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Allahbad High Court
S.J.HYDER
Nirmal Chand - Appellant
Versus
Gaya Prasad Dikshit - Respondent
Decided On : 08/24/1978
LIMITATION ACT, 1963 - ARTICLE 65 - ADVERSE POSSESSION - INTENT TO PRESCRIBE - ACQUISITIVE PRESCRIPTION - TITLE BY ADVERSE POSSESSION - POSSESSION IN OWN RIGHT - ADVERSE POSSESSION WITHOUT ANIMUS TO PRESCRIBE - NO ACQUISITIVE PRESCRIPTION.
Fact of the Case:
Plaintiff-appellant filed a suit for possession of a portion of a house against defendant-respondent, who claimed adverse possession. The trial court decreed the suit, but the lower appellate court reversed the decision, holding that the suit was barred by limitation under Article 65 of the Limitation Act, 1963.
Finding of the Court:
The High Court held that the defendant-respondent's possession was not adverse to the plaintiff-appellant's title and that he did not have the intent to prescribe. Therefore, the defendant-respondent did not acquire title by adverse possession, and the suit was not barred by limitation.
Issues: Whether the defendant-respondent's possession was adverse to the plaintiff-appellant's title.
Ratio Decidendi: The court held that adverse possession requires the intent to possess in one's own right and that there can be no acquisitive prescription without the intent to acquire property of which another is the owner. The court found that the defendant-respondent never claimed to be in possession of the disputed portion of the house in his own right and that his possession was due to the generosity or bounty of the plaintiff-appellant. Therefore, the court held that the defendant-respondent did not have the intent to prescribe and did not acquire title by adverse possession.
Final Decision: The High Court allowed the appeal, set aside the decree of the lower appellate court, and restored the decree of the trial court.
2. Shortly stated the dispute between the parties relates to a small portion of a house. This house originally belonged to one Dr. Rama Shankar. Defendantrespondent No. 1 Gaya Prasad Dixit, hereinafter be referred to as Dixit, is the grandson of the real sister of Behari Lal, Dr. Rama Shanker is the son of Behari Lal. Dixit was living in the disputed portion of the house, which consists of a room, a kitchen, a verandah and a Kothari. Some dispute arose between Dr Rama Shanker on the one hand and Dixit on the other, whereupon Dr. Rama Shanker filed original suit 521 of 1957 for possession over the disputed portion of the house. This suit was compromised and in terms of the said compromise a decree was passed. It provided that Dixit shall remain in occupation of the disputed portion of the house as a licensee of Dr. Rama Shanker, Some time in 1959 Dixit gave a notice to Dr. Rama Shanker claiming that he was a licensee of the disputed portion for a period of 20 years. Thereupon Dr. Rama Shanker served a notice on Dixit revoking his licence. This notice was served through a counsel. Dr. Rama Shanker, who appeared as a witness in the case giving rise to this second appeal, denied having caused any such notice to be served on Dixit. His denial, however, has not been believed by the lower appellate court. The notice of revocation of licence is dated 26-12-1959. Nothing happened thereafter and Dixit continued to remain in possession of the disputed portion of the house. On May, 5, 1972 Dr. Rama Shanker transferred the property by means of a sale-deed to the plaintiff appellant, who obtained possession over the whole house except the portion, which is now in dispute between the parties. Plaintiff appellant served a notice dated July 10, 1972, on Dixit asking him to vacate the disputed portion, and on his failure to do so instituted the suit for possession. It is this suit, which has given rise to this second appeal.
3. All the pleas raised by Dixit in his defence need not be stated here as the controversy is now confined only to the question of adverse possession claimed by Dixit. On this question and other issues, the trial court found in favour of the plaintiff appellant and decreed the suit. On an appeal preferred by Dixit the lower court of appeal recorded findings which have been summarised above. On the question of limitation the first court of appeal reversed the finding of the trial court and dismissed the suit of the plaintiff appellant.
4. The appellate court below has taken the view that after the service of the notice by Dr. Rama Shanker in 1959 the licence granted to Dixit by means of the compromise decree in Original Suit No. 521 of 1957 stood revoked. His position thereafter was that of a trespasser and the suit for possession having been instituted on August, 9, 1972 was well beyond 12 years of the service of the notice dated 26-12-1959 and as such the relief of possession claimed by the plaintiff appellant was barred by limitation.
5. The plaintiff appellant has now preferred this second appeal and the counsel appearing on his behalf has contended that the finding recorded by the court below on the question of limitation is incorrect.
6. In arriving at the conclusion, that the suit of the plaintiff appellant was barred by Article 65 of the Limitation Act, 1963, the court below has relied on M.N. Clubwala v. Fida Hussain Saheb, AIR 1965 SC 610; Sukhbasi Lal v. Durjan Singh, AIR 1963 All 119 and Beant Singh v. Cantonment Executive Officer, AIR 1960 JandK 83. I would not have burdened this judgement by referring to these eases in some detail but for the fact that these are the only authorities which have been rel
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