287 A

GAYA PARSHAD OIKSHIT

' v.

DR. NIRMAL CHANDER & ANR.

January:;,, 1984 ·

[P.N: BHAGWATl, ACTING CHIEF JUSTICE AND D. P. MADON, JJ.]

Litnitatio11 A.ct 1963, Article 65, 'title by adverse possession':Clabn of- Licence tenninated by itotice-Suit for possdssion-Licence to show by overt act that he is cla1ning adverse title . .

The respondents filed a suit for r.ecovery .of possession of the preniises (rorn the appellant after terfuination of his licence. The appellant cf aimed title _b.Y adverse possession.

. The High Court held' that mere termination of the licence of a liccncee does not enable th, e .licence to clalin adverse JJOSsession, unless and uritil he -sets up a title hostile to that of the liccncer after tennination of hisMicencc, and decreed the suit for possession.

Dismissing the appeal,

HELD : I. There nust be so1ne overt act on the pa-~1 of th~ licencee indiating assertion bf hostile title. Mere continuance o( unauthorised possession even for . a period of1nore tha'n 12.years is not enouh. [288 bJ

2. It is -not n1erely unauthorised possession on -tenni11atio11 of his licence t_hat enables the licencee toclaim title by adverse possession but there must be some overt act on the part of the licencee to show that he is clain1ing adYerse title.

It is pos.sible that the licencor n1ay not file an action fur the purpose of recovering

possessic:>n of the prcimises from the licencee after Jern1inatlng his licence but that by itself canot enable the licencee to claim thk:_ by adverse possession. (288 Cf

. In th. instant case, the High Cout was riht •ill takingthe view that the appellant had not establisPed any title by adverse possession, and that the suit of

the first respondent for recovery of possession of the premises from the appellant G. was not barrd under Article 65 of the Lin1itatioil At, 1963. (288 E-FJ

CIVIL APPELLATE J.URISDJCTION: Civil Appeal 'No ... J8)] of 1978.

From the judgment and ordel' dated 24th August; fl78 of the H Allahabad High Court in sec?nd Appeal No, 1287 of _1974.) ·

SUPREME COURT REPORTS [1984] 2 s.c; R.

A S, . Markendeya for the Appellant,

BC Afarwala .for the Respondents .

. The Judgment of the court was delivered bv

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B. .

BHAGWATl: ACTING CJ. We. Jiave'hard the learned counsel on behalf of the appellant and after hearing hi~ and persuing the judgment of the .High Court, we find ourselves wholly in agreement

with the' view t.aken by the. High Court that mere termintion of the licence' of a licencce does not enable the licencee to claim aderse . possession, .unless and until he sets up a title hostile io that of the

 C · licencor after termination of his licence,' It is not. merely unauthorised .

~ possession 011 termination of his licence that enables ihe licencee to claitn title ):iy adver; e 'possession but there musi be some overt at ori the pat't of ihc licencee to sho~ that he is claiming adverse title: Jt is possible that the licencor may not file an action for the purpose of . recovering possession of the premises from the licencee after terminan ting his licence but that by itself cannot enable the licencee to claim title by dverse jlossession. °There must be some overt act on the part of the licence<1; indicating assertion of.hostiie title. Mere con- . tin1iance. of uriauthorised possession even for a period of more than . .12 years is n.ot enough: .Here in the present case there is nothing to

show that at any time after termination of his licence by Dr: Rama E Shanker or by tl; e first repodent' the appellant asserted hostile title in himslf. The High \ourt was, therefore, rigl1t in t, aking.the view that t!J..e ·., ppellanf had not established any title by adverse. possession and iii that view of the matter," the suit of the first respondent for recovery of possession of the premises ffom the appellant was not barred under article 65 which is the only article of the LimitationAet, f 1963 applicable in the present .case. We accordingly confirm the

judg111ent ofthe ]i:igh Co!Jrl and dismiss !lie appeal. ·

Mr. Markandeya,. learned. counsel appearing on behalf 6f the . appellant, has urged that the appellant has ben in possession of the premises which consist ofr9oms Nos. I, 4 and 5 shown in fhe Amin's map marked l6/5C since his birth and it would cause considerable hardship 10 him if he wereto be ev.icted from these room.s immediately and he.has, therefore; requested'that sufficient time may be granted fo 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. i but he may .be allowed to continue in possession of room Nos. 4. & 5 for some reasonable period. This is a reasonable request on

I. j.

G.P .. DIKSHIT v. N!RMA~ CHANDER (Bhagwati, A cling, CJ.) 289 . . behalf of the appella1it. Jn view of the fact that the appellant ha& A been in possession of rooms Nos. I, 4 ad. 5 for a very loi1g perird and he has:, .son who is studying in school, we a.re' incilned fo 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 appellaiif hands over vacant and peacefu)

possession of room No.· f and any other portio!ii of the house which B may be it1 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 t.hesame datestating-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 cccupatio'n of these two rooms and will hand over vac.ant and peqaceful possession of these

C ' two rooms to the !st respondent on or before 30th June, 1987, 'the decree for possession against the appellant in respect of rooms Nos.A '"and 5 will not be executed untii 30th 5-une,. 1987.· If vacant and

. peacefu(possession of room No, i is not handed over by the appellant to the 1st respondent on or before 28th February, 19 84 or if the appellant and his son fail to file an affidavit in the aforeswd terms on or D before that date, the .qecree for possessi.on will beome executable forthwith. . • •

 . There will be no order as to costs throughout. ' . ' . '

N.V.K.

Appeal <lismissed .

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