ORDER : PRADEEP SINGH YERUR, J. Heard Sri H.R.Ananthakrishnamurthy, learned counsel for petitioner and Sri P.N.Hegde, learned counsel for caveator/respondent. 2. This petition is filed by the petitioner-defendant aggrieved by the order dated 18.10.2025 passed on I.A.No.VII in O.S.No.5226/2011 by X Additional City Civil and Sessions Judge, Bengaluru. 3. Parties are referred to as per their status before the trial Court. 4. Brief facts of the case are as under: The plaintiff filed a suit against the defendant to declare that the sale deed dated 31.03.2011 as null and void and not binding on the plaintiff. During the course of the trial, the defendant filed an application under Order VI Rule 17 of CPC seeking amendment of the written statement. The said application came to be objected to by the plaintiff. Upon consideration of the said application, the trial Court had rejected the same, which is the subject matter of this petition. 5. It is the vehement contention of learned counsel for the defendant that the impugned order passed by the trial Court is illegal, perverse and arbitrary and the same is liable to be set-aside. It is further contended by the learned counsel for defendant that the defendant has been in peaceful possession and enjoyment of the schedule property from 05.12.1998 and suit was filed by the plaintiff on 21.07.2011, which is more than 12 years from the date of actual possession of the defendant. When the matter was set down for arguments, the application came to be filed seeking amendment of the written statement by incorporating one paragraph seeking relief of adverse possession, which ought to have been allowed by the trial Court. 5.1 Learned counsel for defendant further contended that the trial Court has come to the conclusion that while pleading relief of adverse possession, the defendant must admit the title of the plaintiff, which is per se illegal and contrary to the well-established principle of adverse possession. 5.2. It is also contended by the learned counsel that the defendant has made an alternative defence by contending that in the event the defendant is unable to establish his title, he has perfected his title by adverse possession, which cannot be denied. 5.2. It is also contended by the learned counsel that the defendant has made an alternative defence by contending that in the event the defendant is unable to establish his title, he has perfected his title by adverse possession, which cannot be denied. The defendant is entitled to take divergent pleas, it is for the Court to decide as to whether he succeeds or not, but cannot curtail the rights of the defendant to take such pleas in a written statement at any stage, if so permissible. It is further contented by learned counsel that the impugned order passed by the trial Court is opposed to law and facts. 5.3 Learned counsel relied upon the following judgments in support of his case: 1. Kishundeo Rout & Ors. v/s Govind Rao & Ors. reported in Special Leave Petition (Civil) No.22070/2025. 2. Baldev Singh and Ors. v/s Manohar Singh and Ors. reported in Civil Appeal No.3362/2006. 3. Mahadevappa v/s shankareppa and Ors. reported in reported in W.P.No.113500/2015. 6. Per contra, learned counsel for plaintiff sustains the impugned order by contending that there is no illegality or perversity in the order passed by the trial Court. If the defendant claims the relief of adverse possession by way of an amendment, firstly, he has to admit the ownership of the plaintiff. In the absence of such statement in the written statement or in the amendment of the written statement, there cannot be an issue of adverse possession, which is the primary requirement when a person claims adverse possession. However, the defendant has not made any categorical statement in his amendment application seeking amendment to include the relief of adverse possession, wherein he has not categorically admitted the ownership of the schedule property claimed by the plaintiff. The trial Court has adjudicated these aspects very carefully and cautiously and by relying upon the judgment of the Hon’ble Apex Court, has rightly rejected the application, which does not call for interference. 6.1. Learned counsel for plaintiff relied upon the judgement of Hon’ble Apex Court in the case of Dagadabai (Dead) by Legal representatives v/s Abbas Alias Gulab Rustum Pinjari reported in (2017) 13 Supreme Court Cases 705 in support of his case. 6.2. Learned counsel for plaintiff also contended that there is no merit in the application filed, which is rightfully rejected by the trial Court. Hence, the present petition also deserves to be dismissed. 7. 6.2. Learned counsel for plaintiff also contended that there is no merit in the application filed, which is rightfully rejected by the trial Court. Hence, the present petition also deserves to be dismissed. 7. I have heard the learned counsel for petitioner-defendant and learned counsel for respondent-plaintiff and perused the impugned order and the judgements relied upon by the learned counsels for parties. 8. A short point that would arise for consideration is that: “Whether the impugned order calls for interference and consequently, whether the application deserves to be allowed?” 9. There is no dispute to the fact that the plaintiff has filed a suit for declaration. It is also not in dispute that the defendant has filed his written statement. The amendment sought reads as under: “Amendment sought for: Add as para 15(a) in the written statement : 15(a). Without prejudice to the submission made aforesaid and in the alternative it is respectfully submitted that this defendant has been in actual and factual possession of the properties described in the schedule to the plaint from 05.12.1998 to the knowledge of the plaintiff and her predecessors in title. The possession of the defendant is upon hostile and continuous of the knowledge of the plaintiff and her predecessors in title. Nec vi, nec clai, nec precario are made out. The defendant is perfected tile as adverse possession.” 10. After substantial arguments were addressed by learned counsels for parties, learned counsel for petitioner-defendant filed a memo, which reads as under: “It is respectfully submitted that the petitioner/defendant admitting the ownership of the schedule property claimed by the plaintiff/respondent without prejudice to the legal right to claim adverse possession. The memo may kindly be taken on record, in the interest of justice.” 11. The petitioner-defendant files a memo, wherein he has admitted the ownership of the schedule property as claimed by the plaintiff without prejudice to the legal right to claim adverse possession. 12. It is relevant to extract the observations made at paras-17, 18, 19, 20, 21, 24 and 30 of the judgment of the Hon'ble Apex Court in the case of Kishundeo Rout & Ors. v/s Govind Rao & Ors. as stated supra as follows: "17. Heard the learned counsel appearing for the petitioners. 18. We had the benefit of looking into few very old erudite judgments on the pivotal issue involved in the present litigation. v/s Govind Rao & Ors. as stated supra as follows: "17. Heard the learned counsel appearing for the petitioners. 18. We had the benefit of looking into few very old erudite judgments on the pivotal issue involved in the present litigation. One such judgment is a full Bench decision rendered by the Punjab High Court in the case of Ganda Singh and Ora. v. Ram Narain Singh reported in ILR (1959) 1 P&H 385. 19. It is a settled position of law that the foundation for the plea of adverse possession must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of trial would not be permitted to be raised for the first time at the stage of First Appeal under Section 96 of the Code of Civil Procedure (CPC). 20. The plea of adverse possession is not always a legal plea. Indeed, it is always based on facts which must be asserted and proved. A person who claims adverse possession must show date he These are what came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession continued. He must also show whether his possession was open and undisturbed. all questions of fact and unless they are asserted and proved, plea of adverse possession cannot be inferred from them. Therefore, in normal cases an appellate Court will not allow the plea of adverse possession to be raised before it. There is no doubt that in some cases, the plea will be allowed for the reason that in some form or the other allegation upon which it can be raised might have been made at the time and the facts necessary to prove the plea were brought before the court and proved. Such a case in the one of which the decision is reported in Municipal Board, Etawah. Mt. Ram Sri and another reported in A.I.R. 1931 A11. 670. In that case the plaintiffs based their suit on title extending over a period of thirty years,The plaintiffs case was that plaintiff 1 was the owner of the land and she had on that plot four small shops fetching a rent of about Rs. 80 a month. Plaintiff 2 is her lessee. 670. In that case the plaintiffs based their suit on title extending over a period of thirty years,The plaintiffs case was that plaintiff 1 was the owner of the land and she had on that plot four small shops fetching a rent of about Rs. 80 a month. Plaintiff 2 is her lessee. The shops were burnt down in June, 1926 and the land was laid vacant. The plaintiffs made an application to the Municipal Board for permission to build again on the land, but this permission was refused on 27th August, 1926, on the ground that the Municipal Board was the owner of the land and not the plaintiffs." The learned Judges of the Allahabad High Court held that a plea of adverse possession extending over a period of thirty years could be read into this claim and therefore although it was not specifically raised in the plaint yet it could be raised at a later stage. In other words, what they held was that the plea of adverse possession was included in the plea of title. In coming to this conclusion the learned Judges no doubt took notice of the fact that the plaintiffs had clearly stated that actual physical possession of the property in dispute was with them. [See: Ganda Singh (supra)] 21. A case of another type in which the plea of adverse possession was not allowed to be raised is Krishna Churn Baisack and others v. Protab Chunder Surma reported in I.L.R. 7 Cal. 560. In that