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SUPREME COURT OF INDIA
J.B. PARDIWALA, R. MAHADEVAN, JJ.
Kishundeo Rout & Ors. – Petitioners
Versus
Govind Rao & Ors. – Respondents
Special Leave Petition (Civil) No. 22070 of 2025 (@ Diary No. 30361)
Decided On : 08-08-2025
(A) Limitation Act, 1963 – Article 65 of Schedule – Civil Procedure Code, 1908 – Section 96 – Adverse Possession – A plea not properly raised in pleadings or in issues at stage of trial would not be permitted to be raised for first time at stage of First Appeal under Section 96 of CPC – Plea of adverse possession is not always a legal plea – 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 nature of his possession, whether factum of his possession was known to 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, plea of adverse possession cannot be inferred from them – Foundation for plea of adverse possession must be laid in pleadings and then an issue must be framed and tried – In normal cases Appellate Court will not allow plea of adverse possession to be raised before it. (Paras 19 and 20)
(B) Adverse Possession – Ordinarily, question of adverse possession is one of fact, resting upon proof of numerous circumstances which go to establish several elements, indicating adverse character of possession – In certain cases, it may be a question of law, or, a mixed question of law and facts as, where decision rests upon inferences to be drawn from facts which are admitted or established – Determination of adverse possession depends upon sifting of facts and circumstances, indicative of adverse possession, and then, upon testing of evidence in light of law applicable – Unless plea of adverse possession has. been specifically raised in pleadings, put in issue, and then cogent and convincing evidence led on a multitude of points, and opportunity to refute case made out by plaintiff, availed of by defendant, plea of adverse possession cannot be allowed to be flung as a surprise, on an unsuspecting defendant, for first time in appeal – Petition dismissed. (Paras 27, 28, 30 and 31)
Facts of the case:
Instant petition arises from judgment and order passed by the High Court of Jharkhand dated 28.02.2025 in Second Appeal No. 151 of 2022 by which Second Appeal filed by respondents herein (original defendants) came to be allowed thereby setting aside judgment and order passed by the First Appellate Court, i.e., District Judge II, Deoghar in Civil Appeal No. 64 of 2018 preferred by petitioners herein (original plaintiffs)against the judgment and decree passed by Civil Judge (Sr Div) IV, Deoghar in Title Suit No. 35 of 1999 dated 18.08.2018.
Findings of Court:
If plea of adverse possession had been taken in plaint, and if that plea had been traversed by defendants and then proper issues framed, a heavy burden would have laid on plaintiffs to lead evidence in support of their hostile claim and a corresponding opportunity of rebuttal would have been given by law to defendants. In this case it is inconceivable that question of adverse possession can become subject matter of adjudication on this record in absence of proper plea, issue or proof.
Result : Petition dismissed.
| Table of Content |
|---|
| 1. pleading structure and claims (Para 2 , 3 , 4 , 5) |
| 2. issues framed by the high court (Para 10 , 11) |
| 3. nature of adverse possession claims (Para 19 , 20 , 24) |
| 4. adverse possession must be properly pleaded (Para 29 , 30) |
ORDER :
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:
“That under the above facts and circumstances the plaintiff prays for following relief for a decree 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.
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), (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 t
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