The doctrine of adverse possession permits a person who has remained in open, continuous, and hostile possession of immovable property for the statutory period of twelve years (under Article 65 of the Limitation Act, 1963) to perfect title against the true owner. This doctrine, being an exception to the sanctity of ownership rights, has been subject to strict judicial scrutiny. Courts in India have consistently emphasised that adverse possession must be pleaded with precision and proved with cogent evidence.
In Kishundeo Rout & Ors. v. Govind Rao & Ors. (2025 INSC 956), the Supreme Court of India was called upon to decide whether a plea of adverse possession can be raised for the first time at the appellate stage, in the absence of foundational pleadings in the plaint. The judgment is significant as it reconciles the balance between substantive justice and procedural discipline in civil litigation.
Background of the Case
The plaintiffs instituted Title Suit No. 35 of 1999 before the Civil Judge, Deoghar, seeking cancellation of a sale deed dated 03.02.1997, confirmation of possession, and consequential reliefs. The trial court dismissed the suit in 2018, holding that the plaintiffs had failed to prove their allegations of fraud and misrepresentation.
On appeal, the District Judge (Civil Appeal No. 64 of 2018) reversed the trial court’s decree and, suo motu, framed an additional issue on whether the plaintiffs had perfected title by adverse possession. Relying upon Ravinder Kaur Grewal v. Manjit Kaur (2019) AIR SC 3827, the appellate court held that the plaintiffs’ possession since 2000 had ripened into ownership by 2012, and decreed the suit partially.
In Second Appeal No. 151 of 2022, the Jharkhand High Court intervened, holding that there was no foundational pleading of adverse possession in the plaint or written statement. Consequently, it set aside the appellate decree and restored the trial court’s dismissal.
Aggrieved, the plaintiffs approached the Supreme Court.
Issue
The pivotal question before the Supreme Court was:
- Can a plea of adverse possession be raised for the first time in appeal, despite the absence of foundational pleadings at trial?
Supreme Court’s Analysis
I. Pleadings and Proof Go Hand in Hand
The Court reiterated the principle of secundum allegata et probata—a party can only succeed on the case it has pleaded and proved. Without proper pleadings, the opposite party is deprived of the opportunity to rebut evidence.
The Court relied on Trojan & Co. v. Nagappa Chettiar (1953 SCR 789), where it was held that decisions cannot be based on matters outside pleadings
II. Adverse Possession: A Fact-Intensive Plea
The Court emphasised that adverse possession is not a mere legal argument but a factual claim requiring detailed proof:
- Date of entry into possession,
- Nature and character of possession,
- Knowledge of the true owner,
- Continuity, publicity, and hostility of possession.
Without these particulars, the plea cannot succeed.
III. Precedents Relied Upon
The judgment referred to a range of precedents:
- Ganda Singh v. Ram Narain Singh (1959 P&H) – Adverse possession must be specifically pleaded; otherwise, it cannot be entertained in appeal.
- Krishna Churn Baisack v. Protab Chunder Surma (ILR 7 Cal 560) – Plea raised in trial but inadequately pleaded; disallowed.
- Ram Singh v. Deputy Commissioner, Bara Banki (ILR 17 Cal 444, PC) – Adverse possession raised for the first time before the Privy Council; not entertained.
- Lachhmi Sewak Sahu v. Ram Rup Sahu (AIR 1944 PC 24) – Same principle reaffirmed.
- Nepen Bala Debi v. Siti Kanta Banerji (8 I.C. 41, Cal HC) – Exception: If facts are admitted and no prejudice is caused, the plea may be considered.
IV. The Governing Test
The Court distilled the test:
General Rule: A plea of adverse possession cannot be raised for the first time on appeal.
Exception: If facts necessary for the plea are already on record, admitted, and no prejudice is caused, the appellate court may consider it.
In the present case, since there was no pleading or evidence, the appellate court erred in introducing adverse possession suo motu.
Critical Observations
1. Procedural Discipline
The ruling underscores the importance of procedural discipline in pleadings. Allowing new pleas at the appellate stage undermines fairness and causes surprise to the other side.
2. Appellate Powers under CPC
Although Section 107 CPC empowers appellate courts to frame additional issues, such power cannot override the fundamental rule that pleadings form the foundation of a case.
3. Nature of Adverse Possession
The Court reaffirmed that adverse possession can now be used both as a sword (basis of a suit) and shield (defence), post-Ravinder Kaur Grewal. However, this does not dilute the requirement of foundational pleadings.
4. Balancing Substantive Justice with Procedure
While courts often prioritise substantive justice over technicalities, this judgment highlights that procedural safeguards are themselves part of justice, as they prevent surprise and ensure a fair trial.
Key Highlights of the Decision
Justice J.B. Pardiwala and Justice R. Mahadevan observed:
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 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 subjectmatter of adjudication on this record in the absence of proper plea, issue or proof.
Broader Jurisprudential Significance
I) Property Rights and Constitutional Context
The doctrine of adverse possession has been criticised as being at odds with the constitutional right to property under Article 300A. By insisting on strict compliance with pleading requirements, the Court indirectly strengthens property rights.
II) Certainty in Litigation
The judgment provides certainty by clarifying that adverse possession cannot casually be introduced at appellate stages. Litigants must prepare their case fully at the trial stage.
III) Curbing Judicial Overreach
The decision also curtails the tendency of appellate courts to step into the role of trial courts by framing new issues without pleadings or evidence.
Conclusion
The Supreme Court in Kishundeo Rout v. Govind Rao has firmly held that a plea of adverse possession cannot be raised for the first time in appeal unless exceptional circumstances exist where facts are admitted and no prejudice is caused.
The judgment reinforces three core principles:
- Pleadings are the foundation of litigation.
- Adverse possession is a fact-intensive claim requiring strict proof.
- Appellate courts must exercise restraint when dealing with new issues.
Thus, while adverse possession remains a valid doctrine under Indian law, its invocation must strictly comply with procedural requirements. Any attempt to introduce it belatedly in an appeal will be struck down, as seen in this case.