Supreme Court of India
KISHUNDEO ROUT & ORS.versusGOVIND RAO & ORS.
- Citation
- 2025 INSC 956
- Decided
- 8 August 2025
- Disposal
- Dismissed
- Bench
- B PARDIWALA
Holding
A plea of adverse possession must be expressly pleaded and framed as an issue in the trial court; it cannot be introduced for the first time in a first appeal, nor can the appellate court decide it without fresh evidence.
Summary
The plaintiffs filed a title suit in 1999 seeking cancellation of a sale deed and possession of the property. The trial court dismissed the suit, and the plaintiffs appealed; the First Appellate Court, however, introduced a new issue of adverse possession—never pleaded in the plaint—and decreed in favour of the plaintiffs. The defendants appealed to the High Court, which held that the adverse possession claim was not part of the original pleadings and could not be raised for the first time in appeal, setting aside the appellate decree. The matter reached the Supreme Court, which examined whether a plea of adverse possession may be introduced at the first appellate stage and whether the appellate court could decide it without fresh evidence. The Court reiterated that the foundation of an adverse possession claim must be laid in the pleadings, framed as an issue, and proved on the record, otherwise it cannot be entertained as a surprise claim. Consequently, the petition was dismissed, affirming the trial court's judgment and rejecting the appellate decree.
Issues considered
- Whether a plea of adverse possession, not pleaded in the plaint, can be raised for the first time in a first appeal under Section 96 of the CPC
- Whether the appellate court may decide an issue of adverse possession without taking fresh evidence when the plea was not part of the original pleadings
Legislation cited
- Code of Civil Procedure, 1908s. 107, s. 96
- Limitation Act, 1963s. Article 65, s. Section 27, s. Section 3
Headnote
Issue for Consideration Whether the High Court rightly set aside the order passed by the First Appellate Court by which it had accepted the plea of adverse possession raised by the plaintiffs for the first time in appeal and decreed the suit. Headnotes† Adverse possession – Plea cannot be raised for the first time in appeal – Suit filed by the plaintiffs for cancellation of sale deed, dismissed by trial court – Appeal filed by the plaintiffs – First Appellate Court accepting the plea of adverse possession raised by them for the first time, allowed
Subjects
Plea of adverse possessionPlea of adverse possession raised for the first time in appealAdverse possession not raised in pleadingsFirst Appellate Court accepted adverse possession pleaPlea of adverse possession must be laid in pleadingsFirst Appeal under Section 96 CPCAdverse possession based on factsAdverse possession question of factQuestion of lawMixed question of law and factsPrinciple of secundum allegata et probataPleadingsRule of pleadings
Judgment
[2025] 9 S.C.R. 113 : 2025 INSC 956
Kishundeo Rout & Ors.
v.
Govind Rao & Ors.
(Special Leave Petition (Civil) No. 22070 of 2025)
08 August 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
Whether the High Court rightly set aside the order passed by the
First Appellate Court by which it had accepted the plea of adverse
possession raised by the plaintiffs for the first time in appeal and
decreed the suit.
Headnotes†
Adverse possession – Plea – Not raised in pleadings, cannot
be raised for the first time in appeal – Suit filed by the plaintiffs
for cancellation of sale deed, dismissed by trial court – Appeal
filed by the plaintiffs – First Appellate Court accepting the
plea of adverse possession raised by them for the first time,
allowed the appeal and decreed the suit – Second appeal filed
by the defendants, allowed by High Court – Challenge to:
Held: 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 u/s.96, CPC – The plea of adverse
possession is always based on facts which must be asserted and
proved – A person who claims adverse possession must show on
what date he 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 and
whether his possession was open and undisturbed – These are
all questions of fact and unless they are asserted and proved, a
plea of adverse possession cannot be inferred from them – Unless
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
* Author
114 [2025] 9 S.C.R.
