Delhi District Court
Sh. Ram Phal vs Rca No. 12/2017 Page 1 Of 5 on 15 November, 2018
Ram Phal & Ors. V. Shashi Garg & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO.: 12/2017
UNIQUE CASE ID NO.: 89/2017
IN THE MATTER OF :
1. Sh. Ram Phal
S/o Sh. Sukhdev Sharma
2. Sh. Naresh
S/o Sh. Ram Phal
3. Sh. Sonu
S/o Sh. Ram Phal
4. Sh. Vikram
S/o Sh. Ram Phal
All R/o H. No.10430,
Gali Pathshala Wali,
Ram Nagar, Manak Pura,
Delhi. ....APPELLANTS/
DEFENDANTS
VERSUS
RCA No. 12/2017 Page 1 of 50
Ram Phal & Ors. V. Shashi Garg & Anr.
1. Shashi Garg
W/o Sh. Rajinder Garg
R/o H. No.10429 to 32,
Gali Pathshala Manak Pura,
New Delhi - 110 005.
Also at
8688/14B, Shidi Pura,
Karol Bagh, New Delhi110005.
2. Smt. Meenu Garg
W/o Sh. Ashok Garg,
R/o 8688/14B, Shidi Pura,
Karol Bagh,
New Delhi - 110 005. ....RESPONDENTS/
PLAINTIFFS APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE IMPUGNED JUDGMENT AND DECREE DATED 09/03/2017 Date of institution of the Appeal : 06/04/2017 Date on which Judgment was reserved : 18/10/2018 Date of Judgment : 15/11/2018 :J U D G M E N T:
1. The Appellants were defendants and respondents were the plaintiffs before the Ld. Trial Court. The appellants and respondents are respectively referred in this Judgment according to the original status before the trial court. The RCA No. 12/2017 Page 2 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
defendants/Appellants are dissatisfied with the Final Judgment and Decree dated 09.03.2017 passed by the Ld. Trial Court in Civil Suit No. 97456/2016 (Old No. 101/2016).
2. Succinctly stated, the Plaintiffs have filed a Suit for Possession, permanent Injunction and Mesne profits on the following facts:
(i) The plaintiffs are sistersinlaw and are the joint owners of the property bearing No.10429 to 32, Gali Pathshala, Manak Pura, New Delhi - 110 005 (hereinafter be referred to as 'said property'), by virtue of duly registered sale deed dated 13.04.1994 registered on 15.04.1994. The defendant No.1 is stated to be Karta and the father of defendants No.2 to 5. The defendants are in an unauthorized occupation of one shop situated on the ground floor of the said property as shown in red color in the site plan from where the defendants are carrying on their business in trade of milk and miscellaneous products and another room situated on the first floor of the said property as shown in red color in the site plan (both the room hereinafter be referred to as the suit property) which the defendants are using for the purpose of their residence for themselves and for the members of their family comprising of their wives and children.
(ii) That prior to the time of purchase of the said property by the plaintiffs the defendant No.1 was the tenant RCA No. 12/2017 Page 3 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
under one Sh. Daya Nand, the erstwhile owner of the said property. It is alleged that certain disputes and differences between the erstwhile owner and defendant No.1 arose and also certain litigation ensued between them about which the plaintiffs do not know. In March, 1994 owing to the reason of low business potential and paucity of available accommodation owing to the large family of the defendant No.1, the defendant No.1 vacated the suit property and shifted elsewhere along with his family after handing over the possession of the suit property to its then lawful owner Sh. Rajiv Goel. It was owing to this reason of vacating the suit property by the defendants that the plaintiffs agreed to purchase the said property from the vendor Sh. Rajiv Goel. In the month of August 1994, the defendant No.1 met the fatherinlaw of the plaintiffs namely Sh. Trilok Chand Garg and requested him to permit/allow the defendants to use the suit property till 31 August 1994 gratuitously.
(iii) The plaintiffs that defendant No.1 assured Sh. Trilok Chand Garg that the defendant No.1 would vacate the suit property by 31st of October, 1994. The grievance of the plaintiffs is that the defendant No.1 failed to keep his promise and did not vacate the suit property on 31st October, 1994, as assured by defendant no.1 to Sh.
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Trilok Chand Garg and continued to be in illegal and unauthorized possession of the suit property.
(iv) Sh. Trilok Chand Garg did not allow the plaintiffs to initiate legal proceedings for eviction against the defendants. Sh. Trilok Chand Garg died on 12th February, 2003. In spite of repeated requests and demands made by the plaintiffs the defendant did not vacate the suit property. A legal notice dated 10.04.2006 was served upon the defendants. The defendant No.1 replied to the said notice vide reply dated 24.04.2006 whereby the defendant No.1 denied the ownership of the plaintiffs and stated that the defendant No.1 was the lawful owner of the suit property.
(v) The defendants were threatening the plaintiff that the defendants would transfer the possession of the suit property to strangers/3rd person in order to teach a lesson to the plaintiffs. The plaintiffs alleged to have bona fide apprehensions and reasons to believe that the defendants were clandestinely negotiating with the third persons/ strangers for transfer of the possession of the suit property.
3. The defendants were served with the notice. The defendants have filed their common written statement. In terms of the written statement, the defendants are in uninterrupted possession of the suit property since 1974. The said property RCA No. 12/2017 Page 5 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
was purchased by one Sh. Rajiv Goel from Sh. Daya Nand in the year 1988, but in the list of tenants the name of the defendants was not mentioned though the name of other tenants had been mentioned at that time. Thereafter in the year 1994 the said property was sold by Sh. Rajiv Goel to the plaintiffs jointly but again the name of the defendants were not mentioned in the array of the tenants as the defendants were in uninterrupted and hostile possession since 1974. On merits the defendants have in sum and substance denied the case of the plaintiff as set up by the plaintiffs in the plaint.
4. In the replication filed to the written statement of the defendants the plaintiffs have reiterated and reaffirmed the case as set up in the plaint and denied the case of the defendants.
5. After completion of the pleadings, vide order dated 16.07.2007 following issues were framed for trial:
1. Whether the names of the defendants have become owners by adverse possession being in uninterrupted and hostile possession of the suit premises since 1974? OPDs.
2. Whether the plaintiff is entitled to a decree of possession along with mesne profits as prayed for? OPP.
3. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP.
