Adverse Possession Plea Can't Be Raised For First Time At Appellate Stage : Supreme Court

Observing that a court's decision cannot rest on grounds beyond the parties' pleadings, the Supreme Court upheld the dismissal of a suit where the plaintiff, having not originally pleaded adverse possession, raised the claim only at the appellate stage. “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.”, the court said. “unless the plea of adverse possession has. been specifically raised in the pleadings, put in issue, and then cogent and convincing evidence led on a multitude of points, and an opportunity to refute the case made out by the plaintiff, 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.”, the court added. The bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan heard the case where the Petitioners-plaintiffs had filed a suit seeking cancellation of sale deed registered in favour of the Respondents. The suit was dismissed, however the First Appellate Court decreed suit in plaintiffs' favour accepting their plea of adverse possession which was not originally part of the pleadings. The High Court set aside the First Appellate Court's decision, holding that the plaintiffs did not lead a foundational pleading in connection with the claim of adverse possession in the plaint or in the written statement and that there was no occasion for the First Appellate Court to frame an issue of adverse possession. Upholding the High Court's ruling, the Court observed that since adverse possession formed the very foundation of the suit but was not pleaded at the outset, the plaintiff could not introduce it at the appellate stage, nor could the First Appellate Court frame a question on adverse possession when it was absent from the original pleadings. “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).”, the court observed. “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.”, the court added. Affirming the principle that the title by adverse possession is a fact-intensive claim requiring proper pleadings, issues, and proof, the Court noted that it was improper for the First Appellate Court to decree the suit based on the plaintiff's plea for adverse possession. “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.”, the court said. Accordingly, the petition being devoid of merit was dismissed. Cause Title: KISHUNDEO ROUT & ORS. VERSUS GOVIND RAO & ORS.Citation : 2025 LiveLaw (SC) 790Click here to read/download the order

Adverse Possession Plea Can't Be Raised For First Time At Appellate Stage : Supreme Court

Yash Mittal

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