Mr.Y.B. Bolkar v. Nos.1

29702.2024WP.odtCORAM:ROHIT W. JOSHI, J.DATED :13th AUGUST, 2025JUDGMENT :The petitioner, who is the plaintiff in Regular CivilSuit No.111/2012 pending on the file of the learned CivilJudge, Junior Division, Badnapur, is aggrieved by order dated06.08.2024 passed by the said Court rejecting the applicationfiled by him for amendment of plaint, vide Exhibit-147. Thesaid suit is filed by the plaintiff seeking declaration that he hasbecome owner of the suit property, which is an agriculturalland by adverse possession and for injunction restraining therespondents/defendants from disturbing his possession overthe suit property. The plaint is dated 28.08.2015. 2.It is the case of the plaintiff that he had enteredinto an agreement of sale with respect to the suit propertywith the father of the defendants late Jagannath JairamMagare on 30.07.1994 and was placed in possession of thesuit property in terms of the said agreement. He claims thatalthough, the sale deed with respect to suit property could notbe executed in his favour, he was cultivating the suit property

39702.2024WP.odtwith the consent of deceased vendor Jagannath and wasaccordingly in lawful possession of the same. He raisescontention that in terms of agreement dated 30.07.1994, thetotal sale consideration of the suit property was agreed atRs.1,16,325/- out of which he had paid a sum of Rs.51,000/-and balance amount of Rs.65,325/- was agreed to be paid atthe time of execution of the sale deed. He contends that whenhe had approached the vendor for execution of sale deed inAugust, 1996, the vendor suggested that the petitioner shouldtake possession of the suit property and that the sale deed willbe executed in due course. It is his case that his name isrecorded in the possession column of the revenue record ofthe suit property from the year 2000. On this basis, thepetitioner claims to be in adverse possession of the suitproperty from the year 2000. It is his contention that after aperiod of 12 years, he has perfected his title by adversepossession and has become absolute owner of the suitproperty. 3.The respondents/defendants filed writtenstatement opposing the suit. The learned Trial Court framedthe issues in the matter, vide Exhibit-45 on 09.07.2018. The

49702.2024WP.odtpetitioner/plaintiff closed his evidence on 19.03.2024 by filingpursis Exhibit-109. Respondents/Defendants also closed theirevidence on 23.04.2024, vide pursis at Exhibit-134. The finalarguments of the respondents/defendants were alsocompleted on 06.07.2024. At this stage, when the suit wasposted for final arguments of the petitioner/plaintiff, theapplication for amendment of plaint came to be filed videExhibit-147. By the proposed amendment, thepetitioner/plaintiff sought to incorporate the prayer forspecific performance of contract with respect to agreementdated 30.07.1994 and also a decree for protection ofpossession in part performance of contract as per Section 53Aof the Transfer of Property Act (hereinafter referred to as “theT.P. Act”). Necessary pleadings in support of these prayerswere also sought to be incorporated. Thedefendants/respondents opposed the said application on thegrounds that the application was filed at a belated stage; ithad the effect of completely altering the nature of the suit andthat the prayers sought to be incorporated were barred bylimitation. 4.After hearing the parties on the said application,

59702.2024WP.odtthe learned Trial Court was pleased to reject the applicationfor amendment, vide order dated 06.08.2024, which isimpugned in the present petition. The learned Trial Court hasobserved that the application was filed at a very belated stagewhen the arguments of the respondents/defendants werecompleted and the suit was posted for arguments of thepetitioner/plaintiff. It is further held that the prayer sought tobe incorporated in the suit could have been sought while thesuit was filed. Likewise, the learned Trial Court has alsoobserved that prayer for specific performance of contract wasbarred by limitation having regard to pleadings in the plaintthat the defendants/respondents denied to execute the saledeed in favour of the petitioner/plaintiff on 04.04.2012 andthe application for amendment was filed on 25.07.2024 aftera period of over 12 years. It is also held that the relief ofprotection of possession in part performance and declarationof ownership by adverse possession could not go hand in handsince possession on the basis of agreement is permissivepossession and ownership on the basis of adverse possessioncan be claimed only on the basis of hostile possession. Thelearned Trial Court has also made reference to the manner inwhich the petitioner/plaintiff had prolonged the suit while