4. Relief.
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6. EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND DOCUMENTS RELIED UPON BY THEM:
To prove their case, plaintiffs examined seven witnesses in total.
PW1 Ashok Garg tendered his evidence by way of Affidavit in examinationinchief as Ex.P1. He relied on the following documents:
1. Ex.PW1/1A and Ex.PW1/1B GPA.
2. Ex.PW1/2 site plan.
3. Ex.PW1/3 legal notice.
4. Ex.PW1/4 to Ex.PW1/6 postal receipts.
5. Ex.PW1/7 reply to legal notice.
6. MarkA photocopy of sale deed.
PW2 Rakesh Ranjan, Record Clerk from the office of SubRegistrar 1, Kashmere Gate, Delhi was a summoned witness who brought the summoned record i.e. sale deed dated 13.04.1994 pertaining to H.No.10429 to 32, situated in Manak Pura, Ward No.14, Pahari Dhiraj, Delhi in favour of Shashi Garg and Meenu Garg executed by Rajiv Goyal vide registration No.2702 in Addl. Book No.1, Vol. No.6435 on pages 31 to 38, photocopy of the same is already MarkA. Same was exhibited as Ex.PW2/1 (OSR).
PW3 Pan Singh, Asstt. Grade II, NDPL was also a summoned witness. He brought the following summoned record pertaining to electricity bearing K.No.35400387624 E (Old K.No.4ZK387624): RCA No. 12/2017 Page 7 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
1. Ex.PW3/1 photocopy of application for name change.
2. Ex.PW3/ 2 photocopy of rent receipt.
3. Ex.PW3/3 photocopy of ration card.
4. Ex.PW3/4 rent agreement in the name of Om Prakash Gupta dated 26.04.1968.
5. Ex.PW3/5 internal record for effecting the name change.
6. Ex.PW3/6 reconnection fee receipt dated 03.06.1988.
7. Ex.PW3/7 request letter for reinstallation of the electricity meter.
8. Ex.PW3/8 report dated 30.09.1999 details of meter removal.
9. Ex.PW3/9 reconnection fee receipt dated 08.04.1968.
10. Ex.PW3/10 service connection progress sheet dated 26.04.1968.
PW4 Dharam Vir Singh was also a summoned witness. He brought the record pertaining to electricity bearing K.No.35400387624 E (Old K.No.4ZK387624) issued by Delhi Vidyut Supply Undertaking. Same are Ex.PW4/1 to Ex.PW4/42.
PW5 Shashi Garg i.e. plaintiff No.1 examined herself as PW5 whose examinationinchief is by way of affidavit Ex.P5. PW5 relied on documents already exhibited as Ex.PW2/1, Ex.PW1/2 to Ex.PW1/7.
PW6 Manoj Kumar examined himself by way of his affidavit Ex.PW6/A. PW7 R.D. Sharma examined himself by way of his affidavit Ex.PW7/A. RCA No. 12/2017 Page 8 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
On the other hand, defendants to prove their case, examined seven witnesses in total.
DW1 Rishal Singh was examined by way of his affidavit Ex.DW1/X. DW1 relied on document i.e. photocopy of his voter ID card Ex.DW1/1 (OSR).
DW2 Hari Singh was examined by way of his affidavit Ex.DW2/Y. DW2 relied on document i.e. photocopy of his voter ID card Ex.DW2/1 (OSR).
DW3 Ram Phal i.e. defendant No.1 whose examination inchief is by way of affidavit Ex.DW3/A. DW3 relied on following documents:
1. Ex.DW3/1 (OSR) photocopy of Ration card.
2. Ex.DW3/2 summon to witness issued on 12.06.1980.
3. Ex.DW3/3 summon to accused issued for appearance on 03.06.1976.
4. Ex.DW3/4 cover note of original fire and general insurance company limited.
5. Ex.DW3/ 5 summons issued for appearance on dated 04.07.1975.
6. Ex.DW3/ 6 receipt issued by the office of Inspector for registration of the shop establishment dated 13.09.1982.
7. Ex.DW3/7 registration certificate of the establishment of the shop issued dated 03.03.1983.
8. Ex.DW3/ 8 summon issued dated 15.01.1991.
9. Ex.DW3/ 9 medical report pertaining to son of the DW3.
10. Ex.DW3/10 certificate issued by Inspector Legal Metrology dated 13.05.1994.
11. Ex.DW3/11 summon issued, dated 11.10.1979.
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12. Ex.DW3/12 receipt of payment dated 07.02.1981 before the court of Sh. Nepal Singh, Ld. MM, Delhi.
13. Ex.DW3/13 receipt issued by Delhi Vidyut Board dated 03.06.1988.
14. Ex.DW3/14 challan dated 27.02.1980.
15. Ex.DW3/15 discharge slip of Prem Wati dated 11.09.1976.
16. Ex.DW3/16 challan dated 17.10.1980.
17. Ex.DW3/17 AD Card.
18. Ex.DW3/18 guarantee card dated 04.09.1993.
19. Ex.DW3/19 receipt dated 11.05.1988.
20. Ex.DW3/20 verification certificate from weight and measurement department dated 06.06.1988.
21. Ex.DW3/21 notice dated 23.05.1986.
22. Ex.DW3/22 request letter of business transaction with Krishna A. Electrical Industries dated 11.08.1980.
23. Ex.DW3/23 bill dated 03.06.1988 of Delhi Vidyut Supply Undertaking.
24. Ex.DW3/24 application form for self employment dated 16.09.1986.
25. Ex.DW3/25 summon dated 12.05.1988.
26. Ex.DW3/26 discharge slip from Kasturba Gandhi Hospital dated 08.04.1993.
27. Ex.DW3/27 application received by SHO of Police Station dated 03.06.1975.
28. Mark A photocopy of sale deed dated 21.09.1988 in favour of Sh. Rajiv Goel.
29. Mark B photocopy of sale deed dated 13.04.1994 in favour of Shashi Garg and Meenu Garg.
DW4 Jagdish Chand, Ahlmad from the Office of Labour Commissioner was a summoned witness. DW4 produced the report dated 30.06.2010 with regard to weeding out of old files relating to registration under Delhi Shop & Establishment Act, 1954. Same is RCA No. 12/2017 Page 10 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
Ex.DW4/A. Report examined by Rajinder Dhar, forwarded by Spl. Commissioner (Labour) is Ex.DW4/B. DW5 Satyaveer, LDC from Food and Supply was also a summoned witness who brought the record pertaining to Ration Card No.APL692000010. Same is Ex.DW5/ A. DW6 Satyaveer, LDC from Food and Supply was again summoned who brought the record pertaining to Ration Card No.APL692000010. The record/data is Ex.DW6/A. DW7 Sevajit, Record Attendant from Department of Delhi Archives was a summoned witness. DW7 brought the original summoned record pertaining to sale deed dated 21.09.1988 executed by Dayanand in favour of Rajiv Goel, registration No.4972, Addl. Book No.1, Vol. No.4967 on pages 108111; photocopy of the same is already MarkA, same is Ex.DW7/1.