Supreme Court Reports
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 – In the
present case, if plea of adverse possession had been taken in the
plaint, and if that plea had been traversed by the defendants and
then proper issues framed, a heavy burden would have laid on
the plaintiffs to lead evidence in support of their hostile claim and
a corresponding opportunity of rebuttal would have been given by
law to the defendants – The question of adverse possession cannot
become the subject matter of adjudication in the absence of proper
plea, issue or proof – Petition fails, dismissed. [Paras 19, 29-31]
Pleadings – Rule of – Principle of secundum allegata et
probata – Effect:
Held: 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 – Pleadings and proof must correspond – No
party should be prejudiced by being taken by surprise by varying
the case as originally set up. [Paras 24, 25]
Adverse possession – Ordinarily, a question of fact however, in
certain cases, it may be a question of law or a mixed question
of law and facts – Determination of adverse possession –
When can the plea of adverse possession be allowed by the
Appellate Court to be taken up for the first time in appeal,
stated. [Para 27, 28]
Case Law Cited
Trojan and Co., Ltd. v. RM. N. N. Nagappa Chettier [1953] 1 SCR
789 – referred to.
Ganda Singh and Ors. v. Ram Narain Singh, ILR (1959) 1 P&H
385; Municipal Board, Etawah v. Mt. Ram Sri and Another, AIR
1931 All. 670; Krishna Churn Baisack and Others v. Protab Chunder
Surma, ILR 7 Cal. 560; Ram Singh v. Deputy Commissioner of Bara
Banki, ILR 17 Cal. 444; Lachhmi Sewak Sahu v. Ram Rup Sahu
and Others, AIR 1944 P.C. 24; Somasundarum Chetty v. Vadivelu
Pillai, ILR. 31 Mad. 531; Eshan Chunder Singh v. Shama Chunder,
11 M.I.A; Nepen Bala Debi v. Siti Kanta Banerji, 8 IC 41; Shiro
Kumari Debi v. Gobind Shaw Tanti, ILR 2 Cal. 418 – referred to.
[2025] 9 S.C.R. 115
Kishundeo Rout & Ors. v. Govind Rao & Ors.
List of Keywords
Plea of adverse possession; Plea of adverse possession raised/
taken for the first time in appeal; Adverse possession plea not raised
in pleadings; First Appellate Court accepted the plea of adverse
possession; Plea of adverse possession must be laid in the pleadings;
First Appeal under Section 96, CPC; Plea of adverse possession is
based on facts; Adverse possession is a question of fact; Questions
of fact; Question of law; Mixed question of law and facts; Principle of
secundum allegata et probata; Pleadings; Rule of pleadings.
Case Arising From
EXTRAORDINARY APPELLATE JURISDICTION: Special Leave
Petition (Civil) No. 22070 of 2025
From the Judgment and Order dated 28.02.2025 of the High Court
of Jharkhand at Ranchi in SA No. 151 of 2022
Appearances for Parties
Advs. for the Petitioners:
Shekhar Prit Jha, Ms. Tamanna Swami, Anurag Bansal.
Judgment / Order of the Supreme Court
Order
J.B. Pardiwala, J.
1. Delay condoned.
2. This petition arises from the judgment and order passed by the High
Court of Jharkhand dated 28.02.2025 in Second Appeal No. 151 of
2022 by which the Second Appeal filed by the respondents herein
(original defendants) came to be allowed thereby set asiding the
judgment and order passed by the First Appellate Court, i.e., District
Judge II, Deoghar in Civil Appeal No. 64 of 2018 preferred by the
petitioners herein (original plaintiffs)against the judgment and decree
passed by the Civil Judge (Sr Div) IV, Deoghar in Title Suit No. 35
of 1999 dated 18.08.2018.
3. For the sake of convenience, the petitioners shall hereinafter be
referred to as the plaintiffs and the respondents herein shall hereinafter
be referred to as the defendants.
116 [2025] 9 S.C.R.
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4. The plaintiffs instituted Title Suit No. 35 of 1999 in the Court of the
Civil Judge, Deoghar and prayed for the following reliefs:
“That under the above facts and circumstances the plaintiff
prays for following relief for a decree declaring that the
Sale deed bearing no. 256 is bogus, in operative and as
such fit to be cancelled. As such fit to be cancelled, And
for confirmation of possession.
In the event of this dispossession pending the suit then
for recovery of possession.