69702.2024WP.odtleading his evidence. It is observed that the petitioner/plaintifftook almost one year for completing his evidence and aftercompletion of his evidence made an application forappointment of Court Commissioner and thereafter alsosought multiple adjournments at the stage when the suit wasfixed for final arguments. 5.Mr. B.R. Kedar, learned Advocate for thepetitioner/plaintiff submits that delay by itself cannot be aground for rejection of application for amendment. It is hiscontention that the amendment is essential for deciding thesuit on merits, and therefore, the same ought to have beenallowed. He further contends that the nature of suit will notbe altered since the possession is claimed on the basis ofagreement of sale for the relief of protection of possession inpart performance of contract as also declaration of ownershipby adverse possession. As regards findings on the point oflimitation, the learned Advocate contends that limitationbeing a mixed question of law and facts, the application foramendment could not have been rejected on the said ground.He has placed reliance on the following decisions :-

79702.2024WP.odt(i)L.N. Aswathama and another Vs. P. Prakash, 2009(13)SCC 229 (ii)Shri Pandit Tukaram Dharrao (since deceased) by hisL.Rs. and others Vs. Shri Shankar Raoji Dharrao (sincedeceased) by his L.Rs. and others , 2009(6) Mh.L.J. 854(iii)Dadabhau Shankar Ghodke and others Vs. MohanlalKanhyalal Agrawal and another, 2003(1) Mh.L.J. 446(iv)Maganlal Harilal Doshi and others Vs. SarvadamanMansukhlal Doshi & others, 2003(1) Mh.L.J. 390(v)Rafiq and another Vs. Munshilal and another, AIR 1981SC 1400(vi)Surender Kumar Sharma Vs. Makhan Singh, 2009(10)SCC 626(vii)The judgment dated 30.01.2015 in Civil AppealNo.1323/2025 in the matter of Mount Mary Enterprises Vs.M/s Jivratna Medi Treat Pvt. ltd., (SC) (viii)The judgment dated 07.02.2012 in Writ PetitionNo.8145/2011 in the matter of Dela Gurudal Vanjari Vs.Uddhal Govardhan Rathod (Bombay High Court, Aurangabad)(ix)The judgment dated 21.02.2025 in Writ PetitionNo.4567/2024 in Writ Petition No. 4567/2024 in the matter

89702.2024WP.odtof Gopal Shivajirao Amnawar Vs. Kasturbai Baburao Madaneand others (Bombay High Court, Aurangabad). 6.Per-contra, Mr. Yogesh Bolkar, learned Advocatefor the respondents contends that the application is rightlyrejected by the learned Trial Court. He would submit that bythe proposed amendment, entire nature of suit is sought to bealtered; the prayer for specific performance is barred bylimitation in view of the pleadings in the plaint itself; theapplication was filed at the stage when the final arguments onbehalf of the respondents/defendants were completed and thematter was posted for arguments of petitioner/plaintiff; theapplication could not be allowed in view of bar under theproviso to Order VI Rule 17 of the Civil Procedure Code(hereinafter referred to as "the C.P.C.") and the conduct of thepetitioner/plaintiff as is apparent on the face of recordindicates his intention to prolong the suit. The learnedAdvocate for the respondents/defendants has placed relianceon the following decisions :- (i)D.S. Parvathamma Vs. A. Srinivasan, (2003)4 SCC 705

99702.2024WP.odt(ii)Mohan Lal (deceased) Through his L.Rs. Kachru andothers Vs. Mirza Abdul Gaffar and another, (1996)1 SCC 639(iii)Vijendra Kumar Goel Vs. Kusum Bhuwanla (Smt),(1997)11 SCC 457(iv)K. Raheja Constructions Ltd., Vs. Alliance Ministries andothers, 1995 Supp (3) SCC 17(v)Radhika Devi Vs. Bajrangi Singh and others, (1996)7SCC 486 (vi)Van Vibhag Karamchari Griha Nirman Sahkari SansthaMaryadit (Registered) Vs. Ramesh Chander and others,(2010)14 SCC 596(vii)M. Revanna Vs. Anjanamma (Dead) by LegalRepresentatives and others, (2019)4 SCC 3327.It is apparent from the reading of the plaint thatthe plaintiff/petitioner has specifically stated that after theagreement was entered in the year 1994, he was placed inpossession of the property in the year 1996. He claims that thepossession became adverse in the year 2000. On this basis, hehas claimed declaration of ownership over the suit property byway of adverse possession on the basis of alleged hostile

