Adverse possession must be specifically pleaded; appellate court cannot frame and decide it first time, Supreme Court holds

A bench of Justice J.B. Pardiwala and Justice R. Mahadevan heard a special leave petition by plaintiffs challenging a Jharkhand High Court judgment that allowed a second appeal and set aside a first appellate court decree which had granted relief on the basis of adverse possession. The petition arose from Title Suit No. 35 of 1999 and successive appellate proceedings in Deoghar, where the central question was whether an appellate court could frame and decide an issue of adverse possession not pleaded in the plaint or issues and without further evidence.

The Supreme Court dismissed the petition and endorsed the High Court’s conclusion that adverse possession must be foundationally pleaded and proved before it could be used as a basis for a decree. The Court reiterated that “the foundation for the plea of adverse possession must be laid in the pleadings and then an issue must be framed and tried,” and that adverse possession was “always based on facts which must be asserted and proved.” The Court, in its reasoning, observed: "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 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." The Court further noted that framing of such an issue at the appellate stage was “absolutely beyond the pleadings” and therefore impermissible.

Background The dispute originated with plaintiffs who, in 1999, sought a decree declaring Sale Deed No. 256 dated 03.02.1997 to be bogus and inoperative, confirmation or recovery of possession and a permanent injunction against the defendants. The trial court framed issues including whether the sale deed was illegal and whether possession had been given to the defendant, and ultimately dismissed the suit on 18.08.2018, finding that plaintiffs had not proved fraud, misrepresentation or lack of possession after the alleged sale.

The plaintiffs succeeded in the First Appeal before the District Judge, Deoghar, which set aside the trial court’s decree and decreed the suit in respect of Schedule B property. The appellate court relied on evidence suggesting the defendants were dispossessed in July 2000 and concluded that, by 2012, the plaintiffs’ adverse possession had ripened; it invoked RAVINDER KAUR GREWAL v. MANJIT KAUR (2019) on the law of adverse possession and held that perfection of title by adverse possession could be acted upon by a plaintiff as well as a defendant.

The defendants challenged this decision in the High Court by way of a second appeal. The High Court formulated two substantial questions of law: whether the lower appellate court was justified in framing an additional issue of adverse possession when plaintiffs had not pleaded it, and whether the appellate court could decide that issue without taking further evidence. The High Court allowed the second appeal, holding that there was “no foundational pleading with regard to claim of title by adverse possession in the plaint” and that the appellate court erred in framing and deciding the issue during appeal. The High Court set aside the first appellate court’s decree and affirmed the trial court judgment.

On appeal to the Supreme Court, the bench reviewed longstanding precedents (including Ganda Singh v. Ram Narain Singh and other authorities) establishing that pleadings must correspond to proof and that adverse possession was a factual plea requiring specific averments as to when possession began, its nature, publicity and continuity. The Court emphasized that exceptions existed only where the facts on record plainly raised the issue without taking the opposite party by surprise. Applying that principle, the Court found no merit in permitting adverse possession to be raised for the first time at the appellate stage in this record and dismissed the petition. No interim directions were issued and no liberty beyond the ordinary procedural rights was granted.

Case Details: Case No.: SPECIAL LEAVE PETITION (CIVIL) NO.22070/2025 (@DIARY NO.30361) | 2025 INSC 956 Case Title: Kishundeo Rout & Ors. v. Govind Rao & Ors. Appearances: For the Petitioner(s): Learned counsel for the petitioners (name not indicated) For the Respondent(s): Learned counsel for the respondents (name not indicated)