(ii) for permanent injunction restraining the defendant from
claiming herself as the owner of the suit property on the
basis of the forged and fabricated sale deed.
(iii) for the cost of the suit.
(iv) for any other relief or reliefs which the plaintiff may be
deemed entitled to.”
5. In the Title Suit referred to above the trial court framed the following
issues:
I. Is the suit, as framed, maintainable?
II. Is the suit barred by limitation?
III. Whether the suit is bad for non-joinder of the parties?
IV. Whether the sale deed dated 03.02.1997, vide no. 256,
executed by Sudama Devi, is illegal and without valuable
consideration?
V. Whether the sale deed dated 03.02.1997 was managed
by playing fraud/misrepresentation and undue influence
upon Sudama Devi?
VI. Whether Sudama Devi did not pass her right., title and
interest in the suit property to the defendant?
VII. Whether the possession of suit property was not given
to the defendant after the execution of alleged sale deed
dated 03.02.1997?
VIII. Is the plaintiff entitled for reliefs as claimed?
X. Whether there is any cause of action for filing the suit ?
[2025] 9 S.C.R. 117
Kishundeo Rout & Ors. v. Govind Rao & Ors.
6. The suit ultimately came to be dismissed vide the judgment and
decree dated 18.08.2018 while answering the issue nos. (i), (ii), (iii)
and (ix), the trial court recorded the following findings:
“9. As per above discussion, I have already found that
plaintiffs have not succeeded to prove their case that sale
deed no. 256 dated 03.02.1997 was managed by playing
fraud, misrepresentation and due influence upon Sudama
Devi and also failed to prove that the possession of suit
property was not given to the defendant after execution
of alleged sale deed and as such the suit filed by the
plaintiffs against the defendant is not maintainable in its
present form and there is no valid cause of action for the
present suit. Hence, the aforesaid issues are also decided
against the plaintiffs. Therefore, it is, hereby.”
7. The plaintiffs being dissatisfied with the judgment and decree passed
by the trial court dismissing the suit preferred First Appeal in the court
of the District Judge, Deoghar being the Civil Appeal No. 64 of 2018.
8. The First Appeal came to be allowed, and the suit instituted by the
plaintiffs came to be decreed. While allowing the First Appeal, the
First Appellate Court recorded the following findings:
“7.4 During the course of argument this court has made
a query to the Ld. Counsel for the respondents as to
whether after dispossession his client/s came in re-
possession of the suit property, to which there was no
satisfactory reply. The counsel verbally submitted that
his clients were temporary dispossessed for a day or two
and there after they regained the possession of the suit
property. What is evident from W.S is that dispossession
from suit property by the plaintiff came to the knowledge
of the defendants on 06.07.2000 or 07.07.2000 and the
W.S was filed exactly 11 days after that, and in the said
W.S there is mention of dispossession of the defendants.
Further from the date of evidences of DW-1 and DW-2 it
has come out that evidence of DW-1 was tendered in the
court on 29.04.2011 and his cross-examination was finally
completed on 30.06.2011. Further the evidence of DW-2
was tendered in the court on 06.05.2011 and she was
cross-examined on 05.08.2011, 29.08.2011, 8.11.2011 and
118 [2025] 9 S.C.R.
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finally it was completed on 09.02.2012. Further additional
evidence of DW-2 was file do 16.04.2015 and her cross-
examination was completed on 05.06.2015.
7.5 Further from the appreciation of affidavit and
corresponding crossexaminations, this court could not
find out a single instance wherein the defendants have
averred that they have regained their lost possession of
the suit property mentioned in schedule B. Rather it is an
admitted fact that defendant has lost possession of suit
property on 07.07.2000.
7.6 what is astonishing to see is that neither a separate
suit to reclaim the lost possession of suit property is filed
by the defendants nor any counter claim to reclaim the
lost possession is filed in their W.S. This means that the
defendants have not claimed their lost possession of the
suit property since 07.07.2000. Rather the information
petition was filed in the court in that regard and same is
exhibited by them as Exhibit-E. Further as per article 65 of
the schedule in Limitation Act, 1963, the period of limitation
as provided by statute for filing of suit for possession of
immovable property or any interest therein based on title
is 12 years, from the date when the possession of the
plaintiff becomes adverse to the defendant. Further from
the conjoint reading of section-3 R/w 27 of the Limitation
Act, the right and remedy both are extinguished on the
expiry of period of limitation as provided by the statute.