109702.2024WP.odtpossession for a period of over 12 years commencing from theyear 2000. By the amendment, the petitioner/plaintiff soughtto incorporate the reliefs of specific performance of contractand protection of possession under Section 53A of the T.P. Act.As regards the relief of specific performance of contract, it isclear from paragraph 5 of the plaint that according to thepetitioner/plaintiff, the respondents/defendants had createdobstruction to his alleged possession on 04.05.2012 and thatin the month of June, 2012, they had allegedly informed thepetitioner/plaintiff that since they are owners of the suitproperty, they will sell the same to any willing purchaser. Thisaccording to the petitioner/plaintiff is the cause of action forfiling the suit. The application for amendment was filed on25.07.2024 i.e. after a period of around 12 years from thedate on which the respondents/defendants had refused toexecute the sale deed in favour of the petitioner/plaintiff. Thisaccording to Article 54 of the Limitation Act will be thestipulated point of limitation for claiming specific performanceof contract. The limitation for claiming specific performance ofcontract thus expired somewhere around June, 2015. This isapparent from the averments in the plaint itself.

119702.2024WP.odt8.The learned Trial Court has rightly observed thaton the plain reading of the plaint and the application foramendment, it was absolutely clear that the relief of specificperformance of contract was barred by limitation. The learnedTrial Court has rightly rejected the application for amendmentwith respect to prayer for specific performance of contract onthis ground. 9.The contention of Mr. Kedar, the learned Advocatefor the petitioner that application for amendment could nothave been rejected on the ground of limitation is liable to berejected in view of judgment of the Hon'ble Supreme Court inthe matter Basavaraj Vs. Indira and others, (2024) 3 SCC 705,wherein it is held that when application for amendment ofplaint was filed in order to challenge a compromise decreeafter a period of five years from the date of compromisedecree, the challenge was apparently barred by limitation, andtherefore, the application for amendment was liable to berejected on the ground of limitation. Similar view is taken bythe Hon'ble Supreme Court in the matter Vijendra Kumar Goel(supra), in which on the basis of agreement of sale initiallysuit was filed for declaration and injunction and after the

129702.2024WP.odtperiod of limitation had lapsed prayer for specific performancewas sought to be incorporated by way of amendment. In thematter of K. Raheja Constructions Ltd., (supra) also prayer forspecific performance was sought to be incorporated afterexpiry of limitation in a suit, which was initially filed forpermanent injunction and the Hon'ble Supreme Court hasheld that such an amendment for incorporating time barredprayer for specific performance cannot be permitted. In thematter of Radhika Devi (supra), the Hon'ble Supreme Courthas held that when a right is vested with defendant onaccount of lapsing of period of limitation, the plaintiff cannotallowed to amend the plaint in order to incorporate reliefbarred by limitation since it would cause prejudice to thedefendants. In the matter of Van Vibhag Karamchari GrihaNirman Sahkari Sanstha Maryadit (supra) also a prayer forspecific performance of contract, which was sought to beincorporated after a period of 11 years after filing of the suit,was held to be liable to be rejected in view of bar of limitationunder Section 54 of the Limitation Act. The suit was filed fordeclaration of ownership and thereafter prayer for specificperformance was sought to be incorporated. It was held thatsuch amendment would alter the nature of the suit.