7. After considering the entire material on record the Ld. Trial Court has passed the impugned Judgment and decree dated 09/03/2017 whereby the suit of the plaintiffs was decreed. The appellants/defendants aggrieved from the Judgment and decree passed by the Ld. Trial Court has sought to set aside Judgment and decree dated 09/03/2017 and praying for dismissal of Suit.
8. In the aforesaid background, the following points for determination arise for the consideration of the present case:
i) Can the order under question be termed as perverse, capricious and arbitrary?
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ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
POWER OF THE APPELLATE COURT IN FIRST APPEAL: Before adverting into the assessment of the factual aspect emerging from the evidence led on the record and proceedings of the present lis, it is worthwhile to lay bare the powers and jurisdiction that can be exercised by the present Court being First Appellate Court. This Court is being termed as the last court for evaluating, reappreciating and reassessing the factual aspect that may be emerging from the record and proceeding of the lis, popularly known as Court of facts and law. The precinct of the power lies in the court coextensive with the trial court and can exercise all the powers that have been vested in the trial court in respect of evaluation and appreciation of evidence and conclusion be drawn on the basis of the fresh evaluation of the evidence and facts be put in the jacket of laws which may be both adjective and substantial one.
An appeal is continuation of the suit. Before more than hundred years, Couch, C.J. in Ratanchand Shrichand Vs. Hanmantrav Shivbak has stated: RCA No. 12/2017 Page 12 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
"A suit is a judicial proceeding, and the word "proceedings" must be taken to include all the proceedings in the suit from the date of its institution to its final disposal, and therefore to include proceedings in appeal."
Appeal is rehearing of the suit. The appellate court possesses the same powers and discharges the same duties as that of the original court. Once an appeal is preferred, the matter becomes subjudice and the appellate court is seisin of the whole case. The hearing of the appeal is, thus, rehearing of the suit or original proceeding.
As West, J. stated, "The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding." Section 107 is reproduced as under: "Sec.107. Powers of appellate Court(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and RCA No. 12/2017 Page 13 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
POWER TO DECIDE A CASE FINALLY; SECTION 107(1)(a) An Appellate Court can decide a case finally. Where the evidence on record is sufficient to enable the appellate Court to pronounce the judgment, it may finally determine the case notwithstanding that the judgment of the trial court has proceed wholly upon some ground other than that on which the appellate court proceeds. The general rule is that a case should, as far as possible, be disposed off on the evidence on record and should not be remanded for fresh evidence, except in rare cases, by drawing a final curtain on the litigation between the parties. "If life like a dome of many coloured glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down."
POWER TO INTERFERE WITH DISCRETION OF LOWER COURT As a general rule, a court of appeal will not interfere with the exercise of discretion by the court below and substitute its own discretion for the discretion of the lower court. It has been said that where the legislature has left the matter in the discretion of a court and with the same pen and ink has provided an appeal from the decision of the court, the task of the court of appeal is not to consider how it would have exercised the discretion, but to examine whether the court below has exercised the discretion judicially and in accordance with well recognized principles of law. Where the RCA No. 12/2017 Page 14 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
discretion has been exercised in good faith on a consideration of all relevant materials and circumstances and without being swayed by irrelevant matters and no injustice has been done by such exercise of discretion by the court below, the appellate court will not interfere with it even if it does not agree with the exercise of discretion by the trial court.
In certain cases however, it is not only the power but the duty of the appellate court to interfere with exercise of discretion by the Court below. Where the trial court had acted arbitrarily or capriciously or in total disregard of sound judicial principles, or without taking into consideration relevant and germane factors or had proceeded on assumptions not borne out or justified by records, or had applied wrong or incorrect legal principles leading to an unjust order, or where was abuse of power by the court below or if the court below fails to exercise discretion or where there is miscarriage of justice, the appellate court will interfere with the discretion.
The power of interference, however, should be exercised sparingly and with circumspection. Though the power of the appellate court is wide, ample and unrestricted it should not be exercised unless such exercise is necessary to relieve the aggrieved party and in the larger interest of justice.
The possibility of the appellate court coming to a different conclusion does not justify interference with the discretion exercised by the court below. The mere fact that the court below RCA No. 12/2017 Page 15 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
has not recorded cogent or sufficient reasons for exercising discretion in a particular manner is no ground for interference by the appellate court if the facts on which discretion has been exercised are present. The burden is on the appellant to prove that the discretion had not been exercised judicially. POWER TO APPRECIATE EVIDENCE An appeal is a continuation of suit. The appellate court hence, can review the evidence as a whole subject to statutory limitations, if any, and can come to its own conclusion. Once a decree passed by the court of original jurisdiction has been appealed against, the matter becomes subjudice and the appellate court is seisin of the whole case. The hearing of appeal is really re hearing of the suit.
POWER TO MODIFY DECREE An appellate court may pass any decree or made any order which ought to have been passed or made and may also pass or make such further or other decree or order as the case may require. The said power may be exercised by the appellate court not only between the appellant and the respondent but also between the respondent interse. The provision enables the appellate court to grant a relief not only to the appellant who has filed an appeal but also to the respondent who has neither filed an appeal nor filed crossobjections.
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OTHER POWERS An appellate court may pass any order which could and ought to have been passed by the original court. It can also make such other or further order as the case may require. An appellate court is competent to make any incidental or interlocutory order as could have been made by an original court.
