A party cannot amend their pleadings to introduce a new cause of action, particularly when a suit on the new cause of action is barred.

( 1 ) THIS appeal under Order 43, Rule 1 (t) of the Civil P. C. is directed against the decision of the lower appellate Court dated May 31, 1982. The dispute in the appeal is with respect to a piece of land. The plaintiff asserted his title over this land claiming that this has been his Sehan and in his possession as such over which he had had miscellaneous user including a Nabdan (gutter ). For the defendants it was claimed, on the other hand, that the plaintiff has had no right, title or interest to this land, nor has he been in possession thereof and that the land has throughout been possessed by the defendants. The trial Court came to the finding that the land is held as Sehan by the defendants and not the plaintiff. The suit was accordingly dismissed on 4-2-1981. In the appeal filed by the plaintiff, there was an application made to amend the plaint. The amendment sought was twofold, namely, that the wall existing on the land in dispute belonged to one Ganesh and that the same had been acquired later by the defendants and the other amendment sought was that, in the alternative, the plaintiff had acquired prescriptive right of easement to flow water of the Nabdan over the said land. The amendment has been allowed by the lower appellate court and the suit remanded to the trial court for decision afresh on merit. Aggrieved, the defendants have preferred this appeal.

( 2 ) IN this appeal twofold points have arisen for decision, one is in respect of the legality of the order whereby the amendment in the plaint was allowed and the other is about the justification for the remand made by the lower appellate court to the trial court for decision afresh. In so far as the question concerning amendment relates, as I mentioned above, the amendment granted is two-fold. The trial Court made an observation to the effect that the plaintiff-respondent did not clarify the position with respect to the wall existing on a part of the Sehan, while the defendants claimed that the said wall belonged to them. In order to clarify this the plaintiff-respondent has sought an amendment saying that this wall belonged to one Ganesh and the same was acquired later by the defendant appellants. It does not appear that this may, in any manner, cause prejudice to the defendants appellants and the amendments made in that behalf may not, therefore, be seriously taken exception to. As regards the other part of the amendment allowed, however, the position is different.

( 3 ) FROM the averment contained in paragraph 3 of the plaint to which the respondents learned counsel made reference, it will be manifest that the plaintiff asserted himself to be the proprietor of the Sehan land. The contention is that he has been in possession over this land and the same has been used by him for various miscellaneous purposes including the flow of Nabdan up to the rasta existing to the north. The plaintiff alleges in other words that the Nabdan has flowed over the Sehan land in order to reach up to the Rasta existing to the north. In the entire plaint there is no whisper with regard to his claim in the alternative or otherwise of having a prescriptive right of easement to flow water over the disputed land. In Chapsibhai Dhanjibhai Dandv. Purushottam (AIR 1971 Sc 1878) at page 1886 it was held that a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a right of easement, but where he has pleaded ownership and has failed, he cannot subsequently turn round and claim that right as an easement by prescription. To prove the latter it is necessary to establish that it was exercised on someone elses property and not as an incident of his own ownership of that property. For that purpose, his consciousness that he was exercising that right on the property treating it as someone elses property is a necessary ingredient in proof of the establishment of that right as an easement. In the instant case, the plaintiff not merely