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Milap Chand Vs. Badri Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 212 of 1972
Judge
Reported inAIR1979All162
ActsLimitation Act, 1963 - Schedule - Articles 64 and 65
AppellantMilap Chand
RespondentBadri Prasad
Appellant AdvocateT.P. Asthana, Adv.
Respondent AdvocateG.C. Dwivedi, Adv.
DispositionAppeal dismissed
Excerpt:
.....- adverse possession - articles 64 and 65 of limitation act, 1963 - suit barred by limitation as adverse possession has continued for more than twelve years - no express revocation of license - licensee had implied permission to remain in possession - act of asserting adverse possession were executed much later - before that no adverse possession - suit not barred as adverse possession has not exceeded twelve years. - - he used to carry on some business in which he occasionally incurred debts and, therefore, he executed a sale deed dated 8th april, 1925 of the house in favour of his wife and got it registered in order to keep the house safe although the said sale-deed was not intended to be acted upon. the fifth issue related to the valuation of the suit and the court fees payable..........at mirzapur.2. one lokai had a son baldeo and two daughters, smt. bhagwati devi and smt. satti devi. baldeo was married to smt. basnati devi and had a son badri prasad and a daughter smt. lalmaai. badri prasad is the plaintiff-respondent. smt. bhagwati devi was married to mahadeo. they had a son manni lal who was married to another lady also named smt. satti. loakai's second daughter smt, satfi devi was married to beni pd. he had two sons munni lal and punni lal. punni lal's son milap chand is the defendant appellant.3. the plaintiff came to court with the allegations that baldeo was the owner of the house of which the property in suit formed part. he used to carry on some business in which he occasionally incurred debts and, therefore, he executed a sale deed dated 8th april, 1925.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's second appeal in a suit for possession over a portion of a house at Mirzapur.

2. One Lokai had a son Baldeo and two daughters, Smt. Bhagwati Devi and Smt. Satti Devi. Baldeo was married to Smt. Basnati Devi and had a son Badri Prasad and a daughter Smt. Lalmaai. Badri Prasad is the plaintiff-respondent. Smt. Bhagwati Devi was married to Mahadeo. They had a son Manni Lal who was married to another lady also named Smt. Satti. Loakai's second daughter Smt, Satfi devi was married to Beni Pd. He had two sons Munni Lal and Punni Lal. punni Lal's son Milap Chand is the defendant appellant.

3. The plaintiff came to court with the allegations that Baldeo was the owner of the house of which the property in suit formed part. He used to carry on some business in which he occasionally incurred debts and, therefore, he executed a sale deed dated 8th April, 1925 of the house in favour of his wife and got it registered in order to keep the house safe although the said sale-deed was not intended to be acted upon. Baldeo remained in possession of the house as owner as long as he lived. He having died in the year 1927 leaving the plaintiff as his sole heir and that since Baldeo's death, the plaintiff entered into possession as owner and has continued to remain so. It was then urged that the plaintiff's mother Smt. Basanti Devi died in the year 1936 and in spite of the sale deed in her favour she had no proprietary interest in the house and that the plaintiff alone had been in exclusive proprietary possession thereof since the death of Baldeo and even during her lifetime, and that in order to leave no doubts about the correct position the plaintiff's sister Smt. Lalmani executed a deed of relinquish-ment in respect of the house in favour of the plaintiff on 10th August, 1964.

The plaintiff then proceeded on to allege that Sint. Bhagwati Devi and Smt. Satti Devi, sisters of the plaintiff's father Baldeo had no residential house in the town of Mirzapur and their family members wanted to live at Mirzapur in connection with their business whereupon the plaintiff's father allowed them and their husbands and their children to live in a portion of the house as a licensee without payment of any rent and that no one of the family of Smt. Bhagwati Devi was residing in the house and only the defendant was living in a portion of the house described at the foot of the plaint as the plaintiff's licensee. It was added by an amendment of the plaint that Smt. Satti, widow of Manni Lal (son of Smt. Bhagwati Devi) lived in the house so long as she lived as the plaintiff's licensee and never had any right in the property.

The plaint proceeds on to allege that the plaintiff mostly lives at Calcutta in connection with his business, that on coming to know that the defendant had in connection with recovery of Bhumi Bhawan Kar got a notice issued to himself, the plaintiff filed an objection and the same was summarily rejected without any enquiry on 26th November, 1964. Thereupon the plaintiff warned the defendant several times to refrain from his illegal acts and to admit the plaintiff's ownership but the defendant refused, whereupon the plaintiff revoked the defendant's licence and asked the defendant to vacate the portion of the house in his possession. The defendant refused to do so. Hence the suit.