Thus, during the pendency of appeal, if the defaulting tenant pays rent, an appellate court may grant relief against forfeiture. Looking to the conduct of the tenant, however, it may decline to grant relief. The question is not one of jurisdiction but of discretion. Similarly, the appellate court may pass a decree if it is of the view that such a decree ought in law to have been passed by the trial court. In a suit for redemption, an appellate court may investigate into claim for damages for waste by the respondent during the pendency of appeal. It can also hold local inspection. It can record compromise in execution proceedings. It can restore an appeal dismissed for default of appearance, delete or substitute parties in appeal, can permit withdrawal of appeal, can appoint receiver or commissioner, can reconstruct record lost or destroyed, can set aside exparte decree to reject plaint or memorandum of appeal, can reject plaint or memorandum of appeal; can stay execution proceedings etc. ARGUMENTS OF DEFENDANTS/APPELLANTS
1. The trial court has not appreciated the fact that when the property in question was transferred from Sh.Daya Nand to RCA No. 12/2017 Page 17 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
Sh.Rajiv Goel, neither the name of appellants/defendants, nor Smt.Prem Wati mentioned in the array of tenants, though the name of other tenants reflected and thereafter when Sh. Rajiv Goel transferred the property in question in favour of the respondents/plaintiffs, neither the name of appellants/ defendants nor of Prem Wati was mentioned in the array of tenants.
2. The appellant no.1/defendant no.1, Shri Ram Phal has made some payments i.e. Rs.30,000/ Rs.40,000/ to erstwhile owner Shri Daya Nand to purchase the suit property, but no document in regard of the transaction were prepared due to some unavoidable circumstances. Shri Daya Nand who was owner of the suit property neither treat the appellants as a tenant nor licencee that is why he has not shown the name of Prem Wati as well as appellants/defendants in the array of tenants or licencee. The transaction between Shri Daya Nand and appellants was not completed, that is why appellants cannot be said lawful owner of the suit property, then they would be treated as a person having adverse possession, as they are in continuous and hostile possession of the suit property.
3. The learned trial court has not appreciated the fact that re spondents/plaintiffs were not able to prove the fact of rela RCA No. 12/2017 Page 18 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
tionship of landlord and tenant between the parties to the suit.
4. The trial court has not appreciated the fact that the site plan was not prepared, when sale deed dated 13/04/1994 was exe cuted, as well as in the year 1988, when the same was trans ferred by Daya Nand to Shri Rajiv Goel. The Hon'ble Trial Court has not appreciated the settled proposition of law, wherein it is settled that during the course of registration of the sale deed, site plan is necessary to prepare with the sale deed and without site plan, the sale deed having no value in the eyes of law.
5. The trial court has not appreciated the evidence on record properly, the rent receipt Ex.PW4/13 reflect the period of pay ment of rent from 01/05/1988 to 31/05/1988, the sale deed of the property in question was executed by Daya Nand to Shri Rajiv Goel on 21/09/1988, wherein neither the name of Prem Wati, nor name of the appellant no.1/defendant no.1 was shown as a tenant and if the possession of the defen dants treated adverse from the execution of sale deed from the year, 1988, the appellants/defendants have completed the pe riod of 12 years of limitation prescribed by law of land for the purpose of adverse possession.
6. That non completion of transaction between erstwhile owner Daya Nand and Smt.Prem Wati and appellants/ defendants RCA No. 12/2017 Page 19 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
reflects that the appellants/ defendants are in adverse pos session of the suit property, because the attitude and behav ior of the previous owners declares that the appellants are in adverse possession of the same. The fact that the appellants/defendants have acquires the right of full owner ship and superior title even against the true owner, i.e. Daya Nand, Rajiv Goel and the respondents/ plaintiffs.
7. The trial court has not appreciated the fact that the respon dents/plaintiffs are not able to prove averments of plaint, wherein they have mentioned that defendant no.1/ appellant no.1 was tenant of Daya Nand, erstwhile owner of the prop erty. The respondents/appellants have not produced any wit nesses by whom they could prove that possession of the suit property at any point of time was handed over by appellant no.1/defendant no.1 to Shri Rajiv Goel.
8. Smt. Prem Wati wife of defendant no.1/ appellant no.1 is not impleaded as party in the present suit, though on the basis of rent receipt Ex.PW3/2 the Hon'ble trial court treat the appel lants/ defendants as a tenant/licensee in the suit property, in fact, if the Hon'ble Court treat the appellants/defendants as a licensee, the same would be of Prem Wati not of the respon dents, because the rent receipt whatever it is in the name of Prem Wati, not in the name of the appellants/defendants.
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9. That without impleading Prem Wati as a party in the present suit the order/judgment/decree cannot be passed against the person who is not the party to the suit, as the Hon'ble Trial court has treated the appellants/defendants as tenants/licensee on the basis of the rent receipt in the name of Smt.Prem Wati, though the same is not counterfoil of the rent receipt, the signature of Prem Wati shown on the plane paper without any description which is looked forged and fabricated on bare perusal.
10. The signature of Smt.Prem Wati upon the rent receipt and counter foil were not proved by any witness, neither any handwriting expert engage to establish the truth that counter foils as well as rent receipts were signed by Smt. Prem Wati.
11. The respondents/ plaintiffs were also tenant in the property in question and they very well know about the status of the appellants/appellants in the suit property, despite that at the time of purchase of the suit property, they have not bothered to request the erstwhile owner to add the name of the appellants/defendants in the array of the tenants.
12. The trial court has not appreciated the fact that the rent receipt Ex.PW3/3 does not contain complete description as well as not appreciate the fact that the witness by whom the photocopies of rent receipts were produced during the course of his statement, he deposed before the Court that he has not RCA No. 12/2017 Page 21 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
matched the same with the original record and the original record was not perused by him before producing the record before the Hon'ble Court. The witness is not aware of the fact that the rent receipts are placed on record after moving of application of connection of electricity and same is manipulated or not.
13. The Trial Court erred in appreciation of evidence while treating the possession of the suit property through Smt. Prem Wati as a tenant, if the possession as a tenant from Prem Wati has been shown the suit is not maintainable in the eyes of law, the respondents/plaintiffs had to file petition in the light of DRC Act, as rate of rent which is mentioned in the rent receipt is Rs.20/ per month and if the Hon'ble Court presumed the possession of the appellants/defendants from Smt.Prem Wati, then the suit of the respondents/plaintiffs is not maintainable.
FINDINGS OF THE COURT The first and foremost defence of the Appellants/Defendants is that the Appellants/Defendants were/are in adverse possession of the suit property and therefore, became owners by way of adverse possession and thus, the suit of the plaintiffs is not maintainable in the eyes of law. The Ld. Trial Court has dealt with the said question/issue in detail and the findings of the Ld. Trial Court are as follows: RCA No. 12/2017 Page 22 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
"Whether the names of the defendants have become owners by adverse possession being in uninterrupted and hostile possession of the suit premises since 1974? OPD.
