Vs.
EmailAppeal:
Petitioner:
Respondent:
Apeal:
Judges: K. RAMASWAMY & G.T. NANAVATI, JJ.
Date of Judgment: Mar 03, 1997
Head Note:
Adverse Possession
Held where adverse possession has not pleaded as an issue in Courts below – High Court erred in holding that appellants had not proved the negative of respondents not being in adverse possession.
Held:
It is seen that the respondents have not pleaded adverse possession in the pleadings nor has an issue been raised in that behalf. When the appellants claimed their title to the property on the basis of the sale-deed, unless the respondents establish by evidence alluende by pleading adverse possession and proof of disclaimer of their right in their possession as licensees asserting their own right to remain in possession disclaiming the title of the respondent, the question of adverse possession would not arise. It is neither so pleaded an issue raised nor has any finding been recorded by the courts below. The High Court was clearly in error in recording the finding that the appellants had not proved that the respondents were not in possession of the property adverse to the appellants’ right. Therefore, the question of adverse possession of the respondents does not arise. (Para 6)
JUDGEMENT:
