash, (2009) 13 SCC 229: (2009) 5 SCC (Civ) 72: 2009 SCC OnLine SC 844 that the pleas of ownership and adverse possession are mutually inconsistent and cannot be projected before the Court simultaneously. It was observed at page 238: 17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent, and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi [(1995) 6 SCC 523], Md. Mohammad Ali v. Jagadish Kalita [(2004) 1 SCC 271] and P.T. Munichikkanna Reddy v. Revamma [(2007) 6 SCC 59].) 9. In Om Prakash and Ors. vs. Bhaurao (23.03.2022 - BOMHC): MANU/MH/0997/2022, the defendant had taken a plea of ownership. He sought an amendment to take the plea of adverse possession. Bombay High Court held that a party cannot take mutually destructive pleas of ownership and adverse possession, and the amendment cannot be allowed. It was observed: 18. The defendants are certainly entitled to take inconsistent pleas. However, mutually destructive or exclusive pleas stand on a different pedestal. A person who has set a title in himself cannot be permitted to alternatively plead perfection of title by adverse possession. The concept of adverse possession presupposes that the claimant accepts the title of the adversary. Adverse possession cannot begin to operate until the claimant renounces title and accepts the title of the adversary. In the factual matrix, the defendants have all along claimed to be the owners of the property and have denied the title of the plaintiff. In this view of the matter, the learned trial Judge did not commit any error in refusing to permit amendment to the written statement at the fag end of the trial, to incorporate the plea of adverse possession. 10. It was laid down by the Hon'ble Supreme Court in LIC v. Sanjeev Builders (supra) that an amendment to change the nature of the suit to set up an entirely new case foreign to the case set up in the plaint cannot be allowed. It was observed: 71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily, the amendment is required to be allowed. 11. Hon’ble Supreme Court held in Ganesh Prasad v. Rajeshwar Prasad, 2023 SCC OnLine SC 256 that inconsistent and contradictory pleas should not be allowed to be pleaded by the amendment. It was observed: 37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that, by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not wrong. All amendments of the pleadings should be allowed liberally, which are necessary for the determination of the real controversies in the suit, provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. 38. Inconsistent and contradictory allegations in negation of the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of an amendment to the pleadings. 12. Therefore, there is a force in the submission of Mr Ajay Kumar, learned counsel for the respondents, that the proposed amendment is inconsistent with the existing plea and cannot be taken. 13. The record of the learned Trial Court also shows that Daulat Ram, Kuldeep Chand and Shri Ram had filed a civil suit seeking a declaration that they were in possession of the disputed land based on a sale deed executed in their favour. This civil suit was dismissed in default of appearance vide order (Ext.P1) in the presence of the learned counsel for the defendant under the provision of Order 9 Rule 8 of the CPC. It was submitted that the dismissal of the previous suit would preclude the applicants from raising the plea of purchase in the present suit. This submission cannot be accepted. It was laid down by the Full Bench of Punjab and Haryana High Court in Gajpat Singh v. Sudhan, 1974 SCC OnLine P&H 77: AIR 1985 P&H 135 that the dismissal of a suit in default or the withdrawal of the suit will not prevent the plaintiff from raising the plea in the written statement. It was observed at page 136: 5. Under these provisions, no express bar has been created against a defendant to raise such pleas as had been raised by him in his earlier suit, which might have either been dismissed in default of hearing or withdrawn by him, as the case may be. 14. It was submitted that the dismissal of the suit in default will not bar a fresh suit. A reliance was placed upon the Judgment of the Hon'ble Supreme Court in Amruddin Ansari v. Afajal Ali, 2025 SCC OnLine SC 912, in support of his submission. However, the Hon'ble Supreme Court was concerned with Order IX Rule 2 and Order IX Rule 3 of the CPC. The Hon'ble Supreme Court specifically noticed the provision of Order IX Rule 9 of CPC in para 14 and held that when a suit is dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. It was observed: 15. The plain reading of Order IX Rule 4 of the CPC does not bar the filing of a fresh suit, of course, subject to limitation and if that were the intention, we might have found in it a provision similar to that in Order IX Rule 9 of the CPC referred to above, which states that where a suit is dismissed under the Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. 16. The basic difference between the two provisions i.e. Rule 4 and Rule 9 of Order IX CPC is that in the case where the suit is dismissed under Rule 2 or Rule 3 of Order IX, the remedy provided is under Rule 4 of Order IX of the CPC In case of such dismissal, the plaintiff either brings a fresh suit on the same cause of action or he may apply for setting aside the order of dismissal and for restoration of suit. Whereas if the suit is dismissed under Rule 8 of Order IX of the CPC, the plaintiff cannot bring a fresh suit on the same cause of action. The only remedy available to the plaintiff is to move an application for setting aside the order of dismissal and for restoration of the suit. 17. From bare reading of the aforesaid two provisions i.e. Rule 4 and Rule 9 of Order IX of the CPC, it is manifestly clear that under Rule 4 of Order IX of the CPC, the legislature in express term has not precluded the plaintiff from filing a fresh suit on the same cause of action in the event suit is dismissed under Rule 2 or Rule 3 of Order IX of the CPC, whereas Rule 9 of Order IX debars the plaintiff from filing a fresh suit in a case where the suit is dismissed under Rule 8 of Order IX of the CPC The only remedy provided for such dismissal is to file an application under Rule 9 of Order IX of the CPC for restoration of suit. 15. Therefore, the cited judgment does not apply to the facts of the present case. 16. Consequently, the appellants/applicants cannot be permitted to amend the written statement to incorporate any inconsistent plaint. Hence, the present application fails and is dismissed. 17. The observations made hereinabove are regarding the disposal of this application and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 20th July, 2026 (Nikita)