GANESH PRASAD JAGANNATH PRASAD Vs. NARENDRALAL NATTHULAL GUPTA

JUDGEMENT

(1.) THIS appeal is by the plaintiff against the order refusing temporary injunction.

(2.) THE plaintiff's case is that he advanced a loan of Rs. 5,000/- to Kalloolal against the delivery of possession of the suit plot with an agreement that Kalloolal shall, with the approval of his family members, execute a sale-deed of the suit plot and in the event of failure shall repay the loan without interest. In pursuance of the agreement, Kalloolal delivered possession of the suit plot and the plaintiff started his business by raising a temporary structure on the said plot. In August, 1956, the plaintiff constructed a room on the suit plot with prior intimation to Kalloolal. Kalloolal served a quit notice dated 18-8-1956 on the plaintiff treating him as a tenant. On receipt of the notice, the plaintiff reminded Kalloolal to execute the sale-deed. In reply Kalloolal offered to sell his adjacent plot, which was rejected by the plaintiff. Meanwhile Kallolal died in November 1957, and the plaintiff remained in possession of the suit plot as owner peacefully continuously without interruption of the defendants. The plaintiff made further additions by constructing a godown and boundary wall. Thus, the plaintiff pleaded that from December 1955, he is in peaceful continuous and uninterrupted possession, hostile to the defendants as exclusive owner of the plot. The plaintiff perfected his title over the suit plot in July 1968. Meanwhile, in C. S. No. 16a of 1964 for partition a decree, on compromise between the parties, namely, heirs of Kalloolal, was passed in which, the suit plot, along with other property, fell to the share of defendant No. 1 Narendralal. The plaintiff was not a party to that suit. One Rajendra Kumar Gupta, the son of defendant No. 1, appraised him and also proposed that the plaintiff should accept him as landlord of the suit plot, else he threatened to execute the decree, disclosing his relations with the Judges of High Court and the orders of Additional Distict Judge. These threats created clouds on his title and apprehension of dispossession in execution of the said decree. Hence he filed suit for declaration of title by adverse possession, and perpetual injunction to restrain the defendants from executing decree in Civil Suit No. 16-A/64 and not to disturb his possession over the suit plot. The plaintiff also applied for temporary injunction to restrain the defendants from executing the decree in the said partition suit. The application was dismissed by the learned trial Court. Hence this appeal.

(3.) AS seen above, the plaintiff's suit is based on possessory title acquired by adverse possession. The question for decision is whether the plaintiff has a prima facie case in his favour. Admittedly, he entered into possession of the suit plot under oral agreement of sale in case Kalloolal failed to repay the loan within six months. Since Kalloolal allegedly failed to repay the loan the plaintiff, continued in possession of the suit plot. There is no document to evidence the alleged loan or the agreement to sell. The plaint allegations also do not clearly specify, whether the consideration for alleged sale was the amount representing the loan or the contract was to be further negotiated and discussed after consultation by Kalloolal with his family members. Even if the plaint case is accepted for disposal of application for temporary injunction, putting the plaintiffs case at the highest, is that the plaintiff entered into possession as a prospective purchaser or in part performance of the agreement, in other words with the permission of Kalloolal. A possession by permission or licence from the owner, is not adverse and cannot ripen into title, no matter how long continued or however exclusive it may be, Kodoth Ambu v. Secretary of State, AIR 1924 PC 150. So long as the occupation is under permissive possession, it cannot be adverse, but when the permission is (a) withdrawn, or (b) terminated by efflux of time, or (c) the occupant disclaims, or (d) gives notice of such disclaimer to the person under whom he entered, he holds adversely, Mahendra Bahadur v. Chandrapal, 1955 NLJ 519, AIR 1955 Nag. 221. There is no reliable evidence on record to show any of these. His initial entry on the suit plot was with the consent and permission of Kalloolal.