139702.2024WP.odtAccordingly, the application for amendment was held to berightly rejected in view of bar of limitation and also on theground that the nature of suit would be altered. 10.In view of the aforesaid judgments, there canhardly be any doubt that in case where a prayer, on the face ofpleadings, appears to be barred by limitation, such a prayercannot be allowed to be incorporated in the plaint by way ofamendment. It must be reiterated that the aforesaidjudgments relate to suits in which prayer for specificperformance of contract was sought to be introduced after aperiod of limitation had expired. The ratio of said judgmentsis squarely applicable to the facts of the present case. 11.In the considered opinion of this Court, thelearned Trial Court was absolutely right in rejecting theapplication for amendment qua the prayer for specificperformance of contract since the same is clearly barred bylimitation in view of the fact that according to thepetitioner/plaintiff, specific performance was refused by therespondents/defendants in the year 2012 and the application

149702.2024WP.odtfor amendment is filed in the year 2024. 12.When by way of proposed amendment, certainprayers are sought to be inserted and it appears that questionof limitation may arise for consideration, in such cases, theunderlined principle of dealing with an application underOrder VII Rule 11 of C.P.C. while rejecting a plaint on theground of limitation must be applied. If the plaint avermentsand the contents of the amendment application accepted ontheir face value demonstrate that the proposed reliefs arebarred by limitation, then application for amendment shouldbe rejected. However, if the question of limitation appears tobe a question that would require evidence for adjudicationthen the amendment should be allowed and issue of limitationshould be decided on merits. 13.As regards the relief pertaining to Section 53A ofthe T.P. Act, the learned Advocate for the respondents hasrightly placed reliance on judgment of the Hon'ble SupremeCourt in the matter of Mohan Lal (supra), wherein inparagraph no.3 and 4 it is held as under :-

159702.2024WP.odt"3. The only question is whether the appellant isentitled to retain possession of the suit property. Twopleas have been raised by the appellant in defence.One is that having remained in possession fromMarch 8, 1956, he has perfected his title byprescription. Secondly, he pleaded that he is entitledto retain his possession by operation of Section 53-Aof the Transfer of Property Act, 1882 (for short, 'theAct').4. As regards the First plea, it is inconsistent with thesecond plea. Having come into possession under theagreement, he must disclaim his right thereunderand plead and prove assertion of his independenthostile adverse possession to the knowledge of thetransferor of his successor in title or interest and thatthe latter had acquiesced to his illegal possessionduring the entire period of 12 years, i.e., uptocompleting the period of his title by prescription necvi nec clam nec precario. Since the appellant's claimis founded on Section 53-A, it goes without sayingthat he admits by implication that he came intopossession of the land lawfully under the agreementand continued to remain in possession till date of thesuit. Thereby the plea of adverse possession is notavailable to the appellant."14.In the aforesaid case, the defendant had raised

169702.2024WP.odttwo defences for retaining possession of the suit property, firstthat he had perfected title by adverse possession and secondly,that he was entitled to retain possession under Section 53A ofthe T.P. Act. In this context, the Hon'ble Supreme Court hasobserved in paragraph 4 of the judgment that both the pleaswere inconsistent and in order to claim protection underSection 53A, it was essential for the defendant to give up theplea of adverse possession. It is held that in order to claimprotection under Section 53A, a person must establish that hehas entered into possession of property lawfully and continuesto hold lawful possession of the property. As against this,adverse possession is not lawful or permissive possession, it isa possession hostile to the real owner and essentially illegal.The Hon'ble Supreme Court has expressly held that title isperfected by adverse possession when the real owneracquiesces into illegal possession of the occupier for a periodof 12 years from the date on which possession become adverseor hostile. 15.Thus, the relief of Section 53A and declaration ofownership by adverse possession are self destructive pleas. Inthat view of the matter, no fault can be found with the

179702.2024WP.odtimpugned order whereby the learned Trial Court has rejectedthe application with respect to prayer for incorporating therelief of Section 53A of the T.P. Act. 16.The learned Advocate for the respondents is alsojustified in placing reliance on the judgment of the Hon'bleSupreme Court in the matter of M. Revanna (supra), whereinit is held that leave to amend the plaint needs to be refusedwhen totally inconsistent case is sought to be introduced,which completely alters the fundamental character of the suit.By intending to incorporate the prayer for protection ofpossession under Section 53A, the basic character of the suitas originally filed, which is a suit for declaration of ownershipby adverse possession, will be changed. The learned TrialCourt is absolutely right in rejecting the application foramendment on this ground. 17.Apart from this, the petitioner/plaintiff has alsomiserably failed to satisfy the requirement of proviso to OrderVI Rule 17 of the C.P.C., which lays down that application foramendment of plaint cannot be allowed after commencement

