Gaya Parshad Dikshit Vs. Dr. Nirmal
Chander & ANR [1984] INSC 4 (3 January 1984)
BHAGWATI, P.N. (CJ) BHAGWATI, P.N. (CJ)
MADON, D.P.
CITATION: 1984 AIR 930 1984 SCR (2) 287 1984
SCC (2) 286 1984 SCALE (1)489
ACT:
Limitation Act 1963, Article 65, `title by
adverse possession'-Claim of-Licence terminated by notice-Suit for
possession-Licence to show by overt act that he is clamming adverse title.
HEADNOTE:
The respondents filed a suit for recovery of
possession of the premises from the appellant after termination of his licence.
The appellant claimed title by adverse possession.
The High Court held that mere termination of
the licence of a licencee does not enable the licence to claim adverse
possession, unless and until he sets up a title hostile to that of the licencer
after termination of his licence, and decreed the suit for possession.
Dismissing the appeal, ^
HELD : 1. There must be some overt act on the
part of the licencee indicating assertion of hostile title. Mere continuance of
unauthorised possession even for a period of more than 12 years is not enough.
[288 D]
2. It is not merely unauthorised possession
on termination of his licence that enables the licencee to claim title by
adverse possession but there must be some overt act on the part of the licencee
to show that he is claiming adverse title. It is possible that the licencor may
not file an action for the purpose of recovering possession of the premises
from the licencee after terminating his licence but that by itself cannot
enable the licencee to claim title by adverse possession. [288 C] In the
instant case, the High Court was right in taking the view that the appellant
had not established any title by adverse possession, and that the suit of the
first respondent for recovery of possession of the premises from the appellant
was not barred under Article 65 of the Limitation Act, 1963. [288 E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1811 of 1978.
From the judgment and order dated 24th
August, 1978 of the Allahabad High Court in second Appeal No. 1287 of 1974.)
288
S. Markendeya for the Appellant.
EC Agarwala for the Respondents.
The Judgment of the court was delivered by
BHAGWATI, ACTING C.J. We have heard the
learned counsel
of behalf of the appellant and after hearing
him and perusing the judgment of the High Court, we find ourselves wholly in
agreement with the view taken by the High Court that mere termination of the
licence of a licencee does not enable the licencee to claim adverse possession,
unless and until he sets up a title hostile to that of the licencor after
termination of his licence. It is not merely unauthorised possession on
termination of his licence that enables the licencee to claim title by adverse
possession but there must be some overt act on the part of the licencee to show
that he is claiming adverse title. It is possible that the licencor may not
file an action for the purpose of recovering possession of the premises from
the licencee after terminating his licence but that by itself cannot enable the
licencee to claim title by adverse possession.
There must be some overt act on the part of
the licencee indicating assertion of hostile title. Mere continuance of
unauthorised possession even for a period of more than 12 years is not enough.
Here in the present case there is nothing to show that at any time after
termination of his licence by Dr. Rama Shanker or by the first respondent the
appellant asserted hostile title in himself. The High Court was, therefore,
right in taking the view that the appellant had not established any title by
adverse possession and in that view of the matter, the suit of the first respondent
for recovery of possession of the premises from the appellant was not barred
under article 65 which is the only article of the Limitation Act, 1963
applicable in the present case. We accordingly confirm the judgment of the High
Court and dismiss the appeal.
Mr. Markandeya, learned counsel appearing on
behalf of the appellant, has urged that the appellant has been in possession of
the premises which consist of rooms Nos. 1, 4 and 5 shown in the Amin's map
marked 16/5C since his birth and it would cause considerable hardship to him if
he were to be evicted from these rooms immediately and he has, therefore,
requested that sufficient time may be granted to the appellant to vacate these
rooms. He has also stated that in the meanwhile the appellant is prepared to
give up possession of room No.1 but he may be allowed to continue in possession
of room Nos. 4 & 5 for some reasonable period.
This is a reasonable request on 289 behalf of
the appellant. In view of the fact that the appellant has been in possession of
rooms Nos. 1, 4 and 5 for a very long period and he has a son who is studying
in school, we are inclined to grant time to the appellant to hand over
possession of room Nos. 4 and 5, provided he gives up possession of room No. 1
on or before 28th February, 1984. If the appellant hands over vacant and
peaceful possession of room No. 1 and any other portion of the house which may
be in his own occupation apart from room Nos. 4 and 5 on or before 28th
February, 1984 and he and his son file an affidavit in this Court on or before
the same date stating that they are in possession and occupation of rooms Nos.
4 and 5 and undertaking that they will not induct anyone else in possession or
occupation of these two rooms and will hand over vacant and peaceful possession
of these two rooms to the 1st respondent on or before 30th June, 1987, the
decree for possession against the appellant in respect of rooms Nos. 4 and 5
will not be executed until 30th June, 1987. If vacant and peaceful possession
of room No. 1 is not handed over by the appellant to the 1st respondent on or
before 28th February, 1984 or if the appellant and his son fail to file an
affidavit in the aforesaid terms on or before that date, the decree for
possession will become executable forthwith.
There will be no order as to costs
throughout.
N.V.K. Appeal dismissed.
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