Case Note & Summary
The present appeal arises from a decree for possession passed by the trial court in O.S.No.77/1999. The respondents (plaintiffs) claimed that the suit properties belonged to one Bopaiah, who died three years before the suit, and that the appellant (defendant No.1) and his brother (defendant No.2) were in permissive possession. The appellant contended that he had acquired title by adverse possession. The trial court decreed the suit, holding that the appellant failed to prove adverse possession. On appeal, the High Court examined the evidence and found that the appellant's possession was not hostile to the true owner. The appellant did not pay court fee on his counterclaim for adverse possession. The court held that the appellant failed to establish the essential elements of adverse possession, namely, hostile possession and animus possidendi. The appeal was allowed, the trial court's judgment and decree were set aside, and the suit was dismissed.
Headnote
A) Civil Procedure - Appeal under Section 96 CPC - Regular First Appeal against decree for possession - Appellant was defendant No.1 in suit for possession filed by respondents/plaintiffs - Trial court decreed suit - Appellant challenged decree - Held that appellant failed to prove adverse possession as possession was not hostile to true owner and no court fee paid on counterclaim (Paras 1-3). B) Property Law - Adverse Possession - Burden of proof - Appellant claimed adverse possession for over 12 years - Court found that appellant's possession was permissive and not hostile - No evidence of ouster of true owner - Held that mere long possession does not constitute adverse possession without animus possidendi (Paras 4-6). C) Civil Procedure - Court fee - Counterclaim for adverse possession - Appellant did not pay court fee on counterclaim - Held that claim of adverse possession must be specifically pleaded and court fee paid, otherwise cannot be considered (Para 7).
Issue of Consideration
Whether the appellant/defendant established adverse possession over the suit properties and whether the trial court erred in decreeing the suit for possession.
Final Decision
Appeal allowed. The judgment and decree dated 30.09.2005 in O.S.No.77/1999 passed by the learned Civil Judge (Sr.Dn.) at Virajpet are set aside. The suit is dismissed.
Law Points
- Adverse possession
- Burden of proof
- Hostile possession
- Court fee on counterclaim
- Section 96 CPC
