1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL REVISION APPLICATION NO.135 of 2008 REVISION APPLICATION NO.135 of 2008 REVISION APPLICATION NO.135 of 2008 Mrs.Nirmala Mrs.Nirmala Mrs.Nirmala Preetam Chhugani .. Applicant Preetam Chhugani .. Applicant Preetam Chhugani .. Applicants & ors ors ors (Orig.Defendants) (Orig.Defendants) (Orig.Defendants) versus versus versus Mrs Mrs Mrs Rekha Khushjal Jethwani Rekha Khushjal Jethwani Rekha Khushjal Jethwani ..Respondent ..Respondent ..Respondent (Orig.Plaintiff) (Orig.Plaintiff) (Orig.Plaintiff) Mr.Zubin Mr.Zubin Mr.Zubin Kamdin a/w Ms Ferzana Behram Kamdin and Kamdin a/w Ms Ferzana Behram Kamdin and Kamdin a/w Ms Ferzana Behram Kamdin and Ms.Swati Ms.Swati Ms.Swati Deshpande i.b F&B Associates for Applicant Deshpande i.b F&B Associates for Applicant Deshpande i.b F&B Associates for Applicant Mr.A.A.Kumbhakoni Mr.A.A.Kumbhakoni Mr.A.A.Kumbhakoni Sr.Advocate with Mr.Ranjeet Sr.Advocate with Mr.Ranjeet Sr.Advocate with Mr.Ranjeet Thorat Thorat Thorat i.b Devendra Udani and Pramesh Vakil i.b Devendra Udani and Pramesh Vakil i.b Devendra Udani and Pramesh Vakil for for for Respondent Respondent Respondent CORAM CORAM CORAM : J.H.Bhatia, J : J.H.Bhatia, J : J.H.Bhatia, J DATED DATED DATED : : : 20th February, 2008 20th February, 2008 20th February, 2008 P.C. P.C. P.C. 1. 1. 1. Heard learned counsel for the parties. Heard learned counsel for the parties. Heard learned counsel for the parties. 2. 2. 2. The defendants who are the revision applicants The defendants who are the revision applicants The defendants who are the revision applicants before before before this Court were inducted in the suit this Court were inducted in the suit this Court were inducted in the suit premises premises premises by the plaintiff/respondent in 1976 as by the plaintiff/respondent in 1976 as by the plaintiff/respondent in 1976 as licencee. licencee. licencee. In 1978, the licence was terminated due In 1978, the licence was terminated due In 1978, the licence was terminated due to to to efflux of time and notice was served by the efflux of time and notice was served by the efflux of time and notice was served by the landlady landlady landlady to the defendants. However, after to the defendants. However, after to the defendants. However, after getting getting getting that notice the defendants filed that notice the defendants filed that notice the defendants filed R.A.E.Suit R.A.E.Suit R.A.E.Suit No.499 of 1979 seeking a declaration No.499 of 1979 seeking a declaration No.499 of 1979 seeking a declaration that that that they were the tenants in the suit premises. they were the tenants in the suit premises. they were the tenants in the suit premises. That That That suit was dismissed. Thereafter, they suit was dismissed. Thereafter, they suit was dismissed. Thereafter, they preferred preferred preferred an appeal which was also dismissed. an appeal which was also dismissed. an appeal which was also dismissed. 2 Their Their Their Writ Petition before this Court was also Writ Petition before this Court was also Writ Petition before this Court was also dismissed dismissed dismissed and finally they had taken the matter to and finally they had taken the matter to and finally they had taken the matter to the the the Supreme Court by a Special Leave Petition. Supreme Court by a Special Leave Petition. Supreme Court by a Special Leave Petition. That That That Special Leave Petition was also dismissed by Special Leave Petition was also dismissed by Special Leave Petition was also dismissed by the the the Supreme Court on 10th September, 2001. The Supreme Court on 10th September, 2001. The Supreme Court on 10th September, 2001. The plaintiffs plaintiffs plaintiffs filed the suit against the defendants filed the suit against the defendants filed the suit against the defendants seeking seeking seeking possession on the ground that they were possession on the ground that they were possession on the ground that they were inducted inducted inducted as licencees and the licence was revoked. as licencees and the licence was revoked. as licencees and the licence was revoked. The The The defendants took two-fold pleas in the matter. defendants took two-fold pleas in the matter. defendants took two-fold pleas in the matter. According According According to them, they had perfected their title to them, they had perfected their title to them, they had perfected their title over over over the suit property by adverse possession and the suit property by adverse possession and the suit property by adverse possession and secondly secondly secondly the suit itself is barred by limitation. the suit itself is barred by limitation. the suit itself is barred by limitation. Both Both Both the contentions were rejected by the trial the contentions were rejected by the trial the contentions were rejected by the trial Court Court Court by judgment dated 20th January, 2007. by judgment dated 20th January, 2007. by judgment dated 20th January, 2007. Against Against Against the decree passed by the trial Court, the the decree passed by the trial Court, the the decree passed by the trial Court, the defendant defendant defendant preferred Appeal No.167 of 2007. It preferred Appeal No.167 of 2007. It preferred Appeal No.167 of 2007. It appears appears appears that at the time of hearing of that that at the time of hearing of that that at the time of hearing of that appeal, appeal, appeal, plea of adverse possession was not plea of adverse possession was not plea of adverse possession was not pressed. pressed. pressed. The appellate Court came to the opinion The appellate Court came to the opinion The appellate Court came to the opinion that that that the case is governed by Article 65 of the the case is governed by Article 65 of the the case is governed by Article 65 of the Limitation Limitation Limitation Act and it is within limitation. In Act and it is within limitation. In Act and it is within limitation. In the the the result, the appeal came to be dismissed. result, the appeal came to be dismissed. result, the appeal came to be dismissed. Thereafter, Thereafter, Thereafter, the defendants have preferred present the defendants have preferred present the defendants have preferred present Revision Revision Revision Application. Application. Application. 3. 3. 3. Learned counsel for the defendant-applicants Learned counsel for the defendant-applicants Learned counsel for the defendant-applicants raised raised raised only the question of limitation in the only the question of limitation in the only the question of limitation in the present present present Revision Application. According to the Revision Application. According to the Revision Application. According to the 3 learned learned learned counsel, the licence was terminated by counsel, the licence was terminated by counsel, the licence was terminated by notice notice notice issued in 1978 while the suit for issued in 1978 while the suit for issued in 1978 while the suit for possession possession possession is filed in 2001. According to him, is filed in 2001. According to him, is filed in 2001. According to him, there there there is no specific provision of limitation to is no specific provision of limitation to is no specific provision of limitation to meet meet meet such cases and therefore the suit shall be such cases and therefore the suit shall be such cases and therefore the suit shall be governed governed governed by Article 113 and the period of by Article 113 and the period of by Article 113 and the period of limitation limitation limitation is three years from the date when the is three years from the date when the is three years from the date when the right right right to sue accrues. According to him, the suit to sue accrues. According to him, the suit to sue accrues. According to him, the suit for for for possession should have been filed within three possession should have been filed within three possession should have been filed within three years years years from the date of termination of the licence from the date of termination of the licence from the date of termination of the licence by by by the notice issued in 1978 but it is filed in the notice issued in 1978 but it is filed in the notice issued in 1978 but it is filed in 2001 2001 2001 and therefore it is barred by limitation. and therefore it is barred by limitation. and therefore it is barred by limitation. Learned Learned Learned counsel for the plaintiff vehemently counsel for the plaintiff vehemently counsel for the plaintiff vehemently contended contended contended that Article 113 of the Limitation Act that Article 113 of the Limitation Act that Article 113 of the Limitation Act cannot cannot cannot be made applicable because, even though be made applicable because, even though be made applicable because, even though there there there was relationship of licensor and licencee, was relationship of licensor and licencee, was relationship of licensor and licencee, after after after termination of the licence the landlady termination of the licence the landlady termination of the licence the landlady filed filed filed the suit on the basis of title and therefore the suit on the basis of title and therefore the suit on the basis of title and therefore the the the suit will be governed by Article 65 of the suit will be governed by Article 65 of the suit will be governed by Article 65 of the Limitation Limitation Limitation Act and the period of limitation will Act and the period of limitation will Act and the period of limitation will be be be 12 years from the date when the title is 12 years from the date when the title is 12 years from the date when the title is disputed disputed disputed or when the possession of the defendant or when the possession of the defendant or when the possession of the defendant becomes becomes becomes adverse. adverse. adverse. 4. 4. 4. In the present case, even though the In the present case, even though the In the present case, even though the plaintiffs plaintiffs plaintiffs had issued a notice to terminate the had issued a notice to terminate the had issued a notice to terminate the licence licence licence in 1978, she had not filed any suit but, in 1978, she had not filed any suit but, in 1978, she had not filed any suit but, the the the defendant had filed a suit seeking a defendant had filed a suit seeking a defendant had filed a suit seeking a 4 declaration declaration declaration that they were the tenants. The Suit, that they were the tenants. The Suit, that they were the tenants. The Suit, the the the Appeal, Writ Petition and Special Leave Appeal, Writ Petition and Special Leave Appeal, Writ Petition and Special Leave Petition Petition Petition filed by them took about 22 years and filed by them took about 22 years and filed by them took about 22 years and admittedly, admittedly, admittedly, during all that period, stay was during all that period, stay was during all that period, stay was operating operating operating in favour of the defendant and therefore in favour of the defendant and therefore in favour of the defendant