[Cites 6, Cited by 0]
Karnataka High Court
Smt.S.Radha vs Sri.K.C.Nagaraj on 22 January, 2026
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2026:KHC:3821
WP No. 1709 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 1709 OF 2026 (GM-CPC)
BETWEEN:
SMT. S. RADHA
W/O H. RAVI,
AGED ABOUT 70 YEARS
R/O MAKALI VILLAGE,
DASANAPURA HOBLI, NELAMANGALA TALUK,
BANGALORE RURAL DIST. - 562 123
REP. BY HER POWER OF
ATTORNEY HOLDER AND HUSBAND
SRI. H. RAVI
S/O LATE HANUMANTHAPPA,
AGED ABOUT 80 YEARS,
R/O MAKALI VILLAGE,
DASANAPURA HOBLI, NELAMANGALA TALUK
BANGLORE URBAN DIST - 562 123
...PETITIONER
(BY SRI. YOGESH V. KOTEMATH, FOR
SRI. VIRUPAKSHAIAH P.H., ADVOCATES)
Digitally
signed by AND:
CHANDANA
BM 1. SRI. K. C. NAGARAJ
Location: S/O LATE CHIKKAVEEREGOWDA,
High Court of AGED ABOUT 55 YEARS,
Karnataka R/O KEMPALINGANAHALLI VILLAGE,
KASABA HOBLI, NELAMANGALA TALUK
BANGALORE URBAN DIST - 562 123
2. SRI. N. L. SATHISH KUMAR
S/O N. R. LAKSHMANAIAH,
AGED ABOUT 45 YEARS
R/O NO.117, 1ST CROSS,
SUBHASNAGARA,
OPP. TO KEB OFFICE, NELAMANGALA
BANGALORE URBAN DIST - 562 123
...RESPONDENTS
(BY SRI. PREREET JAIN B., ADVOCATE)
-2-
NC: 2026:KHC:3821
WP No. 1709 of 2026
HC-KAR
THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF
INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 18.10.2025
ON IA NO. 3 IN OS NO. 240/2017 VIDE ANNX-F PASSED BY THE I ADDL.
CIVIL JUDGE AND JMFC NELAMANGALA BY ALLOWING THE
APPLICATION FILED BY THE PETITIONER BEARING IA NO. 3 UNDER
ORDER 6 RULE 17 OF CPC VIDE ANNX-D.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
This petition by the plaintiff in O.S.No.240/2017 is directed
against the impugned order dated 18.10.2025 passed by the
I Additional Civil Judge and JMFC in Nelamangala, whereby the
application-I.A.No.3 filed by the petitioner-plaintiff seeking
amendment of the plaint by incorporating the additional prayer for
declaration and corresponding declaration by way of adverse
possession and corresponding pleadings in this regard was
rejected by the trial Court.
2. Heard learned counsel for the petitioner and learned
counsel for respondent Nos.1 and 2 and perused the material on
record.
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3. A perusal of the material on record will indicate that the
petitioner-plaintiff having initially instituted a suit for permanent
injunction and other reliefs in relation to the suit schedule
immovable property, the respondents-defendants are contesting
the suit and at the stage of cross examination of PW1, the
petitioner-plaintiff moved the instant application seeking
amendment of the plaint as hereunder:
INTERLOCUTORY APPLICATION FILED
UNDER ORDER 6 RULE 17 OF THE CIVIL
PROCEDURE CODE
That for the reasons sworn to in the
accompanying affidavit the plaintiff respectfully prays
that this Hon'ble Court may be pleased to permit her to
amend the plaint as under in the interest of justice and
equity.
AMENDMENT SOUGHT FOR
1 After paragraph-9, to add the following
paragraphs.
(108). It is submitted that the possession of the
plaintiff in the schedule property is adequate in
continuity in public and adverse to the defendants and
their predecessors in title and accordingly the plaintiff
has perfected her title by way of an adverse
possession and the right of the defendants and their
predecessors in title is extinguished in view of the
facts narrated above and thus the defendants have no
manner of right, title or Interest over the schedule
property nor they are in possession of the same. Even
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though the plaintiff has perfected her title by way of
adverse possession, the defendants are trying to
dispossess the plaintiff illegally and forcibly on
1.1.2017 by denying the title of the plaintiff and hence,
the plaintiff is seeking the relief of declaration to
declare that she has perfected her title over the
schedule property by way of adverse possession.