14. The onus of proof with respect to the issue under discussion is upon the defendants.
15. First of all all the facts on the basis of which the plaintiff is claiming to be adverse possession as averred in the plaint is that, "the defendants are in uninterrupted possession of the property in question, since 1974." But, the defendants have not mentioned as to how the defendants came into the possession of the suit property. The defendants claim to be the owner of the suit property as, "they are in uninterrupted and hostile possession of the property since 1974". (Para 3 of written statement on merits). Nowhere in the written statement of the defendants the defendants have stated as to in what manner the defendants came into the possession of the suit property.
16. It may be stated that the admitted facts between the plaintiffs and the defendants is that it was one Sh. Daya Ram or Daya Nand who was the original owner of the property. From the case of the plaintiff it appears that the defendants came into the possession of the suit property as the tenant, but the defendants in their written statement have denied that the defendants were the tenant under Sh. Daya Ram.
17. It is also the admitted case of the plaintiffs and the defendants that the said property of which the suit property is a part was sold by Sh. Daya Ram in RCA No. 12/2017 Page 23 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
1988 to Sh. Rajiv Goel and it is from Rajiv Goel that the plaintiffs purchased the said property along with suit property vide registered sale deed Ex.PW2/1.
18. Adverse possession implies the possession by a person holding the land on his own behalf of some other person and setting up his claim as the true owner of the land. If adverse possession is continuous, peaceful, undisturbed and open for more than prescribed period which is 12 years then title of the true owner is extinguished and the person in possession becomes the true owner. The essential ingredients of adverse possession are which are to be satisfied before a person can be successful in the plea of adverse possession are:
(a) the possession must be adequate in continuity,
(b) in publicity and
(c) possession must be to the extent to show that it is possession adverse to the competitor/ true owner.
19. The Latin maxim which expostulates pithily the essentials of adverse possession is, "nec vi nec clam nec precario". [See also, S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254 where it has also been held that long possession is not necessarily adverse possession].
20. For adverse possession both animus and corpus is necessary to constitute adverse possession.
21. The Indian Limitation Act has provided that 12 years adverse possession of land by a wrongdoer RCA No. 12/2017 Page 24 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
not only bars the remedy and extinguishes titles of the rightful owner but confers a good title upon the said individual. After the lapse of statutory period of limitation the person in adverse possession acquires the right of full ownership and acquires superior title even against the true owner the latter may be treated as trespasser.
22. The Hon'ble Gauhati High Court in Harballaq Sharma v. Mahodar Sharma, AIR 1975 Gau 76 has observed that, "The concept of "Adverse Possession"
may be understood as such possession commencing in "wrong" and being continued as against right. It is actual hostile possession as against true owner by express or implied denial of title".
23. The Hon'ble Supreme Court in State of Haryana v. Mukesh Kumar 2012 AIR (SCW) 276 has held: A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession."
24. The Hon'ble Supreme Court in Annasaheb Bapusaheb Patil v. Balwant @ Balasaheb Babusaheb Patil 1995 AIR (SCW) 709 has in para 13 of the judgment observed: Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the RCA No. 12/2017 Page 25 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person joint those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (emphasis supplied)
25. In para 14 of the said judgment it been further held: Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (emphasis supplied) RCA No. 12/2017 Page 26 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
26. In view of the above discussion the essential ingredients of adverse possession are; actual and continuous possession along with necessary animus on the part of the person intending to perfect his title to the property by adverse possession. The possession of the property with the bonafide belief that the same belongs to the would disclose absence of necessary animus for perfecting the title by adverse possession in relation to such property. Unless the enjoyment of the property is accompanied by adverse animus, mere possession for a long period, even over a statutory period, would not be sufficient to mature title to the property by adverse possession. Certainly, these essential ingredients of adverse possession are to be established by the person claiming acquisition of title to a property by adverse possession. (Ref. Bhimrao Dnyanoba Patil v. State of Maharashtra, AIR 2003 Born 80).
27. As already stated in the written statement the defendants have not averred anywhere as to how the defendants came into the possession of the suit property. If the defendants came into the possession of the suit property which is referable to any legal title for e.g. tenant or even as a licensee etc. the defendants in view of the judgment of the Hon'ble Supreme Court Annasaheb Bapusaheb Patil (supra) cannot claim adverse title even if it is assumed that the defendants are in continuous, uninterrupted possession of the suit property since 1974.
28. As the adverse possession begins in wrong therefore the defendants do not have any equity in RCA No. 12/2017 Page 27 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
their favour and if there is any ambiguity no benefit of any kind can be given to the defendants. Only for the reason that the defendants have not mentioned as to how the defendants came into the possession of the suit property the claim of the defendants regarding adverse possession is liable to fail.
29. The perusal of the record reveals that on behalf of the defendants an application under Order 6 Rule 17 Code of Civil Procedure was moved for filing the amended written statement, but vide order dated 08.07.2013 the said application was dismissed and the amended written statement which was filed along with the application was not taken on record. However, the perusal of the amended written statement it appears that the defence which the defendants were trying to set up was that the suit property was purchased by the defendants by paying Rs.30,000/, but no document was executed. It must have been with some purpose that even in the amended written statement it was left ambiguous as to how the defendants came into possession of the suit property. In para 4A it is mentioned, "the possession of the property in question was 'taken' by the defendant No.1 in the year, 1974." It has not been purposely left ambiguous as suit property was taken as what...tenant, licensee, owner? But from the narration in the para 4A of the amended written statement it appears that the suit property was purchased.
30. The court is aware that as the amended written statement is not the part of the record the same cannot be taken into consideration by the court for RCA No. 12/2017 Page 28 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
the purpose of deciding the present suit. But for the sake of argument assuming that what has been stated by the defendants in the amended written statement is true then if the intention of the defendant No.1 was to purchase the suit property and the intention of the erstwhile owner Sh. Daya Nand was to sell it and Sh. Daya Nand took the sale consideration and gave the possession of the suit property to the defendants BUT did not execute any registered instrument then at best the status of the defendants in the suit property would be that of the licensee. If the defendants are claiming to be the owner of the suit property on the basis of having the suit property purchased from the lawful owner, but because of any legal flaw e.g. the defendants not having registered sale deed, then in such a situation the defendants cannot claim adverse possession. (Ref. Dr. Shekhar Shah v. Government of Maharashtra 2016(230) DLT 145) it may be sated that in the crossexamination the defendants No.1 (DW3) has stated similar to what has been averred in the amended written statement, "I had paid for consideration amount in cash. Daya Ram the erstwhile owner did not issue me any receipt of consideration amount". The deposition is beyond pleading of the defendants.