and therefore the the the plaintiffs were not in a position to get back plaintiffs were not in a position to get back plaintiffs were not in a position to get back the the the possession. The plaintiffs filed the suit in possession. The plaintiffs filed the suit in possession. The plaintiffs filed the suit in the the the year 2001 after dismissal of the Writ Petition year 2001 after dismissal of the Writ Petition year 2001 after dismissal of the Writ Petition filed filed filed by the defendants. For the first time, the by the defendants. For the first time, the by the defendants. For the first time, the defendants defendants defendants took the plea of adverse possession in took the plea of adverse possession in took the plea of adverse possession in their their their Written Statement in the suit and never Written Statement in the suit and never Written Statement in the suit and never before before before such a plea was taken. That plea was also such a plea was taken. That plea was also such a plea was taken. That plea was also not not not pressed during the arguments before the pressed during the arguments before the pressed during the arguments before the Appellate Appellate Appellate Court. In view of the fact that the Court. In view of the fact that the Court. In view of the fact that the suit suit suit was filed for possession on the basis of was filed for possession on the basis of was filed for possession on the basis of title, title, title, Article 113 of the Limitation Act cannot be Article 113 of the Limitation Act cannot be Article 113 of the Limitation Act cannot be applicable. applicable. applicable. After termination of the licence, the After termination of the licence, the After termination of the licence, the landlady landlady landlady could file the suit any time for could file the suit any time for could file the suit any time for possession possession possession and the period of limitation would and the period of limitation would and the period of limitation would begin begin begin to run only when the licencee by some overt to run only when the licencee by some overt to run only when the licencee by some overt act act act would dispute the title of the landlady or would dispute the title of the landlady or would dispute the title of the landlady or would would would claim adverse possession against her and not claim adverse possession against her and not claim adverse possession against her and not before. before. before. From the above facts, it becomes clear From the above facts, it becomes clear From the above facts, it becomes clear that that that the title of the licencee/landlady was never the title of the licencee/landlady was never the title of the licencee/landlady was never disputed disputed disputed till the date of filing of the suit and till the date of filing of the suit and till the date of filing of the suit and therefore therefore therefore question of limitation would not arise. question of limitation would not arise. question of limitation would not arise. 5. 5. 5. Counsel for the plaintiff rightly placed Counsel for the plaintiff rightly placed Counsel for the plaintiff rightly placed 5 reliance reliance reliance upon the judgment in Gaya Parshad Dikshit upon the judgment in Gaya Parshad Dikshit upon the judgment in Gaya Parshad Dikshit vs vs vs Dr.Nirmal Chander and another (1984) 2 Supreme Dr.Nirmal Chander and another (1984) 2 Supreme Dr.Nirmal Chander and another (1984) 2 Supreme Court Court Court Cases 286 wherein Their Lordships of the Cases 286 wherein Their Lordships of the Cases 286 wherein Their Lordships of the Supreme Supreme Supreme Court observed as follows. Court observed as follows. Court observed as follows. " We have heard the learned We have heard the learned We have heard the learned counsel counsel counsel on behalf of the appellant on behalf of the appellant on behalf of the appellant and and and after hearing him and perusing after hearing him and perusing after hearing him and perusing the the the judgment of the High Court, we judgment of the High Court, we judgment of the High Court, we find find find ourselves wholly in agreement ourselves wholly in agreement ourselves wholly in agreement with with with the view taken by the HIgh the view taken by the HIgh the view taken by the HIgh Court Court Court that mere termination of the that mere termination of the that mere termination of the licence licence licence of a licensee does not of a licensee does not of a licensee does not enable enable enable the licensee to claim the licensee to claim the licensee to claim adverse adverse adverse possession, unless and possession, unless and possession, unless and until until until he sets up a title hostile to he sets up a title hostile to he sets up a title hostile to that that that of the licensor after of the licensor after of the licensor after termination termination termination of his licence. It is of his licence. It is of his licence. It is not not not merely unauthorised possession merely unauthorised possession merely unauthorised possession on on on termination of his licence that termination of his licence that termination of his licence that enables enables enables the licensee to claim title the licensee to claim title the licensee to claim title by by by adverse possession but there adverse possession but there adverse possession but there must must must be some overt act on the part be some overt act on the part be some overt act on the part of of of the licensee to show that he is the licensee to show that he is the