NIRMAL CHAND Vs. GAYA PRASAD DIKSHIT AND ANOTHER

JUDGEMENT

(1.) JUDGEMENT The only question which calls for determination in this second appeal is one of limitation. The relevant facts in the context of which this question requires to be answered, have been finally determined by the final court of facts. The said facts could not be and have not been rightly disputed before me.

(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.) 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.