case no plea of adverse possession for a period of twelve years was made in the plaint, but the plea was raised in the trial Court itself. The District Judge, however, took the view that the plaintiffs ought not be allowed to succeed on the ples of adverse possession because it had not been set out with sufficient distinctness in the plaint. With this view the learned Judges of the Calcutta High Court agreed. They based their decision on the ground that all the facts necessary for proving this plea had not been alleged before the Court. In that case the plaintiffs had not been in continued possession for a period of twelve years and they sought to tack on the previous possession of another. They based their decision on the ground that all the facts necessary for proving this plea had not been alleged before the Court. In that case the plaintiffs had not been in continued possession for a period of twelve years and they sought to tack on the previous possession of another. Therefore, it is clear that in disallowing the plea of adverse possession to be raised before them the learned Judges were actuated by the fact that fresh material would have to be brought before the Court in the form of allegations and counter-allegations before the plea of adverse possession could be held to be proved. They remanded that case for fresh decision on another issue. 24. it is important to remember that the basic rule of law of pleadings is, that a party can only succeed according to what he has alleged and proved, otherwise, on the principle of secundum allegata et probata, a party is not allowed to succeed, where he has not set up the case which he wants to substantiate. In the words of Lord Westbury in Eshan Chunder Singh v. Shama Chunder reported in 11 M.I.?.: "……………..the determination in a cang should be founded upon the case either to be found in the pleadings as involved in or consistent with the case thereby made It will introduce the greatest amount of uncertainty into judicial proceedings. if final determination of causes, is to be founded upon inferences, at variance with the case that the plaintif has pleaded. and is not taken to they desire to have the rule observed that the state of fact and the equities and prove ground of relief originally alleged and pleaded by the plaintiff, shall not be departed from." (emphasis supplied) 30. The above discussion leads us to the only conclusion, and that the plea of adverse possession has been specifically raised in the pleadings, put in issue, and then cogent and convincing evidence is led on a multitude of points, and an opportunity to refute the case is made out by the plaintiff, and availed of by the defendant, the plea of adverse possession cannot be allowed to be flung as a surprise, on an unsuspecting defendant, for the first time in appeal." 13. It is relevant to extract the observations made at paras-14 and 15 of the judgment of the Hon'ble Apex Court in the case of Baldev Singh and Ors. v/s Manohar Singh and Ors. as stated supra as follows: “14. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the Appellants in their application for amendment of the written statement, excepting the plea taken by the Appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the Plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily to counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. 15. This being the position, we are therefore of the view of the view that inconsistent plea can be raised by Defendants in the written statement although the same may not be permissible in the case of plaint, in the case of Modi Spinning and Weaving Mills Co. Ltd. And Anr. v. Ladha Ram and Co. 15. This being the position, we are therefore of the view of the view that inconsistent plea can be raised by Defendants in the written statement although the same may not be permissible in the case of plaint, in the case of Modi Spinning and Weaving Mills Co. Ltd. And Anr. v. Ladha Ram and Co. MANU/SC/0012/1976 : (1976) 4 SCC 320 , this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that Defendants/Appellants are not allowed to take inconsistent pleas in their defence.” 14. On careful perusal of the law laid down by the Hon’ble Apex Court in the judgements referred hereinabove, what unmistakably emerges is that in order to prove the plea of adverse possession, the foundation of the plea has to be raised in the pleadings and thereafter, an issue requires to be framed. Pursuant to which, the same is to be tried by leading sufficient and satisfactory evidence of the defendant. 15. It is also needless to mention that if there is no plea raised, then the party raising such relief would not be able to succeed in the matter due to lack of pleadings. Therefore, the fundamental question is that the party who makes such a claim for a particular relief has to make necessary pleadings in the written statement and the same has to be made as an issue on which evidence has to be led, which of course would be subject to denial by the other side. It is left to the Court whether it agrees or not on such materials placed by the party. Therefore, if a party does not make a plea, he would not be able to substantiate the same and consequently would not succeed in proving such a plea. 16. It is relevant to mention at this point that what is filed by the petitioner-defendant in the case on hand is an application under Order VI Rule 17 of CPC seeking amendment, more specifically at para-15A to the written statement, which is already extracted hereinabove. 