licensee to show that he is claiming claiming claiming adverse title. It is adverse title. It is adverse title. It is possible possible possible that the licensor may not that the licensor may not that the licensor may not file file file an action for the purpose of an action for the purpose of an action for the purpose of recovering recovering recovering possession of the possession of the possession of the premises premises premises from the licensee after from the licensee after from the licensee after terminating terminating terminating his licence but that by his licence but that by his licence but that by itself itself itself cannot enable the licensee cannot enable the licensee cannot enable the licensee to to to claim title by adverse claim title by adverse claim title by adverse possession. possession. possession. There must be some There must be some There must be some overt overt overt act on the part of the act on the part of the act on the part of the licensee licensee licensee indicating assertion of indicating assertion of indicating assertion of hostile hostile hostile title. Mere continuance of title. Mere continuance of title. Mere continuance of unauthorised unauthorised unauthorised possession even for a possession even for a possession even for a period period period of more than 12 years is not of more than 12 years is not of more than 12 years is not enough. enough. enough. Here in the present case Here in the present case Here in the present case there there there is nothing to show that at is nothing to show that at is nothing to show that at any any any time after termination of his time after termination of his time after termination of his licence licence licence by Dr.Rama Shanker or by by Dr.Rama Shanker or by by Dr.Rama Shanker or by the the the first respondent the appellant first respondent the appellant first respondent the appellant asserted asserted asserted hostile title in himself. hostile title in himself. hostile title in himself. The The The High Court was, therefore, High Court was, therefore, High Court was, therefore, right right right in taking the view that the in taking the view that the in taking the view that the appellant appellant appellant had not established any had not established any had not established any title title title by adverse possession and in by adverse possession and in by adverse possession and in that that that view of the matter, the suit view of the matter, the suit view of the matter, the suit of of of the first respondent for the first respondent for the first respondent for 6 recovery recovery recovery of possession of the of possession of the of possession of the premises premises premises from the appellant was not from the appellant was not from the appellant was not barred barred barred under Article 65 which is under Article 65 which is under Article 65 which is the the the only article of the Limitation only article of the Limitation only article of the Limitation Act, Act, Act, 1963 applicable in the present 1963 applicable in the present 1963 applicable in the present case. case. case. We accordingly, confirm the We accordingly, confirm the We accordingly, confirm the judgment judgment judgment of the High Court and of the High Court and of the High Court and dismiss dismiss dismiss the appeal. the appeal. the appeal. " 6. 6. 6. The present case is squarely covered by the The present case is squarely covered by the The present case is squarely covered by the above above above observations of the Supreme Court. Taking observations of the Supreme Court. Taking observations of the Supreme Court. Taking into into into consideration the facts and legal position consideration the facts and legal position consideration the facts and legal position noted noted noted above, I find no illegality or irregularity above, I find no illegality or irregularity above, I find no illegality or irregularity in in in the impugned judgment. Therefore, the Revision the impugned judgment. Therefore, the Revision the impugned judgment. Therefore, the Revision Application Application Application stands dismissed. stands dismissed. stands dismissed. 7. 7. 7. At this stage, learned counsel for the At this stage, learned counsel for the At this stage, learned counsel for the defendant/applicant defendant/applicant defendant/applicant makes a request to stay the makes a request to stay the makes a request to stay the execution execution execution of the decree for some more time. The of the decree for some more time. The of the decree for some more time. The decree decree decree for eviction and possession shall not be for eviction and possession shall not be for eviction and possession shall not be executed executed executed for a period of four weeks with condition for a period of four weeks with condition for a period of four weeks with condition that that that she shall not create any third party interest she shall not create any third party interest she shall not create any third party interest and and and shall not cause any damage to the property. shall not cause any damage to the property. shall not cause any damage to the property. As As As the Revision Application itself is disposed the Revision Application itself is disposed the Revision Application itself is disposed of, of, of, Civil Application does not survive and stands Civil Application does not survive and stands Civil Application does not survive and stands disposed disposed disposed of accordingly. of accordingly. of accordingly. (J.H.Bhatia, (J.H.Bhatia, (J.H.Bhatia, J) J) J)