189702.2024WP.odtof trial unless the parties seeking to amend the pleadingssatisfies the Court that despite due diligence the amendmentapplication could not be moved prior to commencement oftrial. The legal position in this regard is elucidated by theHon'ble Supreme Court in the matter of M. Revanna (supra).In the present case, apart from the bar under proviso to OrderVI rule 17 of the C.P.C., the conduct of the plaintiff also showsthat the application was not bonafide. As is observed in orderof the learned Trial Court, the plaintiff took almost one yearfor completing his evidence. After completion of evidence, theplaintiff moved an application for appointment of CourtCommissioner, which was rejected. Thereafter, the plaintiffsought several adjournments and avoided to proceed foradvancing final arguments. The learned Trial Court heard thearguments of respondents/defendants and posted the suit forarguments of the petitioner/plaintiff and at that stage, theapplication for amendment came to be filed. It is thus clearthat the application for amendment was filed at the fag end ofthe litigation after making an attempt to defer the finalarguments. The conduct of the petitioner/plaintiff is certainlynot bonafide.

199702.2024WP.odt18.The judgment in the matter of L.N. Aswathama(supra) relied upon by the learned Advocate for the petitioneris clearly distinguishable on the facts. In the said case, thedefendant claimed ownership of the suit property on the basisof a sale deed executed in his favour by one Gowramma. Heclaims that he was holding the possession of the propertysince the year 1996 as a tenant of Gowramma and thereafterhe purchased the same from her in the year 1985.Alternatively, he raised contention that if Gowramma is heldnot to be owner of the suit property then he had becomeowner by adverse possession by holding the possession of theproperty adverse to the interest of plaintiff for a period ofmore than 12 years. It is in this context that the Hon'bleSupreme Court held that the plea of ownership and adversepossession were not inconsistent pleas but merely alterativepleas, which were available to the defendants on the same setof facts. It will be pertinent to mention here that the plaintiffsin the said suit claimed that their predecessors had purchasedthe suit property from the State Government in the year 1940and claimed ownership over the suit property accordingly. Theplaintiffs were not claiming the suit property throughGowramma (vendor of the defendants). In the present case,

209702.2024WP.odtthe petitioner/plaintiff claims to have entered into agreementof sale with father of the defendants/respondents. He claimedto be placed in possession of the property by the father of thedefendants. He further claims that his possession had becomeadverse in the year 2000 and he had perfected his title byadverse possession in the year 2012. This is a peculiardistinguishing feature in the present case. The plaintiff isclaiming adverse possession against the legal heirs of hisvendor and is also trying to seek relief of specific performanceof contract and protection of possession under Section 53Aagainst them. It must, therefore, be held that the relief ofdeclaration of ownership by adverse possession and protectionof possession under Section 53A cannot be simultaneouslyclaimed by the petitioner/plaintiff. Similar is the case withrespect to judgment in the matter of Pandit Tukaram Dharrao(supra). In the said case, the defendants had claimedownership over the property on the basis of a sale deed andalso claimed to be in adverse possession of the propertyagainst the plaintiff. The case of adverse possession set up bythe defendants is accepted by this Court although thedefendants had also claimed ownership over the suit propertyon the basis of sale deed in his favour. This Court has held that

219702.2024WP.odtplea of adverse possession was available to the defendantssince he was not claiming title over the property on the basisof the sale deed executed by the plaintiff. In this context, therelevant observations of this Court are as under :- "19. Similarly, in the case of (1994) 2 SCC 29, theSupreme Court held that the pleas based on title andadverse possession are mutually inconsistent and thelatter does not begin to operate until the former isrenounced.20. In the present case, both the Courts below havefound on the basis of the evidence led before themthat the issue regarding the adverse possession hadbeen pleaded and proved adequately by theappellant. The plea of adverse possession raised bythe appellant is for setting up of the title which ishostile to the respondent/plaintiff who claimed to bea reversionary heir of Chandrabhagabai. Theappellant has not set up a title which was hostile tohis transferor of the suit property under the sale deedi.e. Ananda. Had the claim of the appellant of beingin possession, adverse to the title of Ananda beenraised, the appellant surely would not have beenpermitted to raise such inconsistent pleas. He couldnot have contended that he was in possession of thesuit property under the sale deed which wasexecuted by Ananda in his favour and yet claimedhostile possession against Ananda. The two pleaswould have been antithetical. The appellant is not

