- 1 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JUNE, 2026 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 9688 OF 2026 (GM-CPC) BETWEEN: SRI. N. MURTHY, S/O. LATE. O.C. NARAYANA GOUNDER, AGED ABOUT 60 YEARS, R/AT. P.G PALYA VILLAGE AND POST, LOKKANAHALLI HOBLI, KOLLEGALA TALUK, NOW HANUR TALUK, CHAMARAJANAGARA DISTRICT - 571 439. …PETITIONER (BY SRI. NANJUNDA SWAMY N, ADVOCATE) AND: 1. SMT BHAGYAMMA W/O.LATE.MADAPPA, AGED ABOUT 62 YEARS, 2. SMT. M. NANDINI, D/O. LATE. MADAPPA, AGED ABOUT 32 YEARS, RESPONDENT NO.1 AND 2 ARE R/AT. P.G. PALYA VILLAGE AND POST, LOKKANAHALLI HOBLI, KOLLEGALA TALUK, NOW HANUR TALUK, CHAMARAJANAGARA DISTRICT - 571 439. …RESPONDENTS (BY SRI. GIRISH M.K., ADVOCATE FOR C/R1 AND R2) Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 06.03.2026 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC KOLLEGALA ON IA NO.24 IN OS NO. 214/2013 AS PER ANNEXURE-F. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order dated 06.03.2026 passed in I.A.No.24 in O.S.No.214/2013 by the I Additional Civil Judge and JMFC, Kollegala, the petitioner/plaintiff is before this Court. 2. The facts of the case are that the petitioner has filed O.S.No.214/2013 seeking specific performance of the agreement of sale dated 25.10.1987. The respondents have filed their written statement and have also filed an additional written statement. On 25.01.2021, the petitioner filed I.A.No.24 under Order 6 Rule 17 of CPC seeking permission to amend the plaint. That application came to be dismissed by the trial Court by the impugned order. Aggrieved thereby, the petitioner/plaintiff is before this Court. - 3 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 3. While dismissing the application, the trial Court had observed that on perusal of the materials on record, the plaintiff, by filing I.A.No.21 in the year 2018, has included the relief of permanent injunction and has also claimed possession over the suit schedule property and now through the present application, he is seeking relief with regard to such possession. It is very much apparent that it is the plaintiff who has to prove his possession over the schedule property. Since the plaintiff is claiming possession over the schedule property, the relief in regard to such possession is always proper and necessary for complete adjudication of the case. Hence, the proposed amendment is proper and necessary for complete adjudication of the case. The trial Court had observed that the present application is a consecutive application filed under Order VI Rule 17 of CPC seeking amendment of the plaint. Earlier, the plaintiff had filed I.A.No.21 on 25.08.2018 and sought amendment of his plaint by insertion of additional paragraphs 5(a) to 5(d) and additional prayer for permanent injunction based on his alleged possession of suit schedule properties. It could be observed that the plaintiff is claiming his possession over the schedule property based on an alleged agreement of - 4 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 sale dated 25.10.1987 and subsequent agreement of sale dated 29.02.1998, and the plaintiff has filed the present suit in the year 2013. 4. The trial Court observed that, first, having claimed possession of the schedule property under the alleged sale agreements referred to above, the plaintiff had the earliest opportunity, i.e., at the time of filing the suit, to seek adverse possession against the defendants from the date of the said alleged agreement to the date of filing of the suit. The period exceeds 12 years. Subsequently, the plaintiff also filed an application under Order VI Rule 17, at which time, for the second time, he again had an opportunity to claim adverse possession as sought in the present application. But the plaintiff did not do so. It was observed that, subsequent to the amendment of the plaint as per the order of the Court dated 02.11.2018, the plaintiff went on to adduce his evidence on 03.07.2019 and thereafter sought several opportunities from 03.07.2019 to 20.12.2019 for further chief examination. On 20.12.2019, after completion of the chief examination, when the case was posted for cross-examination of the plaintiff, - 5 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 though he was present on 21.02.2020 and 10.02.2020, he was absent before the trial Court on 05.03.2020 and 11.12.2020. Finally, on 25.01.2021, after almost 8 years from the date of filing of the suit, the plaintiff filed the present application seeking amendment of the plaint. If the affidavit filed along with I.A.No.24 is perused, it finds no reasons for the delay caused, and there are no such bonafides which would show his due diligence in filing the present application. 5. The trial Court had observed that if the present application is allowed, the cause of action for the present relief sought in I.A.No.24 would revert back to the date of suit, but the plaintiff claims to have knowledge regarding possession of the schedule property right from the year 1987. When the plaintiff has knowledge regarding his possession and its adversity against the defendants, right from the year 1988, the trial Court could not believe what had stopped the plaintiff from seeking the present relief sought in the application at an appropriate time, even in the year 2013 or subsequently in 2018. Relying on a judgment of the Apex Court, the trial Court had observed that while considering an application under Order - 6 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 VI Rule 17, the Court should not merely look into the technicalities, but should look into the necessity of the proposed amendment for complete adjudication of the case on hand. But in the facts and circumstances of the present case, it is necessary and prudent to observe that it is not only a case where the proposed amendment is a mere technicality but the plaintiff had full knowledge regarding his alleged possession over schedule property and he slept over his rights for more than 8 years and now with a consecutive application has filed the present application and there is no due diligence on the part of the plaintiff. Accordingly, the trial Court had dismissed the application. 