7.7 Since appeal is continuation of the suit, the Court while
sitting under appeal can make additional issues from the
material on record, in order to adjudicate the matter finally
and also to avoid multiplicity of proceedings between
the parties. Therefore this court is making an additional
issue and adjudicating it without taking further evidence
as everything is admitted in the record of the trial court.
The additional issue is “whether the possession of the
plaintiff became adverse to the defendants despite the
facts that defendants have registered sale deed in their
favour and whether such adverse possession has made
the defendant herein remedy-less to oust plaintiffs from
the suit property ?”
[2025] 9 S.C.R. 119
Kishundeo Rout & Ors. v. Govind Rao & Ors.
7.8 Further no evidence is required to adjudicate the
additional issue, because everything is available on record,
Before we proceed further, it is pertinent to quote the law
laid down by apex court in RAVINDER KAUR GREWAL
AND OTHERS v/s MANJIT KAUR AND OTHERS AIR
2019 SC 3827. It was held that “ there is absolutely no
bar for the perfection of title by way of adverse possession
whether a person is suing as the plaintiff or being sued as a
defendant. The statute does not define adverse possession,
it is common law concept, the period of which has been
prescribed statutorily under the law of limitation Art. 65 as
12 years. Law of limitation does not define the concept
of adverse possession nor anywhere contains a provision
that the plaintiff cannot sue based on adverse possession.
It only deals with limitation to sue and extinguishment
of rights. Once the right is extinguished another person
acquires perspective right which cannot be defeated by
reentry by the owner or subsequent acknowledgment of
his rights. The adverse possession requires all the three
classic requirements to coexist at the same time, namely,
nec-vi i.e. adequate in continuity, nec-claim i.e. adequate
in publicity and nec-precario i.e. adverse to a competitor,
in denial of title and his knowledge. Visible, notorious
and peaceful so that if the owner does not take care to
know notorious facts, knowledge is attributed to him on
the basis that for due diligence he would have known it.”
the old concept of the law the adverse possession can
only be used a shield and not as sword, as be overruled
by the Hon’ble Court in the aforesaid Judgment. And the
Appellate court while sitting under appeal has unfettered
powers under section 107 R/w 96 of the CPC to appreciate
the entire record on law and facts.
7.9 In the present case, it is an admitted fact by the
defendants that they are not in possession of the suit
property since 07.07.2000 and since that day the plaintiff
have forceful possession against the defendant and which
is within the knowledge of the defendants. Despite having
title documents of the property no efforts were made by
them to evict the trespassers/plaintiff and reclaim the lost
120 [2025] 9 S.C.R.
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possession. Even if it is presumed that the suit is dismissed
against the plaintiff’s and sale deed which is sought to be
declared void is held valid and legal, then also it would
not make any difference because the defendants have
lost their right as well remedy to get evicted the plaintiffs
and reclaim possession of the property, even on basis of
title. Merely holding a sale deed would not do anything in
their favour. Neither any separate suit is filed to reclaim
the possession nor any counter claim in the present suit
is alleged to reclaim the lost possession and it cannot
be said that defendants were not aware of the illegal-
adverse possession of the plaintiff. Therefore, plaintiffs
adverse possession ripened against the defendants. To
avoid multiplicity of proceedings this court is proceeding
thereunder.
7.10 Further, in the present case: the Original plaintiff
who has claimed that she did not receive even a single
farthing has expired during the pendency of the suit.