229702.2024WP.odtclaiming a title which is hostile to his transferorsinterest. His claim is adverse to the reversionary heiri.e. the defendant. Both the Courts below haveaccepted the evidence and held that the appellantwas in possession of the suit property from 1950. Hehad proved Exhibits 84 to 89 which indicated that hewas paying taxes for the suit property and that hisname was recorded by the Gram Panchayat inrespect of the suit property. Both the Courts belowhave held that the appellant is in possession of thesuit property i.e. open space and a house standing atCTS No. 1163 at Kasbe Niphad, Dist. Nasik, openly,to the knowledge of the respondent and without anydisturbance from him. Therefore, there is aconcurrent finding of fact recorded by both theCourts below indicating that the appellant is inpossession of the suit property for the last 50 yearsand he had acquired title to the suit property byadverse possession."19.The ratio of the said judgment is clearlyinapplicable to the facts of the present case where the plaintiffis claiming relief of specific performance of contract andprotection under Section 53A of the T.P. Act against thedefendants against whom relief of ownership by adversepossession is also sought. The judgment, when readmeaningfully having regard to the portion quoted in, bold,

239702.2024WP.odtgoes against the arguments of the petitioner. 20.The learned Advocate for the petitioner hasplaced reliance on the judgment of this Court in the matterDadabhau Shankar Ghodke (supra), wherein it is held that aplaintiff is entitled to take alternate pleas whether consistent,complimentary or inconsistent. The learned Advocate for thepetitioner has referred to paragraph 10 of this judgment. 21.The ratio of the said judgment is that wheninconsistent pleas are raised the Court cannot direct the partyto confine its evidence or argument to one of the twoinconsistent pleas. It is also held that when two inconsistentpleas are raised by a party, originally it may abandon ordestroy the other plea. However, the effect of such pleas is tobe considered by the Court when it enters the zone ofappreciation of evidence and considers relief to be granted. Itis held that the Court is not empowered to direct the party tochoose one of the two pleas. Foundation of the observation inthe judgment that the Civil Procedure Code and Evidence Actdo not prevent a party from taking alternate pleas whether

249702.2024WP.odtconsistent or inconsistent or even conflicting is based on aconcession. Paragraph No.10 of the judgment is reproducedhereinabove for ready reference:- "10.In the aforesaid three cases, the respective HighCourts were not confronted with the issue, if theCourt can direct a party, either while leading itsevidence or while arguing its case, to confine itsevidence and argument to only one of the twoinconsistent pleas. The observations that inconsistentpleas cannot survive are during the course ofappreciation. When a party takes inconsistent pleas,ordinarily, it may abandon/destroy one, for success inanother. In a given case, two conflicting andinconsistent pleas may even destroy both the pleas,cases, grounds of attack or grounds of defence. In agiven case, party may sacrifice one for the success inthe alternate plea. This is a matter to be consideredwhen the court enters the zone of appreciation ofevidence and grant of relief in accordance with thecase established. There is nothing either in the CivilProcedure Code or in the Evidence Act, as concededby Shri Deshpande, Advocate that prevents a partyfrom pleading alternate pleas, whether consistent,complimentary or inconsistent and conflicting.22.The Hon'ble Supreme Court has in the matter ofGanesh Prasad vs. Rajeshwar Prasad and others, 2023 SCC

259702.2024WP.odtOnline (S.C.) 256 held as under :- "37. .... All amendments of the pleadings should beallowed liberally which are necessary fordetermination of the real controversies in the suitprovided that the proposed amendment does notalter or substitute a new cause of action on thebasis of which the original lis was raised ordefence taken.38. Inconsistent and contradictory allegations innegation to the admitted position of facts ormutually destructive allegations of facts should notbe allowed to be incorporated by means ofamendment to the pleadings."23.The judgment of this Court in the matter ofDadabhau Shankar Ghodke (supra) to the extent it lays downthat the plaintiff is entitled to raise inconsistent andconflicting pleas does not appear to go hand in hand with thejudgment of the Hon'ble Supreme Court in the matter ofGanesh Prasad (supra). It needs to be reiterated that the saidobservation is also based on a concession and on that countalso said judgment cannot be followed as precedent.

