GOPALA GOWDA, J. ( 1 ) THIS appeal is filed by the defendants challenging the legality and validity of the impugned judgment and decree passed by the first Appellate Court in R. A. No. 44/91 dated 28. 6. 2000 in setting aside the judgment and decree passed by the addl. Munsiff, Kolar in o. S. No. 329/83 dated 20. 4. 1998 and remanding back the matter to the Trial Court to permit the plaintiff to carry out the amendment as sought for in I. A. No. 4 along with the observations made in the impugned judgment and decree urging various legal contentions. The rank of the parties in, this Judgment is referred as has been described in the original suit proceedings in the Trial Court for the sake of convenience. ( 2 ) CERTAIN brief facts which are necessary for considering therival contentions urged by the learned Counsel appearing on behalf of the parties are stated as hereunder:- the plaintiff filed original suit praying for grant of bare permanent injunction restraining the defendants from interferring with his alleged adverse possession in respect of the suit schedule property contending that he has been in exclusive possession and enjoyment of the suit schedule property by paying kandayam to the date of institution of the suit i. e. on 4. 11. 1983. The defendant filed a detailed written statement on 7. 4. 1984 traversing the plaint averments and denying the right of the plaintiff. It is further stated at Paragraph (9) that the land bearing Sy. No. 97/1 of Thondala village measuring 4-17guntas originally belonged to one Venkatappa; that he had two wives, first being Chowdamma and the 2nd being Akkeyyamma; that he died living behind two sons and daughter namely Munivenkatappa, the plaintiff, Bychappa, who is the father of the defendants; that bychappa has two wives, the first wife being Chowdamma who is no more and the 2nd wife being Narayanamma who is also no more and they are the sons of Bychappa through his second wife; that dodda Venkatappa and Chicka Venkatappa are also the sons of bychappa through his first wife Chowdamma; that the said munivenkatappa, the deceased plaintiff, divided from the joint family long back i. e. in the year 1945 itself and lived separately from the joint family; that on 25. 7. 1955 the plaintiff relinquished all his rights in Sy. 7. 1955 the plaintiff relinquished all his rights in Sy. No. 97/1 including the suit schedule property and other properties by taking Rs. 400a and executing a registered release deed; that the deceased plaintiff has no manner of right, title and interest or possession whatsoever to the suit schedule property and all other properties belonging to the family and that they are the owners in possession and enjoyment of the suit schedule property and accordingly, they prayed for dismissal of the suit. The Trial Court after considering the evidence on record has recorded a finding that the plaintiff is not in possession of the suit schedule property and has accordingly, dismissed the suit. Being aggrieved by the said judgment and decree, deceased plaintiff filed R. A. No. 44/91 under section 96 CPC urging various legal contentions. The appeal was filed on 3. 7. 1991. During the pendency of the appeal, an application for amendment of the plaint under Order 6 Rule 17 CPC was filed by the plaintiff on 17. 8. 1995 seeking to permit him to include paragraph 4 (a) after paragraph 4 and before paragraph 5 in the plaint, wherein he has sought to take up a plea that the plaintiff had been in possession and enjoyment of the suit schedule property in his own right, title and interest openly, continuously and notoriously and adversely to the rights of everybody including the defendants for over a period of 12 years, prior to the date of institution of the suit perfecting his title by law of adverse possession and being in lawful possession of the same upto the date of his death and thereafter the legal representative of the deceased plaintiff has inherited the property as adopted son and is in possession and enjoyment of the same as absolute owner of the schedule property so also to amend the prayer column and schedule to the plaint as stated in the said application. The said application was vehemently opposed by the defendants contending that the prayer sought for in the application cannot be granted. The said application was vehemently opposed by the defendants contending that the prayer sought for in the application cannot be granted. The learned appellate Judge after hearing the parties granted the relief as prayed for in I. A. No. 4 by placing reliance upon the judgment of this Court reported in 1975 (2) klj 239 wherein it is held that application for amendment can be allowed at any stage and that the suit filed for permanent injunction can be converted into the suit for partition. Further