17. By virtue of this amendment, the defendant is seeking adverse possession against the plaintiff. It is relevant to mention at this point that what is filed by the petitioner-defendant in the case on hand is an application under Order VI Rule 17 of CPC seeking amendment, more specifically at para-15A to the written statement, which is already extracted hereinabove. 17. By virtue of this amendment, the defendant is seeking adverse possession against the plaintiff. When the matter was being argued before this Court, the fact that the defendant has not categorically admitted the ownership of the schedule property as claimed by the plaintiff, due to which fact that the trial Court dismissed the application and on the question put-forth by this Court, the defendant has filed a memo admitting the ownership of the schedule property as claimed by the plaintiff without prejudice to the legal right to claim adverse possession. Therefore, this aspect has to be taken into consideration by the trial Court while considering the main suit, more specifically for the relief of adverse possession. 18. Coming back to the impugned order, the application is filed under Order VI Rule 17 of CPC. However, Order VI Rule 17 of CPC reads as under: "17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 19. It would be relevant to mention at this stage that the amendment of pleadings by the plaintiff and the defendant stands on a different footing altogether. It is no more res integra that the amendment of written statement is not governed by exactly the same principle. No doubt, the general principles are applicable to the plaintiff and the defendant with regard to amendments. However, when an application for amendment is filed by the defendant, the Courts are required to consider and to take a pragmatic view on such applications liberally by not rejecting it on technical reasons. 20. No doubt, the general principles are applicable to the plaintiff and the defendant with regard to amendments. However, when an application for amendment is filed by the defendant, the Courts are required to consider and to take a pragmatic view on such applications liberally by not rejecting it on technical reasons. 20. Coming to the aspect of dismissal of the application on the ground that the defendant has not admitted the ownership of plaintiff over the schedule property. However, now by virtue of a memo filed before this Court dated 04.12.2025, the defendant has admitted the ownership of the schedule property claimed by the plaintiff, without prejudice to the legal right to claim adverse possession. 21. Merely because the defendant has made an alternative plea of adverse possession in the amendment application, that would not mean he has succeeded and proved the said plea of adverse possession, as the trial Court would have to frame an issue and the defendant would have to prove the issue, which of course, the plaintiff would be at liberty to controvert, disprove and rebut the said claims so made by the defendant. But an opportunity is required to be given to the defendant to put forth his pleadings in the written statement by way of amendment. The amendment of pleadings can be made by either party at any stage of the proceedings for the purpose of deciding the real controversy in dispute or issue in dispute and while doing so, some of those amendments are required to be allowed, which do not cause injustice or change the nature of the suit or take away the defence or be erased by parties or any admissions that are already made, which enure to the benefit of the other side. 22. In the present case as well, if the defendant has already made any statement in his pleadings or in the evidence that goes in favour of the plaintiff, the same cannot be taken back or erased by virtue of the present amendment of the plea of adverse possession and also an opportunity to be given to the plaintiff to rebut the plea and the evidence if so adduced by the defendant. 23. 23. On the basis of the judgments relied upon by the learned counsel for the petitioner-defendant, I am of the opinion that the application filed for amendment deserves to be allowed and the trial Court has committed an error in dismissing the application, which is now sought to be rectified by admitting the ownership of the plaintiff over the schedule property. 24. Accordingly, I pass the following: ORDER i. This petition is allowed; ii. The impugned order dated 18.10.2025 passed on I.A.No.VII in O.S.No.5226/2011 by X Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside. Consequently, I.A.No.VII is allowed; iii. The petitioner-defendant is permitted to carry-out the amendment as sought for in I.A.No.VII; iv. It is needless to mention that the petitioner-defendant, in pursuance to the filing of this memo, categorically admits the ownership of the respondent-plaintiff over the suit schedule property.