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PETITIONER: GAYA PARSHAD DIKSHIT

       Vs.

RESPONDENT: DR. NIRMAL CHANDER & ANR.

DATE OF JUDGMENT03/01/1984

BENCH: BHAGWATI, P.N. (CJ) BENCH: 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]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1811 of 1978.

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    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

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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. 290