4. The defendant appellant denied the plaintiff's title ami asserted that Baldeo was not the owner of the house and was not in possession, nor was the plaintiff ever in possession; that even if Baldeo had executed any fictitious and sham deed in favour of his wife, it was not binding on the defendant nor did it create any right in favour of ths plaintiff and that even if the plaintiff's sister has executed any deed in favour of the plaintiff, it conferred no right, or ownership on him. It was further asserted that Mahadeo, husband of Smt. Bhagwati Devi and Beni Prasad, husband of Smt. Satti Devi were in possession over the house in suit as owners and they or their children never lived as licensees of the plaintiff or his father, nor did plaintiff's father ever give any permission to them and that after the death of Mahadeo half portion of the house in suit came to his son Manni Lal and after his death to his widow Smt. Satti, who bequeathed the same by a will executed on 2Jst September, 1961 in favour of the defendant and accordingly after the death of Smt. Satti, the defendant became the absolute owner of the house.

In the end it was pleaded in the alternative that even if plaintiff was able to prove that he was the owner of the house in suit, the defendant having been in adverse proprietary possession over the whole house since the time of his ancestors, the plaintiff's rights were extinguished by prescription. It was also pleaded in the alternative that even if the plaintiff was able to prove that his father Baldeo had granted a licence, the licence stood terminated on his death which was more than 12 years ago and the possession of the defendant's ancestors became adverse to the plaintiff ever since, and thus the defendant had continued to be in adverse possession for more than 12 years and the suit was barred by limitation as prescribed by Article 65 of the Schedule to the Limitation Act. The act of the defendant in getting his name recorded as owner before the Bhumi Bhawan Kar Authorities and the dismissal of the plaintiff's objection by him were justified. It was added that most of the house being dilapidated, Manni Lal, son of Smt. Bhagwati Devi had made it pucca with his own money and the plaintiff was neither owner nor did he ever make any construction.

5. The trial Court framed six issues ot which the first issue raised the question whether the plaintiff is the owner of the house in suit, the second issue was whether the defendant is a licensee in the house In suit, the third whether the suit is barred by time and the fourth, whether the defendant has acquired title by adverse possession. The fifth issue related to the valuation of the suit and the court fees payable and having been decided against the plaintiff the valuation was amended and the deficiency made good. The sixth issue related to the relief to which, if any, the plaintiff was entitled.

6. On the first issue the trial court held that the plaintiff is the owner of the house and is in actual proprietary possession over the disputed portion and that the defendant's case about the ownership was ridiculous. On the remaining issues about the licence and adverse possession, the trial court held that the defendant and Smt. Satti wife of Manni Lal who had executed the will in the defendant's favour were in possession of the portion of the house in suit as plaintiff's licensees and that the first instance of making adverse claim against the plaintiff could be said to be the execution and registration of the will by Smt. Satti in favour of the defendant on 21st September, 1961, but it was not proved that the plaintiff had any notice of the same and that the second instance of assertion of hostile title against the plaintiff was before the Bhumi Bhawan Kar Authority in 1963 onwards. The suit was filed on 3rd June, 1965 and accordingly the issues were answered against the defendant

On appeal before the District Court which was heard and decided by the learned Additional Civil Judge, Mirzapur, three points were formulated as the main points arising for consideration of that court in appeal, namely, (1) whether the plaintiff is the owner of the house in dispute (2) whether the defendant was a licensee of the accommodation in dispute and (3) whether the defendant has perfected title by adverse possession. The learned Additional Civil Judge first took up the point about the ownership and having held that the plaintiff is the owner of the house in suit, he took up the remaining two points for consideration and found that the defendant was a licensee in the house and did not acquire any title by adverse possession. In the result the defendant's appeal was dismissed.

7. Mr. T. P. Asthana, learned counsel for the defendant appellant raised the following contentions before me: (1) that a transfer of the kind made by the plaintiff's father Baldeo by the deed dated 8th April, 1925 is, under Section 53 of the Transfer of Property Act, voidable at the option of any creditor, defeated or delayed by the transfer, the rights of a transferee in good faith and for consideration are not affected and in case the transfer is not successfully avoided by a suit by the creditors, it remains good and valid for all purposes and its validity cannot at any rate be challenged by the transferor or the persons claiming under him (2) that the transfer made by Baldeo in favour of his wife was by a duly registered sale deed for consideration and was made as far back as on 9th April 1925, that it was not open to the plaintiff to challenge the genuineness, validity, or effect of that sale-deed 40 years after its execution and that the transfer not having been avoided by any creditor and being a good and valid transfer, the house in suit became the stridhan of Bal-deo's wife and devolved on her death on her daughter by succession to the exclusion of the plaintiff, that the plaintiff having had no interest in the house in suit, the deed of relin-quishment executed by his sister Smt. Lal* mani who was the full owner of the house in suit did not and could not operate as a conveyance thereof, with the result that the plaintiff had no right, title or interest in the house in suit and could not be said to be its owner and he had no right to sue; (3) that in the alternative even if the plaintiff's father continued to exercise the rights of ownership in the house and the defendant's predecessors in interest entered into possession in the house in suit or any portion thereof by the licence or permission of the plaintiff's father the licence stood revoked on the licensor's death, and at any rate even if the possession of the defendant's predecessor-in-interest began or continued thereafter with the permission or implied licence of the plaintiff's mother it stood revoked on her death in 1,936, both of which events occurred more than 12 years ago and the possession of the defendant's pre-decessors-in-interest and of the defendant must be deemed to have become adverse in 1925 on the death of Baldeo, the plaintiff's father, or in 1936 on the death of Smt. Ba-santi Devi, the plaintiff's mother and that the defendant had accordingly prescribed title by adverse possession and/or the suit was barred by limitation, the findings to the contrary being erroneous in law.