31. In the deposition of the witnesses of the defendants (DW1, DW2 and DW3) there is only the deposition with respect to the fact defendants were residing in the suit property since 1974 and that the possession of the defendants were continuous, uninterrupted and peaceful. The deposition of the witnesses of the defendants have not deposed regarding all the ingredients which are necessary to be proved for the claim of adverse possession. At RCA No. 12/2017 Page 29 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
the costs of repetition it is again stated that none of the witnesses have deposed as to how the defendants came into the possession of the suit property which was the sine qua non to be proved before which the claim of adverse possession could be claimed by the defendants. Further, there is no evidence regarding 'animus' regarding the calming the possession of the suit property against the plaintiffs or any of the erstwhile owners of the suit property. The defendants No.1; DW3 in his examinationinchief Ex.DW3/A has deposed with respect to the reply which was sent by the defendants to the legal notice of the plaintiffs that, "...wherein the deponent already disclosed that he is in continuous and uninterrupted possession of the property in question without any hindrance since 1974 and the possession of the property in question came in the hands of the defendants No.1/deponent from Sh. Daya Nand erstwhile owner of the property". It has already been discussed as to why the herein quoted deposition of the defendants No.1 is impotent to confer any right upon the defendants by way of adverse possession and all the documents which are being relied upon by the DW3 for showing the possession since 1974 are utterly inefficacious for the claim of adverse possession. Those documents show only the possession not that the possession of the defendants were adverse or hostile to anybody or that the defendant No.1 is by way of such documents is the owner of the suit property.
32. Ex. PW4/ 13 i.e. is the copy of the counterfoil of the original rent receipt filed by Smt. Prem Wati, the wife of the defendant No.1 which it is deposed to by the PW4; Sh. Dharam Vir Singh was filed along RCA No. 12/2017 Page 30 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
with the application for getting the electricity connection changed in the name of the wife of the defendant No.1. PW4 in his examinationinchief deposed that the electricity connection in the suit property was earlier in the name of Sh. Om Prakash Gupra. An application was filed by the wife of the defendant No.1 for the change of name of the electricity connection with which Ex.PW4/13 was filed. The defendant No.1 in his crossexamination as DW3 deposed that, "...he had at that time sought electricity connection as a tenanent (sic tenant) in the suit property in the name of his wife. Vol. After getting the electricity connection, I paid Rs.40,000/ Daya Nand". Ex.PW4/13 mentions that rent was paid for the period from 01.05.1988 to 31.05.1988. Overlooking the fact that there is contradiction in the amount of money which was allegedly paid by the defendant No.1 to Sh. Daya Nand; from Ex.PW4/13 it has become crystal clear that the status of the defendants in the suit property was admittedly that of the tenant in the year 1988 which is precisely the case as set up by the plaintiff in the plaint. In para 4 of the plaint it has been averred to that the defendant No.1 was tenant under one Sh. Daya Nand which is indicated and proved by the document Ex.PW4/13.
33. It is the case of the defendants themselves that the possession of the defendants of the suit property was uninterrupted since 1974. Then even if the court takes that the plaintiffs could not prove that when the said property was purchased by the plaintiffs from Sh. Rajiv Goel in the year 1994 vide sale deed Ex.PW2/1, the defendants were not in the possession of the suit property even then the status of the defendants qua the suit property RCA No. 12/2017 Page 31 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
would remain that of the tenant even if the defendants did not pay any rent to anybody. As the defendants came into the possession of the suit property by way of legal title therefore the defendants in view of the judgment of the Hon'ble Supreme Court in Annasaheb Bapusaheb Patil (supra) cannot claim adverse possession and the issue under discussion is liable to be decided against the defendants.
34. It has been the case of the defendants that as in the sale deed which was executed by Sh. Daya Nand in favour of Sh. Rajiv Goel Ex.PW2/1 and the sale deed which was executed by Sh. Rajiv Goel in favour of the plaintiffs Ex.PW2/1 the name of the defendants have not shown to be the tenants, therefore the defendants have been recognized as the owner/or in hostile possession. Suffice to say that mere the fact the in the sale deed executed by the erstwhile owners of the said property the defendants were not mentioned as the tenants does not mean that the defendants have any rights in the suit property. The other side of the coin is that the erstwhile owners in the sale deed also did not mention that the defendants were the owner of the suit property or were not the tenants in the suit property.
35. The fact that the defendants are claiming to be the owner of the suit property on the strength of the fact that consideration amount of Rs.30,000// 40,000/ was paid by the defendant No.1 shows that defendants did not have the requisite animus to have the possession of the suit property 'adverse' to anybody....."
RCA No. 12/2017 Page 32 of 50Ram Phal & Ors. V. Shashi Garg & Anr.
This Court does not find any infirmity in the aforesaid findings of the Ld. Trial Court. The Ld. Trial Court has dealt with the issue No.1 in detail and the Appellants have failed to pointout that in what manner, the said findings are perverse, arbitrary or fanciful. In view of this Court, the said findings are the plausible view after looking into the entire facts and circumstances of the present case.
This Court may add to the aforesaid findings that in original written statement, the defendant has not taken any stand that from whom the defendants have taken possession in the year 1974. The said aspect has been dealt in detail by the Ld. Trial Court in the aforesaid findings.
