Kishundeo Rout vs Govind Rao & 2025 INSC 956 - Adverse Possession Plea At Appellate Stage

Adverse Possession - The foundation for the plea of adverse possession must be laid in the pleadings and then an issue must be framed and tried. (Para 19) 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. (Para 20)

Code of Civil Procedure 1908 - Section 96 - Plea of adverse possession - 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). (Para 19) 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.  (Para 20) 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. (Para 30)

Pleadings - principle of secundum allegata et probata - 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. (Para 24)