I. A. No. 5 filed under Order 41 Rule 27 CPC seeking permission to adduce additional evidence in support of the case of the plaintiff has been dismissed on the ground that since the proposed amendment as sought for in I. A. No. 4 is allowed, it is necessary for the parties to file additional written statement and as such I. A. No. 5 for adducing additional evidence does not arise for consideration at that stage. Accordingly, the first appellate Court has passed the impugned judgment and decree setting aside the judgment and decree passed by the lower Court and remanding the matter to the lower Court along with the observation made in the operative portion of the impugned judgment and decree. ( 3 ) THE correctness of the impugned judgment and decree passedby the first appellate Court is challenged in this appeal contending that the amendment sought for in I. A. No. 4 by the plaintiff would amounts to a new and different cause of action as the proposed pleading is not in the nature of amplification of the pleadings as the plaintiff has not pleaded in the original plaint that after the partition and after execution of the release deed dated 25. 7. 7. 1955 the adopted father of the deceased plaintiff was in continuous possession and enjoyment as the owner in possession and enjoyment adversely against the true owner, the defendants therein, and therefore his adopted father the deceased plaintiff had perfected his title and the lr of the deceased plaintiff stepped into the shoes of his adopted father after his death and he has been in possession adversely against the interest and title of the defendants and that under Article 65 to the schedule of the Indian Limitation Act, 1963 the plaintiff has the right to get declared his title by instituting proper suit seeking declaratory relief from the competent Civil Court after 12 years from the period of possession of the plaintiff becomes adverse to the defendants. ( 4 ) SRI Ramesh, learned Counsel for the appellant in support ofhis submission has placed reliance upon the judgment of the supreme Court in 1996 SC 2358 where in the earlier judgment of the Supreme Court reported in AIR 1964 SC 11 paragraph 18 is relied on, which paragraph is extracted hereunder for the purpose of considering the case of the parties: "it is, no doubt, true that, save in exceptional cases, leave to amend under Order 6, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading. The present is a fortiori so. The defendants here were not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed. The present is a fortiori so. The defendants here were not seeking to add any allegation nor to claim any fresh relief which they had prayed for in the pleading already filed. " the learned Counsel has also placed reliance upon the judgment of the Supreme Court in 1994 (2) SCC 29 and the judgment of this court reported in AIR 1992 KAR 271 with reference to Articles 64 and 65 of the schedule to the Limitation Act wherein it is held that mere possession of the plaintiff, beyond statutory period is not sufficient as it will have a serious consequence on the right of the real owner using title over the property; that a clear case will have to be made out and any half-hearted attempt should be discouraged. On the otherhand, the learned Counsel for the plaintiff has placed reliance upon the judgment of the Supreme Court in AIR 1957 SC 363 and also the judgment reported in ILR 2001 KAR 20 SHORT note ITEM No. 9 wherein placing reliance upon the Privy council judgment in CHARAN DAS vs AMIR KHAN, P. C. AND L. J. LEACH and COMPANY LIMITED vs JARDINE SKINNER AND COMPANY it is held that where the amendment sought for does not constitute the addition of a new cause of action or raise a different case, but amounts to not more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation and contended that the pleadings and the additional prayer in the amendment application does not constitute a new case and it is not a new cause of action. The learned Counsel has also placed reliance upon another judgment of this Court reported in ILR 1999 KAR 2348 to support the same contention. ( 5 ) AFTER hearing the teamed Counsel for the parties, I have gonethrough the pleadings in the plaint and the amendment application. It is not a disputed fact that the partition between the second plaintiff and the father of the defendants had taken place in the year 1945. It is also an undisputed fact that the registered release deed dated 25. 7. 1955 was executed by the deceased plaintiff the adopted father of the present plaintiff in respect of the very same property. It is also an undisputed fact that the registered release deed dated 25. 7. 