269702.2024WP.odt24.The ratio of the said judgment cannot be appliedto the present case where amendment for incorporating theprayer for specific performance and protection under Section53A is sought to be incorporated in a suit for declaration oftitle by adverse possession in view of the judgments of theHon'ble Supreme Court in the matter of Mohan Lal (supra). 25.It will also be appropriate to refer to judgment ofthis Court in the matter of Vaishnavi Sai Shri MahalaxmiJagdamba Shikshan Sanstha Vs. Purva Vidarbha MahilaParishad, (2021) SCC OnLine Bom 1194, wherein afterreferring to several judgments of the Hon'ble Supreme Court,this Court has held that plaintiff can raise alternate andinconsistent pleas in the plaint so long as cause of action andrelief sought in the plaint is not materially affected. Relevantobservations in paragraph 39 of the judgment are reproducedhereinbelow :- "39. ...... alternate and inconsistent pleas cancertainly be permitted to be raised in a plaint, as longas the cause of action or relief were not materiallyaffected."

279702.2024WP.odt26.In this judgment, the learned Single Judge of thisCourt has after taking into consideration several judgments ofthe Hon'ble Supreme Court on the aspect of alternate andinconsistent pleas has held that although inconsistent pleascan be permitted to be raised in the plaint, the same shouldnot materially affect the cause of action and the relief soughtin the suit. In this context, it must be stated that the term,`cause of action', although is not defined under C.P.C. or anyother provision of law, it is now well settled that the term"cause of action" means a buddle of facts, which the plaintiffmust prove in order to obtain relief from the Court inaccordance with law. Facts on the basis of which the relief isclaimed constitute essential part of cause of action. TheHon'ble Supreme Court in the matter of A.B.C. Laminart Pvt.Ltd. and Ors. vs. A.P. Agencies, 1989(2) SCC 163, has held asunder :- "12. A cause of action means every fact, which, iftraversed, it would be necessary for the plaintiff toprove in order to support his right to a judgment ofthe Court. In other words, it is a bundle of factswhich taken with the law applicable to them givesthe plaintiff a right to relief against the defendant. Itmust include some act done by the defendant sincein the absence of such an act no cause of action can

289702.2024WP.odtpossibly accrue. It is not limited to the actualinfringement of the right sued on but includes all thematerial facts on which it is founded It does notcomprise evidence necessary to prove such facts, butevery fact necessary for the plaintiff to prove toenable him to obtain a decree. Everything which ifnot proved would give the defendant a right toimmediate judgment must be part of the cause ofaction. But it has no relation whatever to thedefence which may be set up by the defendant nordoes it depend upon the character of the reliefprayed for by the plaintiff."27.Cause of action in order to seek relief ofdeclaration of ownership by adverse possession and specificperformance and protection of possession under Section 53Aof T.P. Act cannot go hand in hand, in as much as, for theformer, the possession should be notorious and for the latter, itmust be lawful. 28.The contention of Mr. Kedar is that the cause ofaction in the original suit as framed with respect todeclaration of ownership by adverse possession and theprayers sought to be incorporated by way of amendment is