She did not come as plaintiff witness and except her no
one would have rightly deposed and substantiated as
to whether she received sale consideration or not. And
had she been alive, the defendant would have got the
chance to cross-examine her. In the present case, the
scenario is bit different. The original plaintiff could not give
her evidence and as such that could not be rebutted by
defendant. Whatever evidence the plaintiff gave can only
be hearsay evidence, and as such the same fall short
to qualify as direct evidence. Further, the documentary
evidence of defendants superseded the oral evidence
advanced by plaintiffs in all respects. Therefore this court
declares the sale deed of the plaintiff as valid document
and also the transactions done between the parties. BE
THAT IT MAY BE SO; as discussed earlier the adverse
possession of the plaintiffs have already ripened against
the defendants in year 2012, only w.r.t to property which
is alleged to be forcefully taken by them and not against
the other properties. As per settled law, such adverse
possession in light of aforesaid Judgment has given rights
to the original plaintiff’s (through her heir) to retain such
[2025] 9 S.C.R. 121
Kishundeo Rout & Ors. v. Govind Rao & Ors.
property (on which there is adverse possession) in their
own name.
7.11 Accordingly, the suit of the plaintiff is decreed in their
favor only for the suit property mentioned in schedule B of
the plaint. Further for properties mentioned in Schedule A
of the plaintiff, it was alleged that those properties were
already sold by the plaintiff to some other persons and
despite that those persons being necessary parties were
not made parties to the suit by the plaintiff or by the
defendants, therefore suit of the plaintiff can be decreed
only with respect to schedule B property. For rest of
the properties mentioned in other schedules the suit is
dismissed on merits, for want of necessary parties.
8. There shall be no order as to costs, parties to bear
their own costs. Office to call for Sherestadar report for
deficit court fee, if any and then after compliance, Office
to make Decree and file be consigned to records after
due compliance.
9. Therefore, the suit is decreed in favour of the plaintiffs
with respect to Schedule B property only and this court
holds the plaintiffs to be the exclusive owners thereof.
Accordingly, this Court sets aside the impugned Judgment
dated 18.08.2018 passed by the Ld. Court below and to
this extent, this Civil Appeal is Allowed.
10. All the pending applications, if any, are also hereby
disposed off.
11. O/c to draw decree sheet accordingly and consign
the file to records as per rules and send the original LCR
along with documents to the concerned court as per rules.”
9. Thus, the First Appellate Court accepted the plea of adverse
possession put up by the plaintiffs and decreed the suit.
10. The original defendants being dissatisfied with the judgment and
order passed by the First Appellate Court preferred Second Appeal
in the High Court.
11. The High Court formulated two substantial questions of law for its
consideration:
122 [2025] 9 S.C.R.
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“(i) Whether the learned lower Appellate Court was justified
in framing additional issue of adverse possession in an
appeal filed by the plaintiffs although the plaintiffs never
pleaded any case of, adverse possession in the plaint?
(ii) Whether the learned lower appellate court after Framing
the additional issue of adverse possession could decide
the case without taking further evidence in connection with
the additional issue of adverse possession?”
12. The High Court allowed the Second Appeal recording the following
findings:
“24. This Court is of the considered view that the condition
precedent to seek a relief of declaration of adverse
possession is perfection of title by adverse possession
prior to filing of the suit and it has been held that once
such right, title or interest is acquired, it can be used as a
sword by the plaintiff as well as a shield by the defendant
within ken of Article 65 of the Act and any person who has
perfected title by way of adverse possession, can file a
suit for restoration of possession in case of dispossession.
There is no concept of perfection of title by adverse
possession during the pendency of the suit between the
parties. As held above, adverse possession cannot be
decreed on a title which is not pleaded.
25. Upon perusal of the entire plaint and also the relief,
this Court finds that there was no foundational pleading
with regard to claim of title by adverse possession of the
property. Rather, essentially the suit was filed seeking a
declaration of the sale deed executed by the plaintiffs in
favour of the defendant as bogus, inoperative and seeking
a permanent injunction upon the defendant from claiming
herself to be owner of the suit property. At the time of
filing of the suit in the year 1999, the plaintiffs claimed
to be in possession of the property. The defendant had
filed a written statement stating that the defendant was
dispossessed from the property since 07.07.2000, that is,
during the pendency of the suit.