1955 was executed by the deceased plaintiff the adopted father of the present plaintiff in respect of the very same property. Under articles 64 and 65 of the schedule to the Indian Limitation Act, if the period of limitation has commenced atleast from 1955, the date of execution of the release deed 12 years expired somewhere in the year 1967. No suit is filed by the deceased plaintiff the adopted father of the present plaintiff seeking the declaratory relief to declare that he has perfected his title in respect of the suit schedule property by way of adverse possession against the interest of the defendants continuously, adversely against their interest and thereby he had perfected his title to the property in question. Except a stray sentence in the plaint at paragraph (6), that the plaintiff has not stated plaintiff have perfected their title to the property in question by way of adverse possession. The suit filed by the plaintiff is for bare permanent injunction before the trial Court on certain set of facts is the cause of action for institution of the suit, merely stating that the plaintiff has been in exclusive possession and enjoyment of the plaint schedule property by paying Kandayam upto date in respect of the property in question is not sufficient to claim adverse possession and entitled for the declaratory relief. As per the law laid down by this Court in case in VENKATACHALAIAH's case that the plaintiff in support of his contention that he had been in exclusive possession and enjoyment, should have pleaded the same in the original suit which was filed on 4. 11. 1983. As per the law laid down by this Court in case in VENKATACHALAIAH's case that the plaintiff in support of his contention that he had been in exclusive possession and enjoyment, should have pleaded the same in the original suit which was filed on 4. 11. 1983. In VENKATACHALAIAH AND another vs NANJUNDAIAH (DECEASED BY L. RS.) AND others this Court referring to the judgments of the apex Court in air 1966 SC 605 and earlier judgment of this court in ILR 1990 (1) kar 610 has clearly laid down the law that adverse possession has a serious consequence upon the real owner losing his title over the property and clear case will have to be made out, the relevant paragraph 12 of the said case is extracted hereunder:- "in DANAPPA REVAPPA KOLLl vs GURUPADAPPA mallappa PATANASHETTI, ILR (1990) 1 Kant 610, this court came to the conclusion that the possession of a person bona fide believing that the property belongs to him cannot be considered to be adverse. In that case plaintiff contended that he was the owner of the suit property and alternatively pleaded adverse possession. If really the plaintiff was under the impression that he became the owner on 9. 11. 1955, there was no possibility of his having animus against the real owner of anybody else from that date. If he had held the property thereafter also with the same intention unless he pleads and proves that he changed his mind subsequently. Further the plaintiff led evidence to establish his both pleas of Benami and Adverse possession. Since the acceptance of the plea of adverse possession has serious consequence of the real owner losing his title over the property, a clear case will have to be made out and any half-hearted attempt in this regard should be discouraged. It cannot be believed that the plaintiff had in his mind that somebody else was the owner of the property on 9. 11. 1955, as his main case is that he himself became the owner on that day and was in possession over a statutory period is not sufficient to succeed in a plea of adverse possession unless it is accompanied by adverse animus. 11. 1955, as his main case is that he himself became the owner on that day and was in possession over a statutory period is not sufficient to succeed in a plea of adverse possession unless it is accompanied by adverse animus. " the deceased plaintiff at the time of the institution of the suit has not stated anything with regard to the adverse possession except stating that he has been in exclusive possession and enjoyment of the property. Having regard to the undisputed facts of this case, the relationship between the defendants and the deceased plaintiff the adopted father of the present plaintiff and the undisputed fact of family partition in the year 1945 among the Joint family members of the defendants and also the fact that the adopted father of the decease^ plaintiff has executed the release deed in the year 1955, in favour of the father of the defendants relinquishing his right upon the property despite executing the release deed in favour of the father of the defendants in respect of the property in question, if the deceased plaintiff had continued in possession adversely and continuously against the interest and right of the father of the defendants and then in respect of the property in question, the plaintiff's adopted