The Amended Written Statement was not taken on record and the application under Order VI Rule 17 CPC was dismissed. However, still the Ld. Trial Court has considered the contents of the said Amended written statement for the sake of arguments and as per the said case, the defendants/Appellants had set up title against title and they have never pleaded in the entire written statement that they were in the possession as tenants either in their own rights or through Smt. Premwati. The moment the Defendants/ Appellants have set up the case of Title in the suit property then, the onus was upon the defendants/Appellants to show that they have requisite Title in the suit property because they were seeking the title on the basis of oral transfer of ownership rights for a sum of Rs.30,000/ or 40,000/ but they have failed to RCA No. 12/2017 Page 33 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
produce even single document to show their ownership rights in the suit property in question, which is mandatory requirement in the eyes of law. Moreover, the Ld. Trial Court has rightly concluded that once the plea was set up regarding the purchase of the property, the question of adverse possession does not arise as the defendants cannot claim their rights as adverse against themselves on the basis of ownership rights. Once the defendants have set up the plea of ownership rights through the erstwhile owner, then the question of setting up the adverse possession against the erstwhile owner does not arise as in view of the defendants, they themselves have become owners and the defendants cannot set up the claim of adverse possession against themselves. The consideration amount was shown to be more than Rs.100/, therefore, it was incumbent upon the defendants to prove on record that the defendants/Appellants were having ownership rights by way of registered documents in the nature of Sale Deed, in terms of Section 54 of the Transfer Property Act and Section 17(1) (a) of the Registration Act. The claiming of ownership rights in the immovable property is barred in view of Section 49 of the Registration Act, as in the teeth of the said provision, no rights existed in the property if the compliance of Section 17(1) (a) of the Registration Act is not done. Moreover, the defendants/Appellants cannot claim the rights in view Section 53A of Transfer Property Act as admittedly, there was no written contract/agreement between the erstwhile owner and none of the defendants/appellants. The question of adverse RCA No. 12/2017 Page 34 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
possession against themselves is new terminology, which the defendants/ Appellants are trying to set up by way of their arguments. Although, the Ld. Trial Court has cited various Judgments, however, I have profit to refer the following Judgment of Hon'ble Supreme Court: BANGALORE DEVELOPMENT AUTHORITY VERSUS N. JAYAMMA MARCH 10, 2016. CIVIL APPEAL NO. 2238 OF 2016. Paras No.15 to 21 are reproduced herein for the sake of brevity: "15. Coming then to the question whether the plaintiffsrespondents could claim adverse possession, we need to hardly mention the well known and oft quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when possession is peaceful, open, continuous and hostile. The essentials of adverse possession were succinctly summedup by this Court in Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 in the following words: "11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and RCA No. 12/2017 Page 35 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128)."
"16. Reference may also be made to the decision of this Court in Saroop Singh v. Banto (2005) 8 SCC RCA No. 12/2017 Page 36 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
330, where this Court emphasized the importance of animus possidendi and observed: "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376).
30. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has the requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1 SCC 371, SCC para 21.)"
"17. Also noteworthy is the decision of this Court in Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639, where this Court held that claim of title to the property and adverse possession are in terms contradictory. This Court observed: "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his RCA No. 12/2017 Page 37 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
"18. To the same effect is the decision of this Court in Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543, where this Court elaborated the significance of a claim to title viz.aviz. the claim to adverse possession over the same property. The Court said: "15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation.
Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
RCA No. 12/2017 Page 38 of 50Ram Phal & Ors. V. Shashi Garg & Anr.
"19) After taking note of the principle of law relating to adverse possession in the aforesaid manner, this Court commented about the erroneous approach of the High Court in the following manner: "19. The Courts below have not seen the plaintiff respondent's claim from the above perspectives. The High Court has, in particular, remained oblivious of the principle enunciated in the decisions to which we have referred herein above. All that the High Court has found in favour of the plaintiffs is that their possession is established. That, however, does not conclude the controversy. The question is not just whether the plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the appellantBDA. The fact that the plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorized occupation of property that stood vested in the BDA."
"20) In addition to the discussion contained in M. Venkatesh case noted above, we may also add what was held in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. 15 (2007) 6 SCC 59: "5. Adverse possession in one sense is based on the theory or presumption that the owner RCA No. 12/2017 Page 39 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; and City of Rock Springs v. Sturm)."
"21) In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors. 16 (2013) 6 ADJ 119, the Allahabad High Court has observed as under: "21. The principle of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation.
The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in the East India Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies) 43.
xx xx xx "23. The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an 'acquisitive prescription'. A prescription by which a right is extinguished RCA No. 12/2017 Page 40 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
is called 'extinctive prescription'. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription.
Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time."
(Portions bolded in order to highlight) In view of the discussions, adumbrated hereinabove, the defendants/Appellants were not able to prove Issue No.1.
The next issue which the defendants/Appellants have raised that if the plea of the tenancy has been upheld by the Ld.Trial Court, then the Trial Court ought to have dismissed the suit on the basis of Section 50 of Delhi Rent Control Act, as the Rent receipt in the name of the wife was Rs.20/ per month. It is further argued with forensic tenacity that Ld. Trial Court has branded the defendants/ Appellants either as tenant(s)/ licencee(s). The defendants/ Appellants were either tenant(s) or licencee(s) and if they were tenant(s), then they are liable to be protected under Section 50 of Delhi Rent Control Act. It is apposite to mention here RCA No. 12/2017 Page 41 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
that the Plaintiff has pleaded that defendants were earlier the tenant(s) of the erstwhile owner Shri Daya Nand and the defendants have vacated the premises, however, they came in possession of the suit property in view of request of fatherinlaw of the plaintiffs. The said facts were clearly denied in the written statement and the defendants have setup their own claim of ownership/adverse possession. I have profit to refer Para No. 18 passed in Sky Land International Pvt. Ltd. Versus Kavita P. Lalwani, 191 (2012) DLT 594 in respect of the said averments: "18. Forfeiture of lease under Section 111(g)(2) of the Transfer of Property Act.
18. Section 111(g)(2) of the Transfer of Property Act provides that the lease shall determine upon the Lessee renouncing his character by setting up a title in a third person. The effect of such a disclaimer is that it brings to an end the relationship of landlord and tenant and such a tenant is liable to be evicted forthwith.
18.1 In Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375, the Supreme Court held as under: "12. ...Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such RCA No. 12/2017 Page 42 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
immovable property. This estoppel so long as it binds the tenant excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlordtenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule. Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself. In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot coexist with the title in the landlord."
RCA No. 12/2017 Page 43 of 50Ram Phal & Ors. V. Shashi Garg & Anr.
