Unless Pleaded, Put in Issue, and Proved — No Court Can Spring It Upon the Defendant for the First Time:  Supreme Court

“Adverse Possession Cannot Be Flung as a Surprise in Appeal”, Supreme Court of India dismissed a special leave petition by plaintiffs who had sought to defend their possession of property on the ground of adverse possession, despite never having pleaded it in their original suit.

The Bench of Justice J.B. Pardiwala and Justice R. Mahadevan emphatically reaffirmed that adverse possession is a factual claim requiring a specific plea, proper issues, and proof — it cannot be introduced for the first time at the appellate stage, much less decided without evidence, as the First Appellate Court had done.

From Sale Deed Challenge to Surprise Claim of Adverse Possession

The plaintiffs had filed a suit in 1999 seeking a declaration that a 3 February 1997 sale deed was “bogus” and for an injunction restraining the defendant from claiming ownership. The trial court dismissed the suit, finding the plaintiffs failed to prove fraud or lack of possession transfer.

On appeal, the District Judge did something extraordinary: without any such plea in the plaint, and without calling further evidence, the appellate court framed an additional issue of adverse possession, held that the plaintiffs’ possession had “ripened” in 2012 during the pendency of the suit, and decreed the suit for part of the property.

The High Court, in second appeal, struck this down, holding that there was “no foundational pleading” for adverse possession and that such a finding was “ex facie perverse” and beyond the scope of the suit.

Supreme Court: Plead, Prove, and Confront — Or Not at All

The Supreme Court delved into classic precedents — Ganda Singh, Municipal Board Etawah, Krishna Churn Baisack, Ram Singh, Lachhmi Sewak Sahu, Trojan & Co. Ltd., and others — to reaffirm that adverse possession cannot be presumed, nor smuggled in through inference:

“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… unless they are asserted and proved, a plea of adverse possession cannot be inferred.”

The Court stressed the basic rule of pleadings — secundum allegata et probata — that a party can only succeed on what is alleged and proved. In the words of Mahajan, J. in Trojan:

“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.”

No “Sword” or “Shield” Without a Foundation

The Bench underscored that while adverse possession can now be used both as a defence and as a cause of action, it still demands that the claimant set it out distinctly in the pleadings, allowing the opponent to meet the case:

“Unless the plea… has been specifically raised in the pleadings, put in issue, and then cogent and convincing evidence led… the plea of adverse possession cannot be allowed to be flung as a surprise, on an unsuspecting defendant, for the first time in appeal.”

Here, the plaintiffs never pleaded adverse possession, no issue was framed at trial, and the defendants never had an opportunity to rebut it — making the appellate court’s approach legally unsustainable.

Conclusion: Petition Dismissed, Trial Court’s Dismissal Restored

Finding the appellate court’s decree to be contrary to fundamental pleading principles and procedural fairness, the Supreme Court dismissed the petition, restored the trial court’s dismissal of the suit, and reiterated that adverse possession is not a doctrine to be sprung without notice.

Date of Decision: 8 August 2025