8. The first two points raised by Mr. As-thana really relate to the question about the plaintiff's title to the house in suit. However, since I am of the opinion that the defendant's possession was permissive at its source, having commenced during the time of Baldeo, with the latter's permission and licence, it may not be necessary to go into the first question at all. if it is found that the continued possession of the defendants' predecessors-in-interest and of the defendant, up to the date of the assertion of hostile title either by the will of Smt. Satti or by the defendant before the Bhumi Bhawan Kar Authorities, was permissible in character and could not be regarded to be adverse to the plaintiff. I, therefore, proceed to examine the last question first. The lower, appellate court has found as a fact that the defendants predecessor-in-interest Smt, Bhagwati Devi and Smt. Satti Devi entered the house, in suit with the permission and licence of the plaintiff's father Baldeo. That finding could not be successfully assailed before me in second appeal. Learned counsel, however, contended that the licence stood revoked on the death of Baldeo in the year 1925 and the possession of the defendant's predecessors-in-interest became adverse to the true owner thereafter. However. since the defendant appellant's learned counsel had put forth a claim that the house in suit ceased to belong to Baldeo on the execution of the sale deed in favour of his wife, he preferred to proceed on the assumption that the licence stood revoked on the death of Bal-deo's widow and plaintiff's mother Smt. Ba-santi Devi in the year 1936, This also implied the position, that even if the licence or permission to live in the house was in fact granted by Baldeo to Smt. Bhagwati Devi and Smt. Satti Devi before the sale of the house by Baldeo in favour of his wife Smt. Basanti Devi, the latter must have consented to continue the same or in case it was granted by Baldeo after the sale in favour of Smt, Basanti Devi he must have done so as her agent. In either case one has to proceed on the assumption that the licence continued to subsist till the death of Smt. Basanti Devi in the year 1936. After the death of Smt. Bhagwati Devi (sic), Badri Prasad, the plaintiff, would be the owner of the property if his case that the sale was sham and fictitious is accepted and Smt. Lalmani would be the owner to the exclusion of Badri Prasad if the first two points raised by the learned counsel for the defendant appellant were to be accepted. There was, however, nothing to prevent Badri Prasad from acting as the agent of his sister Smt. Lalmani even if the latter were the owner. The lower appellate court has again recorded a finding of fact that the possession of Smt. Satti, wife of Manni Lal under whose will the defendant-appellant is claiming half the property, was with the plaintiffs permission and licence and that the possession of the defendant-appellant could not be said to have become adverse after the death of Smt. Bhagwati Devi (sic). The lower appellate Court has reinforced this inference by finding that the Municipal receipts showed that water charges relating to the house were being paid by the plaintiff respondent.

9. Indeed the first overt act of hostility asserting title in himself by the defendant-appellant occurred in the year 1964 before the Bhumi Bhawan Kar Authorities. In view of these facts and circumstances I agree with the finding of the lower appellate court that the possession of the defendant and before him of his predecessors-in-interest was not adverse to the plaintiff at any time before the year 1964 much less to be able to say that the finding suffers from any error of law.

10. Learned counsel for the defendant-appellant however, contended that the mere fact that the licence stood revoked on the death of Smt. Bhagwati Devi (sic) was sufficient in law to make the possession of the defendant and his predecessor-in-interest adverse to the plaintiff. Learned counsel relied on the case Chinnan v. Ranjithammal (AIR 1931 Mad 216) in support of the aforesaid proposition as also on Nand Gopal v. Brij Mohan Lal (1966 All LJ 166). I need not go into this question in view of the settled law declared by the Supreme Court in State Bank of Tra-vancore v. A. K. Panicker : AIR1971SC996 that; 'permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more.' Even if the licence terminated in the year 1936 there is no evidence of any overt act or by (way) of any assertion of hostile title for more than 25 years thereafter and in view of the relationship between the parties and the circumstances in which the possession of the defendant appellant's predecessors-in-interest began, it must be presumed that they continued in possession even after the death of Smt. Bhagwati Devi (sic) by the implied if not the express licence of Badri Prasad, As has been observed by the learned civil Judge there does not appear to have been any expression of animus of adverse or hostile possession before the execution of her will by Smt. Satti. wife of Manni Lal in favour of the defendant-appellant in September, 1961 and that under the circumstances the plaintiff's assertion that he permitted Smt. Satti wife of Manni Lal to live in the house is highly probable. It must, therefore, be held that the defendant-appellant and before him his predecessors-in-inte-test continued to live in the house in suit, after the death of the plaintiff's mother Smt. Basanti Devi, with the plaintiff's permission and licence. That being so, no other point survives for consideration in view of the provisions of Section 116 of the Indian Evidence Act.

11. In the result, the appeal fails and is dismissed with costs.


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