6. Learned counsel appearing for the petitioner/plaintiff submits that the trial Court had failed to consider the fact that the proposed amendment will not change the nature and character of the suit and it is very much necessary to adjudicate all the issues involved in the case. The trial Court had failed to take note of the fact that petitioner in the proposed amendment has taken a contention that the actual physical possession of the plaintiff over the suit schedule - 7 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 property is continuous and undisturbed settled possession, and the possession of the plaintiff has crossed the statutory period of 12 years. Alternatively, the plaintiff conferred his title by adverse possession. The trial Court had wrongly observed that the plaintiff had not filed the application earlier and he had filed the application after 8 years from the date of filing the suit and the plaintiff had not shown due diligence in filing the application. It is submitted that the trial Court had failed to note that the proposed amendment is not time barred and the case is at the stage of cross-examination of PW.1 and no prejudice will be caused to the respondents if the amendment is allowed and the defendants can always file their additional written statement and cross-examine PW.1. Though the trial Court held that the proposed amendment is necessary to adjudicate all the issues involved in the case, the Court had wrongly rejected the application on the ground of due diligence which is contrary to law and is liable to be dismissed. 7. Learned counsel appearing for the caveator/respondent Nos.1 and 2 submits that the trial Court had rightly dismissed the application. It is submitted that it will change the nature of - 8 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 the suit and there is no due diligence. Learned counsel had relied on the judgment of the Apex Court in the case of Mohan Lal (Deceased) through his LRS Kachru and Others Vs. Mirza Abdul Gaffar and Another1. He had relied on paragraph No.5 and 6, which read thus: “5. The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53- A only as a shield but not as a sword. It contemplates that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, he should be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise. 6. Even otherwise, in a suit for possession filed by the respondent, successor-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. The High Court has pointed out that he has not expressly pleaded this in the written statement. We have gone through the written statement. The High Court is right in its conclusion. Except vaguely denying 1 (1996) 1 SCC 639 - 9 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 that he is not ready and willing to perform his part, he did not specifically plead it. Under Section 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right is conditioned upon the transferee's continuous willingness to perform his part of the contract in terms covenanted thereunder.” 8. Learned counsel had also relied on the judgment of the Apex Court in the case of Karnataka Board of Wakf Vs. Government of India and Others2. He had relied on paragraph Nos.10, 11 and 12 which read thus: “10. Now we will turn to the aspect of adverse possession in the context of the present case. Appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession are mutually exclusive. Thus finding of the High Court that the title of Government of India over the suit property by way of adverse possession is assailed. 11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting 2 (2004) 10 SCC 779 - 10 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128). 12. A Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that: (SCC p.527, para 5) "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in - 11 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." 9. Relying on this, it is submitted that the petitioner cannot be permitted to amend the plaint and seek the prayer of perfecting the title by adverse possession and the trial court had rightly dismissed the application. 10. Having heard the learned counsels on either side, perused the material on record. The suit is filed in the year 2013. The petitioner has sought for specific performance of an agreement to sell dated 25.10.1987 by directing the defendants to execute the registered Sale Deed by conveying the ownership right of the suit schedule property in favour of the plaintiff. In case the defendants failed to execute the registered Sale Deed as directed by the Court, then the Court be pleased to order for executing the same in favour of the plaintiff through the court commissioner appointed by the Court. Later, the petitioner had filed I.A.No.24 seeking permission to amend - 12 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 the plaint. In the affidavit filed in support of the application, it is stated that the case is set down for the cross-examination of the plaintiff and, in a real sense, the trial is not yet begun. He has traced the cause of action for the suit basing upon the indentures of unregistered agreement to sell dated 25.10.1987 and 29.02.1988, since then, after the demise of his father, he is in settled, continuous and lawful undisturbed possession of plaint schedule property. As such, his possession is not disturbed by the said defendant and his LRs. Hence, it is only adverse and hostile to them but also confers title upon him. The said factum of continuous hostile possession though within the knowledge of said persons and non dispossession of the plaintiff from the said property accrues the title of ownership by way of adverse possession. As such, the proposed amendment is very much necessary. 11. In the entire affidavit, it is nowhere stated why the plaintiff is coming up with such a plea in the year 2021 in a suit filed in the year 2013. When an application is filed seeking amendment of the plaint, after the commencement of the trial, the plaintiff has to aver and prove that in spite of due diligence, - 13 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 the facts could not be brought to the notice of the Court or the facts could not be pleaded before the Court. The original suit is filed seeking specific performance. Thereafter, he sought an injunction. Now, he is seeking a declaration of title that he has perfected the title by adverse possession, which entirely changes the nature of the suit and would cause prejudice to the defendants. There is an observation by the trial Court in one of the paragraphs that the plaintiff claiming possession of the property is always proper and necessary for complete adjudication of the case, and the proposed amendment is proper, and the learned counsel for the petitioner relies on this finding. The said finding of the Court cannot be considered, and such an amendment cannot be allowed. However, when it comes to point No.2, the trial Court, considering the other aspects, had dismissed the application. 12. In the considered opinion of this Court, the trial Court had rightly dismissed the application, and this Court finds no reason to interfere. Hence, this Court is passing the following: ORDER i. Accordingly, the writ petition is dismissed. - 14 - HC-KAR NC: 2026:KHC:28993 WP No. 9688 of 2026 ii. All I.As. in this petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 2 Sl No.: 12