Supreme Court of India
Kishundeo Rout vs Govind Rao on 8 August, 2025
1
REPORTABLE
2025 INSC 956
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.22070/2025 (@DIARY NO.30361)
KISHUNDEO ROUT & ORS. Petitioner(s)
VERSUS
GOVIND RAO & ORS. Respondent(s)
O R D E R
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.
4. The plaintiffs instituted Title Suit No. 35 of 1999 in the
Court of the Civil Judge, Deoghar and prayed for the following
reliefs:
Signature Not Verified
Digitally signed by
VISHAL ANAND
“That under the above facts and circumstances the
Date: 2025.08.11
18:07:33 IST plaintiff prays for following relief for a decree
Reason:
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.
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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 ?
6. The suit ultimately came to be dismissed vide the judgment and
decree dated 18.08.2018 while answering the issue nos. (i), (ii),
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(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 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
4averred 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 ?”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
5reentry 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 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.
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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 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.
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11. The High Court formulated two substantial questions of law for
its consideration:
“(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 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
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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.
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
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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 case of Ganda Singh and Ors. v. Ram Narain Singh
reported in ILR (1959) 1 P&H 385.
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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 some
cases in which the plea will be allowed because in some form the
allegation upon which it can be raised was 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
11
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 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.
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 ad-verse 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
12
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 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
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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 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)
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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
15
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 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.
31. In the result, this petition fails and is hereby dismissed.
32. Pending applications, if any, also stand disposed of.
…………………………………………J
(J.B. PARDIWALA)
…………………………………………J
(R. MAHADEVAN)
NEW DELHI
8TH AUGUST, 2025.
va