father should have filed the declaratory suit under article 65 to the schedule of the Limitation Act longback. That has not been done in the instant case. Therefore, non-filing of the suit seeking the declaratory relief within the prescribed period of limitation under the provisions of the Limitation Act has acquired a valid right in favour of the defendants. Therefore, the plaintiff cannot be allowed at this stage to file an application seeking for an amendment to the plaint, as prayed in the interlocutory application IA. No. IV. Therefore, the plaintiff cannot be allowed at this stage to file an application seeking for an amendment to the plaint, as prayed in the interlocutory application IA. No. IV. Allowing the amendment as sought for by the plaintiff has caused great prejudice to the defendants as it would constitute altogether a new case and new cause of action which is totally impermissible in law, as the period of limitation prescribed under the provisions of the limitation Act for seeking declaratory relief either in favour of the plaintiff or his adopted father the deceased plaintiff has expired long long back and further half-hearted effort made by the plaintiff during the pendency of the appeal should not have been entertained by the appellate Court having regard to the undisputed facts referred to supra particularly having regard to the finding of fact recorded by the trial Court that he has not been in possession and enjoyment of the property in question. The plaintiff has not shown either before the first appellate Court or before this Court that the finding of fact recorded by the trial Court regarding the property in question as claimed by him is erroneous in law. Therefore, the law laiddown in the cases which are referred to in the earlier paragraphs of this judgment upon which much reliance is placed by the defendants counsel Mr. B. Rarnesh are squarely applicable to the facts of this case as the amendment application filed by the plaintiff before the first Appellate Court is hopelessly barred by limitation and therefore, the plaintiff is not entitled for the declaratory relief as the relief sought for by him to declare him as the owner of the property by adverse possession cannot be granted by this court as it is barred by limitation under the provisions of the Limitation Act. This important aspect of the matter should have been taken into consideration by the first appellate Court at the time of considering the application I. A. No. 4. Therefore, non-consideration of this legal aspect of the matter where 3070 INDIAN LAW REPORTS 2001 KARNATAKA SERIES the legal right is accrued in favour of ttie defendants has caused great injury to their case and the First Appellate Court in allowing i. A. No. 4 has erred in law, therefore, the defendants/appellants must succeed in this case. Therefore, non-consideration of this legal aspect of the matter where 3070 INDIAN LAW REPORTS 2001 KARNATAKA SERIES the legal right is accrued in favour of ttie defendants has caused great injury to their case and the First Appellate Court in allowing i. A. No. 4 has erred in law, therefore, the defendants/appellants must succeed in this case. ( 6 ) THE reliance placed upon the judgment of the Supreme Courtreferred to supra in the earlier paragraphs of this judgment by the learned couasel Sri D. V. Purushotham in support of his submission have no application to the facts of this case as in the judgment of the Supreme Court in AIR 1957 SC 363 the Supreme Court Placing reliance upon the another judgment of the Supreme Court in AIR 1957 SC 357 and also the Privy Council judgment in 47 Ind. App 255 in the leading case of LJ. LEACH AND COMPANY vs JARDINE skinner AND COMPANY, it has stated that courts have to decline to allow the amendments if fresh suit on the amended claim would be barred by limitation on the date of the application. The law laid in the said case by the Apex Court supports the case of the defendants and the other cases relied upon the plaintiff's counsel have no application of the fact situation of this case. Therefore, the reliance placed upon the same is misplaced, so also the judgment of this Court in ILR 2000 SHORT NOTE ITEM No. 9 has no application to the facts of this case having regard to the fact that as on the date of the suit and as 6n the date of filing of the application for amendment, the plaintiff had lost his right to seek the declaratory relief in respect of the property in question as he has perfected his title to the property in question. Hence, the impugned judgment and decree are liable to be set aside. ( 7 ) IN the result, therefore, this appeal is allowed. The impugnedjudgment and decree of the first appellate Court is set aside and the judgment and decree of the trial Court is restored. --- *** --- .