Case Note & Summary
The petitioners, who are plaintiffs in Regular Civil Suit No.134/02/D before the Civil Judge, Junior Division, Margao, challenged the order dated 21st February 2004 dismissing their application for deletion of issue no.4. The plaintiffs claimed to be owners in possession of property 'FONDUBATA' or 'PANDURANGACHE MADDA' at Cuncolim, Goa, which includes a structure bearing house no.197 (the suit house). They alleged that the defendants trespassed into the suit house, compelling them to file the suit. The defendants filed their written statement but did not specifically plead ouster or adverse possession. However, the trial court framed issue no.4: 'Whether the suit is barred by limitation and whether the defendants have acquired title by adverse possession?' The plaintiffs applied for deletion of this issue on the ground that it did not arise from the pleadings. The trial court dismissed the application. The High Court allowed the petition, holding that issue no.4 did not arise from the pleadings as the defendants had not pleaded ouster, which is essential for a plea of adverse possession. The court relied on the principle that an issue which does not arise from the pleadings or is unnecessary can be deleted under Order XIV Rule 5 of the Code of Civil Procedure, 1908. The court set aside the impugned order and directed deletion of issue no.4.
Headnote
A) Civil Procedure Code - Order XIV Rule 5 - Deletion of Issue - Issue framed without pleadings can be deleted - The court held that an issue which does not arise from the pleadings or is unnecessary can be deleted at any stage before trial. (Paras 2-5) B) Limitation Act - Adverse Possession - Plea of Ouster - Adverse possession cannot be claimed without pleading ouster - The court held that for a plea of adverse possession, the defendant must plead ouster of the true owner; mere possession for a certain period is insufficient. (Paras 3-5) C) Property Law - Trespass - Ownership and Possession - Plaintiffs claimed ownership and possession; defendants alleged trespass but did not plead ouster - The court held that issue no.4 regarding limitation and adverse possession was not warranted as it did not arise from the pleadings. (Paras 2-5)
Issue of Consideration
Whether an issue regarding limitation and adverse possession can be framed and retained when there is no pleading or evidence of ouster by the defendants.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 21st February 2004, and directed the trial court to delete issue no.4 from the suit.
Law Points
- Order XIV Rule 5 CPC
- Limitation Act 1963
- adverse possession
- ouster
- pleadings
- issue framing