26. This Court finds that since there was no foundational
pleading in connection with claim of adverse possession in
[2025] 9 S.C.R. 123
Kishundeo Rout & Ors. v. Govind Rao & Ors.
the plaint or in the written statement, there was no occasion
for the learned 1st appellate court to frame an issue of
adverse possession. The learned 1st Appellate Court
recorded that in the written statement, the defendant had
stated that they were dispossessed from the property since
07.07.2000. The learned Appellate Court further recorded
that in spite of the defendant having been dispossessed
from the property since 07.07.2000 did not take any effort
to recover the property from the plaintiffs and accordingly
held that the adverse possession of the plaintiffs against
the defendant ripened in the year 2012, that is during the
pendency of the suit.
27. There are concurrent findings with regard to the
legality and validity of the sale deed bearing no.256 dated
03.02.1997 executed by the original plaintiff in favour of
the original defendant. However, the learned appellate
court framed additional issues on the point of adverse
possession of the plaintiffs and held that the adverse
possession matured in favour of the plaintiffs in the year
2012 and period commenced from the year 2000 when
the defendant was dispossessed.
28. This Court finds that framing of an issue of adverse
possession by the 1st appellate court was absolutely
beyond the pleadings of the parties and the appellate
court was not at all justified in holding that adverse
possession matured in favour of the plaintiffs in the year
2012 during the pendency of the suit which was filed in
the year 1999.
29. This Court is of the considered view that considering
the aforesaid facts and circumstances, framing of an issue
of adverse possession at the first appellate stage and
recording a finding that the adverse possession matured
during the pendency of the suit, is ex facie perverse and
is beyond the scope of the suit and beyond the pleading
in the suit. This Court is of the considered view that if plea
of adverse possession is to be considered and decided in
favour of the plaintiff, then the foundational pleading for
claiming adverse possession has to be there in the plaint
itself, which is totally absent in the present case.
124 [2025] 9 S.C.R.
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30. In view of the aforesaid facts and circumstances, the
first substantial question of law is decided in favour of the
appellants and against the respondents.
31. In view of the findings with regard to the 1st substantial
question of law, there is no question of taking any further
evidence on the point of adverse possession framed for the
first time by the learned 1st appellate court. Consequently,
the 2nd substantial question of law is also answered
against the appellants and in favour of the respondents.
32. Both the substantial questions of law having been
answered in favour of the appellants, this appeal is allowed.
Accordingly, the judgement and decree passed by the
learned 1st appellate court is set aside and consequently,
the judgement and decree passed by learned Trial Court
is affirmed.”
13. Thus, the High Court while allowing the Second Appeal took the
view that there was no foundational pleading led by the plaintiffs in
connection with the claim of adverse possession in the plaint or in the
written statement and there was no occasion for the First Appellate
Court to frame an issue of adverse possession.
14. The High Court also recorded a finding that the Original suit was
to declare the sale deed sham and bogus, which the plaintiffs were
unable to establish and accordingly, the suit was dismissed.
15. In the last, the High Court recorded a finding that as regards the
legality and validity of the sale deed bearing no. 256 of 03.02.1997
executed by the original plaintiff in favour of the original defendant
is concerned, the First Appellate Court concurred with the findings
recorded by the trial court.
16. In such circumstances referred to above, the petitioners-original
plaintiffs are here before this Court with the present petition.
ANALYSIS:-
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
[2025] 9 S.C.R. 125
Kishundeo Rout & Ors. v. Govind Rao & Ors.
case of Ganda Singh and Ors. 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 on what date he
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. These are all questions
of fact and unless they are asserted and proved, a 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 is the one of which the decision
is reported in Municipal Board, Etawah v. Mt. Ram Sri and another
reported in A.I.R. 1931 All. 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
126 [2025] 9 S.C.R.
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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 plea 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. 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.
22. In Ram Singh v. Deputy Commissioner of Bara Banki reported in
I.L.R. 17 Cal. 444, the plea of adverse possession was raised for
the first time in appeal before the Privy Council. Their Lordships
held that since there was no allegation of adverse possession in
the plaint and no issue raised as to it before the Court below they
could not entertain the plea.
23. Lachhmi Sewak Sahu v. Ram Rup Sahu and others reported in A.I.R.
1944 P.C. 24 is another case in which the same principle was laid
down. Also see Somasundarum Chetty v. Vadivelu Pillai reported in
I.L.R. 31 Mad. 531.
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
[2025] 9 S.C.R. 127
Kishundeo Rout & Ors. v. Govind Rao & Ors.
Westbury in Eshan Chunder Singh v. Shama Chunder reported
in 11 M.I.A.: —
“..........................the determination in a case 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 plaintiff has pleaded.................. and
is not taken to prove...................... they desire to have
the rule observed that the state of fact and the equities
and ground of relief originally alleged and pleaded by the
plaintiff, shall not be departed from.”
(emphasis supplied)
25. This rule that pleadings and proof must correspond, rests upon
the principle that no party should be prejudiced by being taken by
surprise by varying the case as originally Set up. In the words of
Mahajan, J., in Trojan and Co., Ltd. v. RM. N. N. Nagappa Chettier
reported in 1953 S.C.R. 789 (806). “It is well settled that decision
of a case cannot be based on grounds outside the pleadings of the
parties and it is a case pleaded that has to be found.”
26. The correct test as to when a plea of adverse possession, when not
taken in the plaint, can be raised later on in appeal, was laid down
by Calcutta High Court in Nepen Bala Debi v. Siti Kanta Banerji
reported in 8 I.C. 41 in the following words:
“Where no case of acquisition of title by adverse possession
is made in the plaint, nor is the question raised directly or
indirectly in any of the issues, the plaintiff ought not to be
allowed to succeed upon such a case. On the other hand,
as pointed out by this court in the case of Lilabati Misrain v.
Bishun Chobey, when the question reduces itself to one
of law, upon facts admitted or proved beyond controversy,
it is not only competent to the Court, but expedient in
the interest of justice to entertain the plea of adverse
possession, if such a case arises on the facts stated in
the plaint and the defendant is not taken by surprise. The
true test, therefore, to be applied to determine whether the
128 [2025] 9 S.C.R.
Supreme Court Reports
plea of title by adverse possession should be allowed to
be urged though not explicitly raised in the plaint, is, how
far the defendant is likely to be prejudiced if the point is
permitted to be taken.”
(emphasis supplied)
27. Ordinarily, the question of adverse possession is one of fact, resting
upon proof of numerous circumstances which go to establish the
several elements, indicating adverse character of the possession.
In certain cases, it may be a question of law, or, a mixed question
of law and facts as, where the decision rests upon inferences to be
drawn from facts which are admitted or established.
28. The determination of adverse possession depends upon sifting of
facts and circumstances, indicative of adverse possession, and
then, upon testing of the evidence in the light of the law applicable.
The Appellate Court may allow the setting up of the plea of adverse
possession for the first time in appeal provided, the facts on the record
are sufficient to support it, and the opposite party is not taken by
surprise, but otherwise, a declaration of title by adverse possession
will not be given where the claim is not set out distinctly in the
pleadings or in issues. In Shiro Kumari Debi v. Gobind Shaw Tanti
reported in I.L.R. 2 Cal. 418, Markby J., observed at page 242, that
where the question of 12 years’ possession had not been properly
raised either in the plaint or in the issues, and the defendant had
no proper notice that such a point was going to be raised, it was
not open to the lower appellate Court to declare in plaintiff’s favour
on the strength of the title which had not been alleged. Plaintiff’s
suit was dismissed.
29. In the case at hand if plea of adverse possession had been taken
in the plaint, and if that plea had been traversed by the defendants
and then proper issues framed, a heavy burden would have laid on
the plaintiffs to lead evidence in support of their hostile claim and a
corresponding opportunity of rebuttal would have been given by law
to the defendants. In this case it is inconceivable that the question of
adverse possession can become the subject- matter of adjudication
on this record in the absence of proper plea, issue or proof.
30. The above discussion leads us to the only conclusion, and that is,
that, unless the plea of adverse possession has been specifically
[2025] 9 S.C.R. 129
Kishundeo Rout & Ors. v. Govind Rao & Ors.
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.
31. In the result, this petition fails and is hereby dismissed.
32. Pending applications, if any, also stand disposed of.
Result of the case: Petition dismissed.
†
Headnotes prepared by: Divya Pandey
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