"14. Denial of landlord's title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive? Evans and Smith state in the Law of Landlord and Tenant (4th Edn., 1993, at p.89) that it is an implied condition of every lease, fixedterm or periodic and formal or informal, that the tenant is not expressly or impliedly to deny the landlord's title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord's title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it and so any breach of this condition must be clear and unambiguous. Hill and Redman in Law of Landlord and Tenant (17th Edn., para 382, at pp. 445446) dealing with "acts which prejudice lessor's title" state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may reenter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title..." (Emphasis supplied) 18.2 In S. Makhan Singh v. Amarjeet Bali, 154 (2008) DLT 211, this Court held as under: RCA No. 12/2017 Page 44 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
"5. ...Section 111(g) of Transfer of Property Act provides that a lease of immovable properties come to an end by forfeiture in case of lessee renouncing his character as such by setting up a title in a third person or claiming title in himself. Thus, once a lease stands forfeited by operation of law, the person in occupation of the premises cannot take benefit of the legal tenancy. This provision under Section 111(g) is based on public policy and the principle of estoppel. A person who takes premises on rent from landlord is estopped from challenging his title or right to let out the premises. If he does so he does at his own peril and law does not recognize such a person as legal tenant in the premises..." (Emphasis supplied) 18.3 In Bhagirothi Mohanty v. Kasinath Das, 1996 AIHC 4918, the Orissa High Court held as under: "8. Section 116 of the Evidence Act envisages that a tenant is stopped to deny the landlord‟s title. This doctrine is based on equitable principle inasmuch as once one enters into the premises as a tenant and continues to possess in that capacity, he cannot be heard to deny the lessor‟s title. If he does so, then Section 111(g) of the Transfer of Property Act comes into play. As provided therein, the lessee‟s right to the leasehold property is forfeited by happening of certain events, one of such events being disclaimer or denial of the lessor‟s title. The „disclaim‟ as the word imports, necessarily means renouncement by the party of his character as RCA No. 12/2017 Page 45 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
a tenant either by setting up title by another or by claimant title in himself. The principle embodied in Section 111(g) is based on the principle of justice, equity and good conscience. So a tenant having lawfully entered into leasehold premises, if denies landlord's title, his position in relation to the leasehold land is as a trespasser. In such situation, one of the coowners can maintain a suit for eviction against him..." (Emphasis supplied) (Portions bolded in order to highlight) In the present case, the appellants/defendants have not claimed in entire written statement that they were either tenants of the present owners or the erstwhile owner(s). It is also not claimed that the wife of defendant no.1/ appellant no.1 was/is the owner or she has tenancy rights. The defendants/appellants have setup their own ownership rights or they have claimed adverse possession and categorically denied the landlord and tenant relationship. The principles of Section 111(g) of the Transfer of Property Act comes into play in the present case. I have profit to refer paras No.11 to 13 of the Judgment of Division Bench of Hon'ble High Court of Delhi passed in NAEEM AHMED Versus YASH PAL MALHOTRA (DECEASED) THROUGH LR'S AND ANR decided on 27.07.2012: "11. From the above, it is observed that the decision in V. Dhanapal Chettiar case(supra) is not an authority for the proposition that even RCA No. 12/2017 Page 46 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
if a tenant denies the title of the landlord and claims himself to be owner, he continues to be a tenant in the eyes of law and the protection of the Delhi Rent Control Act is still available to him.
12. As aforesaid, in Kurella's case (supra) and Abdulla Bin Ali's case (supra) when the tenants deny the title of the landlord and the tenancy, the suit filed for recovery of possession is not on the basis of the relationship of landlord and tenant between the parties, and would lie only in the civil suit and not otherwise. In the present case also it is observed that in response to the legal notice, the respondent no.1 denied the relationship of landlord and tenant and denied that the appellant had let out the premises in suit to the respondent no.1. Consequently, the respondent no.1 had repudiated and renounced the relationship of landlord and tenant and set up his own title in the property. Therefore, the appellant had filed the suit for recovery of possession in the civil court since the occupation of the respondent no.1 had become unauthorized and that of a trespasser.
13. In view of the above we hold that the ratio of the decision in S. Makhan Singh case (supra) does not warrant reconsideration. We are, therefore, of the considered opinion that in the facts and circumstances of the case the suit was cognizable by the civil court and the impugned order was RCA No. 12/2017 Page 47 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
erroneous, inasmuch as it held that the same was barred by provisions of Section 50(4) of the Delhi Rent Control Act. The appeal is allowed accordingly. Consequently, the impugned order is set aside. The case is remanded back to the Trial Court with directions to readmit the suit under its original number in the register of civil suits and to proceed to determine the suit from the stage when the impugned order was passed in accordance with law. A copy of this order and judgment along with Trial Court record be transmitted to the court of the concerned District Judge with directions that the matter to be posted before the concerned civil judge for further proceedings."
(Portions bolded in order to highlight) I have also profit to refer para No.24 of the Judgment of Hon'ble High Court of Delhi passed in RSA 5/2016 in the case title as Vijayan vs Harinder Kaur decided on 18.05.2016: "24. The tenant cannot be allowed to approbate and reprobate and is estopped by the edict of law to challenge the title of the landlord. In either of the case, i.e., if the appellant/defendant claims himself to have retained the title of the suit premises by virtue of adverse possession or claims to be a tenant in the suit property, what has to be established is whether the landlord has proved his title to the suit property or whether such rent is being paid by the tenant which would attract the application of Rent Control Act of any particular State. If the tenant RCA No. 12/2017 Page 48 of 50 Ram Phal & Ors. V. Shashi Garg & Anr.
(appellant/defendant in the present case) chooses to claim his ownership of the suit property, the protection of Rent Control Act vanishes."
(Portion bolded in order to highlight) In view of aforesaid dictums of the Hon'ble High Court, it does not lie to the mouth of the defendants/Appellants to claim the benefit of Section 50 of Delhi Rent Control Act. Accordingly, the arguments of the defendants/appellants in respect of the applicability of Section 50 of Delhi Rent Control Act in the present case sans merit and the same are hereby rejected. RELIEF:
Accordingly, in view of the discussions, as adumbrated above, I hereby pass the following :: FINAL O R D E R ::
1. The Regular Civil Appeal of the Appellants/Defendants is hereby dismissed.
2. That impugned Judgment and decree dated 09/03/2017 is hereby confirmed.
3. No order as to costs in the present appeal. The parties shall bear their own respective costs.
4. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.RCA No. 12/2017 Page 49 of 50
Ram Phal & Ors. V. Shashi Garg & Anr.
The decree sheet in the Appeal be prepared accordingly, in terms of this Judgment.
File be consigned to record room after due compliance. Announced in the open court on this 15th Day of November, 2018.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi RCA No. 12/2017 Page 50 of 50