2. In prayer column to add the following prayer
after prayer (a) as under;
(aa). Declare that the plaintiff being in
unauthorized possession has perfected her title over
the suit schedule property by way of adverse
possession and the right of the defendants and their
predecessors in title is extinguished; and"
4. The said application having been opposed by the
respondents, the trial Court proceeded to pass the impugned order
dismissing the application on the ground that a plea for declaration
of title by way of adverse possession was not permissible without
the petitioner-plaintiff admitting the right or title of the respondent.
Aggrieved by the impugned order, the petitioner is before this Court
by way of the present petition.
5. A perusal of the material on record will indicate that the
trial Court has proceeded to reject the amendment application
solely on the ground that the proposed amendment cannot be
sought for by the petitioner-plaintiff. The said finding recorded by
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the trial Court is contrary to well settled principles of law governing
amendment of pleadings by various judgments of the Hon'ble Apex
Court and this Court including the judgment of the Hon'ble Apex
Court in the case of Rajesh Kumar Agarwal v. K.K. Modi and
others - AIR 2006 SC 1647, wherein it is held that the
merits/demerits of the proposed amendment cannot be gone into
while considering an application for amendment and all rival
contentions would necessarily have to be decided after a full-
fledged trial and not at the stage of consideration of an application
for amendment.
6. In this context, it is pertinent to note that the trial Court
has prejudged the entire issue and has come to the erroneous
conclusion that the petitioner is not entitled to plead adverse
possession without first admitting the right and title of the
respondent-defendant, which finding is clearly contrary to the
judgment of the Hon'ble Apex Court referred to supra as well as
well settled principles governing amendment of pleadings as held
by the Apex Court in the cases of LIC v. Sanjeev Builders (P) Ltd.
- (2022) 16 SCC 1, Dinesh Goyal @ pappu v. Suman Agarwal
(bindal) & ors. - 2024 INSC 726 and a co-ordinate Bench of this
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Court at Dharwad Bench in the case of Shri Mohammadrafi and
Anr., Vs. Bandenawaz and Ors - W.P.108512/2025 dated
16.12.2025. Under these circumstances, I am of the considered
opinion that the trial Court has fell in error in rejecting the
amendment application warranting interference by this Court in the
present petition.
7. Insofar as the contention urged by the learned counsel
for the respondents placing reliance upon the judgment of the
Hon'ble Apex Court in the case of Dagadabai v. Abbas - (2017) 13
SCC 705, in order to contend that unless the petitioner admitted
the title and right of the respondent, it is not open for him to plead
adverse possession is concerned, the legality, validity, correctness
etc., of the plea of adverse possession to be considered by the trial
Court would arise only after permitting such amendment and
without permitting amendment, the question of refusing
amendment on the ground that such a plea is not permissible
would tantamount to touching upon the merits of the proposed
amendment which is impermissible in law. Under these
circumstances, the said contention urged by the learned counsel
for the respondent cannot be accepted.
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8. Insofar as the contention urged by the learned counsel
for the respondent that the proposed amendment was highly
belated and barred by limitation is concerned, in the light of the well
settled principles of law governing principles of law as enunciated
in Sampath Kumar Vs. Ayyakannu and Ors. - AIR 2002 SC
3369 and LC Hanumanthappa v. HB Shivakumar - AIR 2015 SC
3364, I deem it just and appropriate to set aside the impugned
order and allow I.A.No.3 for amendment subject to the condition
that the proposed amendment shall not relate back to the date of
the suit but shall be reckoned/considered from the date of the
application for amendment and by leaving the question of imitation
open to be decided by the Trial Court along with other issues
involved in the suit.
9. In the result, I pass the following:
ORDER
i) The petition is hereby allowed.
ii) The impugned order dated 18.10.2025 in
I.A.No.3 in O.S.No.240/2017 on the file of I Additional
Civil Judge and JMFC, Nelamangala, is hereby set
aside.
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iii) I.A.No.3 filed by the petitioner-plaintiff before the
Trial Court is hereby allowed subject to the condition
that the proposed amendment shall not relate back to
the date of the suit but shall be reckoned/considered
from the date of the application for amendment i.e.,
10.03.2020 and the question/issue of limitation is
kept/left open to be decided by the Trial Court.
iv) Liberty is reserved in favour of the respondents-
defendants to file additional written statement to the
amended plaint and take up all contentions including
limitation.
v) The Trial Court shall consider the same by
providing sufficient and reasonable opportunity to both
the parties and proceed further in accordance with law
vi) All rival contentions on all aspects of the matter
are kept/left open and no opinion is expressed on
merits/demerits of the rival contentions.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
MDS
List No.: 1 Sl No.: 29
