Adverse possession – Plea – Not raised in pleadings, cannot be raised for the first time in appeal – Suit filed by the plaintiffs for cancellation of sale deed, dismissed by trial court – Appeal filed by the plaintiffs – First Appellate Court accepting the plea of adverse possession raised by them for the first time, allowed the appeal and decreed the suit – Second appeal filed by the defendants, allowed by High Court – Challenge to: Held: 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 u/s.96, CPC – The plea of adverse possession 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 and 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 – 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 – In the present case, 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 – The question of adverse possession cannot become the subject matter of adjudication in the absence of proper plea, issue or proof – Petition fails, dismissed. [Paras 19, 29-31] Pleadings – Rule of – Principle of secundum allegata et probata – Effect:
Held: 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 – Pleadings and proof must correspond – No party should be prejudiced by being taken by surprise by varying the case as originally set up. [Paras 24, 25]
Adverse possession – Ordinarily, a question of fact however, in certain cases, it may be a question of law or a mixed question of law and facts – Determination of adverse possession – When can the plea of adverse possession be allowed by the Appellate Court to be taken up for the first time in appeal, stated. [Para 27, 28]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.