Summary
The Court dismissed the plaintiffs' petition against a High Court judgment that had reversed a first appellate decree founded on adverse possession, holding that a plea of adverse possession must be specifically pleaded, put in issue and proved, and cannot be framed and decided for the first time by the first appellate court, still less on the footing that the plaintiffs' possession ripened into title during the pendency of the suit.
Issues
- Whether the first appellate court could frame an additional issue of adverse possession and decree the suit on that basis when adverse possession had not been pleaded in the plaint or put in issue at trial.
- When, if at all, a plea of adverse possession not taken in the plaint may be allowed to be raised in appeal.
Provisions considered
- Section 96, Code of Civil Procedure, 1908The Court held that a plea not properly raised in the pleadings or in the issues at trial cannot be raised for the first time in a first appeal under Section 96. (¶ 19)
- Article 65; Sections 3 and 27, Limitation Act, 1963The first appellate court had applied the twelve-year period under Article 65 and the extinguishment of right under Section 27 to hold that the plaintiffs' possession from July 2000 ripened into title in 2012 during the pendency of the suit; the High Court rejected this as beyond the pleadings and perverse, and the Supreme Court upheld that view. (¶¶ 8, 12, 13, 29, 30)
Held
- The foundation for a plea of adverse possession must be laid in the pleadings, an issue framed and the plea tried; a plea not properly raised in the pleadings or issues at trial will not be permitted to be raised for the first time at the stage of first appeal. (¶ 19)
- Adverse possession is essentially a plea of fact: the claimant must assert and prove when he came into possession, its nature, whether the true owner knew of it, how long it continued and whether it was open and undisturbed. Unless these facts are asserted and proved, adverse possession cannot be inferred, and ordinarily an appellate court will not allow the plea to be raised before it. (¶¶ 20, 27)
- A party can succeed only on what he has alleged and proved (secundum allegata et probata); a decision cannot rest on grounds outside the pleadings, since the rule that pleadings and proof must correspond protects the opposite party from being taken by surprise. (¶¶ 24, 25)
- The test for allowing a plea of adverse possession not taken in the plaint to be urged in appeal is how far the defendant is likely to be prejudiced: the plea may be entertained where the question reduces itself to one of law on facts admitted or proved beyond controversy, arises on the facts stated in the plaint, and the defendant is not taken by surprise; otherwise no declaration of title by adverse possession will be given where the claim is not distinctly set out in the pleadings or issues. (¶¶ 26, 28)
- In this case, had adverse possession been pleaded and traversed, a heavy burden would have lain on the plaintiffs and the defendants would have had an opportunity of rebuttal; absent a proper plea, issue or proof, adverse possession could not be adjudicated on the record. Unless the plea is specifically raised, put in issue, supported by cogent evidence and the opposite side given an opportunity to refute it, it cannot be flung as a surprise on the defendant for the first time in appeal. (¶¶ 29, 30)
Result
Special leave petition dismissed; High Court judgment allowing the second appeal and restoring the trial court's dismissal of the suit left undisturbed.