- (1.) This is a dispute between brother and sister. The brother originally instituted a suit as against the sister in 1967 allegedly terminating the licence of the sister in occupying the portion of the premises of their beloved father . Father, Gostha Bihari Mondal, since deceased in 1941 or 1942 allowed her daughter, respondent herein to remain in the possession of the property with her husband Bepin Chandra Das since accused. Father expired in between 1951 to 1952 survived by widow and the son and daughter as aforesaid. After 1956 (the crucial period for right of inheritance of the property of the famale heir) Bepin, the husband of the sister/daughter of the predeceased, expired. The period of expiry of Bepin is about 1960.
(2.) The suit which has been instituted by the brother for termination of the so- called licence of the sister was dismissed on contest by the Court of first instance from which an appeal was preferred. A remand order was passed by the Court of first appeal at the relevant point of time. From where a Second Appeal was preferred. By an order dated 2-7-1976 in the appeal from appellate decree No. 473 of 1972 the High Court was pleased to observe that the positive case of the sister is that they had raised the disputed structure and was in possession thereof and they acquired title therein by adverse possession. No doubt the lower appellate Court disbelieved such story of the defence. "But I think that the judgment of the lower appellate Court is not a proper judgment inasmuch as it has not taken into consideration the material evidence on record and the pleadings of both the parties. On the other hand, it has proceeded on the footing that during the life time of Goshta Behari Mondal, Bepin Chandra Das came into possession of the disputed room as a licensee and after the death of Goshta Behari Mondal the defendant claimed to have continued their possession in the disputed room adversely."
(3.) In any event, appeal was allowed upon setting aside the order and matter was remitted back to such Court for fresh disposal in accordance with the provision of the law. The first appellate Court framed certain points for the purpose of due consideration. One of such points is "Have the defendants acquired title to the suit property by adverse possession ?" Thereafter it was considered in the following manner. "It is not in dispute that the suit land in premises No. 115, Kali Charan Ghosh Road, originally belonged to plaintiffs father Gostha Behari Mondal. The rent receipts for the year 1346, 47 and 48 B.S. (Exts. 2 to 2B) prove that Gostha was the tenant in respect of the land in premises No. 115. Kali Charan Ghosh Road, D.W. 1 Harimoti, the defendant No. 1 also admitted her father's Original title to the property by saying that he gave them the land in suit. The plaintiffs father Gostha died 18/18 years before the deposed on 28-7-1970. That takes us to 1951-52. In the four conerns of the plaint, it was not stated when the licence was granted to Bipin. Only in his deposition the plaintiff for the first time stated that he granted licence to the defendant No. I's husband 27/28 years ago. That takes us back to the year 1942-43. Therefore, in the absence of any reliable documentary evidence to prove the plaintiffs ownership of the suit property at the relevant time, his deposition that he was the owner of the suit property during his father's life time and was so competent to grant licence to Bipin cannot be accepted. There was no case also that the plaintiffs father granted licence to Bipin during his life time and after his death the plaintiff granted a fresh licence to him. The story of alleged grant of licence to Bipin thus fails to the ground. Admittedly, the defendants are in possession of the suit property for 27/28 years since the time of their predecessor in interest. We do not know how they came into occupation of the suit property, D.W. 1 Harimoti stated in her cross-examination that her father gave them the land in suit and her husband raised the suit room. The plaintiff has not produced anything to show that he or his father constructed the suit structures. The plan (Ext. 1) which was admitted in evidence on formal proof being dispensed with prepared in the year 1950, does not by itself prove that the suit structure was raised by the plaintiff of his father. The plaintiff living in the. same premises had full knowledge of possession of the suit property by the defendants and such possession was admittedly without interruption, continuous and open. It is true that a 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 the true owner for a period of 12 years or more (vide AIR 1971 SC 996). But in this case the story of permissive possession has no legs to stand upon and the defendant's possession must be held adverse by necessary implication. I must, accordingly, conclude that the plaintiffs admitted title to the property has been extinguished by adverse possession of the defendants. These points are thus answered against the plaintiff/appellant".;