299702.2024WP.odtbased on the same agreement of sale, and therefore, cause ofaction will not be altered, if the plaint is allowed to beamended. I am afraid, the contention cannot be accepted.The cause of action in a suit for specific performance ofcontract is unlawful and hostile possession for a continuousperiod of 12 years whereas cause of action for specificperformance and Section 53A of the T.P. Act comprises of factof entering into agreement coupled with readiness, willingnessand the lawful and peaceful possession. It, therefore, goeswithout saying that the relief originally sought and one that issought to be incorporated by way of amendment are not onlyinconsistent but self contradictory. The cause of action for onenegates for the cause of action for other. Such an amendmentcannot be allowed. By virtue of the amendment, the plaintiffintends to alter and substitute new cause of action. Theplaintiff is seeking to incorporate inconsistent and conflictpleas, which cannot be permitted to be incorporated. 29.The judgment in the matter of Maganlal H.Dhoshi (supra) is relied upon by the petitioner to contend thatwhen the facts sought to be incorporated by amendment aredisputed facts, the application for amendment should not be

309702.2024WP.odtrejected on the ground that relief sought to be incorporated isbarred by limitation. The said judgment also categorically laysdown that if the prayers sought to be incorporated appears tobe barred by limitation in the light of pleadings anddocuments on record then such application can certainly berejected on the ground that it is barred by limitation. Thisjudgment also follows judgment of the Hon'ble Supreme Courtin the matter of L.J. Leach & Co. Ltd., Vs. M/s. JardineSkinner & Co., reported in AIR 1957 S.C. 357, wherein it isheld as under :- "It is no doubt true that Courts would, as a rule,decline to allow amendments, if a fresh suit on theamended claim would be barred by limitation on thedate of the application." 30.It is thus clear that if from the pleading in theplaint, it is apparent that the relief claimed is barred bylimitation, the application for amendment should be rejectedas a matter of rule. The judgments in the matters of SurenderKumar Sharma, Mount Mary Enterprises, Dela Gurudal Vanjariand Gopal Shivajirao Amnawar (supra) relied upon by thepetitioner lay down a general proposition of law that even ifthe application for amendment is filed at belated stage, the

319702.2024WP.odtsame can be allowed if it is essential for deciding the suit onmerits. As regards the judgment in the matter of Rafiq (supra)the said judgment is not relevant, in as much as, it lays downthat when an appeal is dismissed in default for the fault of theAdvocate, Courts must be liberal in restoring the appeal inview of the legal principle that party should not be made tosuffer for the mistake of his Advocate. Mr. Kedar contends thatthe suit ought to have been filed for specific performance ofcontract and protection of possession under Section 53A of theT.P. Act. He contends that due to mistake of the Advocate, thesuit was filed for seeking declaration of ownership by adversepossession. I am afraid, the said argument cannot be acceptedfor more than one reason. Firstly, it is well settled that theparties are completely bound by the stand taken in thepleadings. Parties cannot be allowed to disown the pleadingsby simply putting the blame at the doorstep of the Advocate.The sanctity attached to the pleading will be lost if suchcourse is adopted. Secondly, perusal of amendmentapplication will demonstrate that, although, the petitionerseeks to incorporate prayers for specific performance andprotection of possession under Section 53A of the T.P. Act, theprayer for declaration of ownership by adverse possession is

329702.2024WP.odtalso not given up. As already held above, both these prayerscannot be allowed to be taken simultaneously since they areself distructive. 31.What emerges from the above discussion is thatthe petitioner/plaintiff filed a suit for declaration of ownershipby adverse possession in which at the belated stage i.e. whenthe arguments were part heard, he filed an application foramendment in order to incorporate prayers for specificperformance of contract and protection of possession underSection 53A of the T.P. Act. The application is filed after aperiod of 12 years from the date of denial of specificperformance and as such the relief of specific performance isclearly time barred. The relief of Section 53A also cannot beclaimed in view of prayer for declaration of ownership byadverse possession in view of law laid down by the Hon'bleSupreme Court in the matter of Mohan Lal (supra). Thecontents of the application do not make out a case of duediligence, which is a statutory mandate of proviso to Order VIRule 17 of the C.P.C. and the conduct of thepetitioner/plaintiff also shows clear intention to prolong theadjudication of the suit on merits. Having regard to totality of

339702.2024WP.odtthe circumstances, no fault can be found with the wellreasoned judgment of the learned Trial Court rejecting theapplication for amendment of plaint. The petition is devoid ofany substance and is liable to be dismissed and accordinglydismissed. 32.Civil Applications, if any, stand disposed of.[ROHIT W. JOSHI, J.] sga/2025