Gobinda Gupta v. Bedana Das, 1997 SCC OnLine Cal 416 : (1997) 4 ICC 280 at page 283
16. It is well settled that defendant can in his written statement take inconsistent defence. The Code of Civil Procedure does not prohibit inconsistent pleadings and there is nothing to prevent either party from setting up two or more inconsistent sets of material facts and claiming relief thereunder in the alternative. But the litigants who avail himself of the right to press inconsistent cases before the court and endeavours to establish both the alternatives by contradictory oral testimony, plainly places himself in peril and may find himself entangled in extricable difficulty, for evidence adduced in support of two absolutely inconsistent cases, which are mutually destructive could hardly be expected to secure confidence.
Arundhati Mishra (Smt) v. Sri Ram Charitra Pandey, (1994) 2 SCC 29 at page 31
3. It is settled law as laid down by this Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad[AIR 1951 SC 177 : 1951 SCR 277] that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally it was refused. It is not necessary to burden the judgment by copious references thereof. But each case depends upon its own facts. The essential requisites are that the delay in making the application; the reason therefor should be given and considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties cannot be permitted to be defeated. It is also settled law that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused. In those circumstances, permission to amend the pleadings could be granted.
This extract is taken from Arundhati Mishra (Smt) v. Sri Ram Charitra Pandey, (1994) 2 SCC 29 at page 32
4. The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated March 15, 1971 constitutes assertion of adverse possession, the limitation would start running against the appellant only from March 15, 1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to the High Court for disposal on merits according to law. The appeal is allowed but without costs.
