JUDGMENT
R.N. Misra, J.
1. The plaintiff is in appeal against an affirming judgment of the Subordinate Judge, Kendrapara. He sued for title and recovery of possession of the disputed property upon ejectment of the defendant No. 1 from the house standing on the disputed property. The total extent of the disputed property is 3 decimals and 6 kadis; 2 decimals appertain to plot No. 612 and the remaining to plot No. 613.
2. The plaintiff’s contention was that the defendant No. 1 was a permissive occupant of the disputed property which belongs to him. The defendant No. 1 is a carpenter. He and before him his father were doing the work of the plaintiff and were permitted to occupy the house. In paragraphs 10 and 12 of the written statement this permissive occupation has also been admitted in clear terms. Notwithstanding that fact, the learned trial Judge gave a decree in part holding that the plaintiff was entitled to his claim in plot No. 613; but in respect of the house in plot No. 612, the defendant No. 1 had acquired title by adverse possession.
3. Two appeals were filed — one by the plaintiff and the other by the defendant — in the lower appellate court. The learned appellate Judge dismissed both the appeals. The present appeal before this court is only by the plaintiff, the claim having been confined to plot No. 612.
4. From the plea taken in the written statement, which has been referred to above, it is difficult to find that there was any claim of adverse possession in regard to this property. The plaintiff had anterior title which has been found. When the defendant No. 1 came forward with the claim of adverse title it was for him to establish it. In view of the specific plea foundation for a claim of adverse possession was not laid and the learned Appellate Judge seems to have gone wrong in affirming the decree of the trial Court that a claim for adverse :itle had been established. The courts 3elow seem to have taken the view that even if the father was a permissive occupant with the coming of the son, the possession became adverse. There is material on record that the permissive occupation was 11 respect of the entire family and the son was also living in the family along with the Father during the lifetime of the father. In such circumstances, it cannot be held that merely because the father died and the son came into possession, the son’s possession became adverse. It is well settled that when possession commences in a permissive character it does not become adverse unless by some positive overt act it is indicated that such possession became adverse either in the hands of the successor or even in the hands
of the original permissive occupant. The legal position seems to have been clearly laid down in the case of Beni Madhavprasad v. Kasiklal Ambalal, AIR 1959 Madh Pra 23 and in the case of Nand Gopal v. Brij Mohan Lal, 1966 All LJ 166. In view of such position in law, I think the courts below went wrong in overlooking the admission in file written statement and decreeing the title of the defendant on the footing of adverse possession.
5. The appeal succeeds and the plaintiff’s suit is also decreed in respect of plot No. 612. There would, however, be no order as to costs as there is no appearance for the respondent.