Delhi District Court
Shri Ram Singh vs Mahant Ram Nath Deceased Through on 19 August, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 77/06
Unique ID No. 02401C0473032002
MEMO OF PARTIES
Mehar Chand deceased through LRs.
1. Shri Ram Singh
2. Shri BhimSingh
3. Shri Chander Parkash
All sons of Late Sh. Mehar Chand
R/o A421, Kalkaji, New Delhi
...........Plaintiffs
VERSUS
Mahant Ram Nath Deceased through
His Chela Shri Surindra Nath
R/o Kalkaji Mandir Dharamsala
Timple Shri Kalkaji, New Delhi.
........Defendant
Date of institution of the Suit: 01.04.1980
Date on which judgment was reserved: 07.08.2013
Date of pronouncement of Judgment: 19.08.2013
SUIT FOR DECLARATION AND INJUNCTION
JUDGMENT
1. The plaintiff has filed the present suit seeking the following relief Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 1/21 "It is, therefore, prayed that a decree for declaration to the effect that plaintiff is owner of land measuring 1 Bigha 5 Biswas situated in Khasra No. 702/2/2, village Bahapur bearing Municipal No. 9/14B, Kalkaji Extention, Near Mandir Kalkaji, New Delhi and permanent injunction restraining the defendant, his agents, servants etc. from interfering in the possession of the plaintiff and from illegally dispossessing him from the plot No. 9/14B, Kalkaji Extention, New Delhi, be kindly passed in favour of the plaintiff and against the defendant."
2. The plaintiff's case is that the defendant/Mahant Ram Nath (since deceased) was the recorded owner of land bearing Khasra no. 702/2/2 measuring 5 bighas 16 biswas situated in village Bahapur, New Delhi. The plaintiff avers in the plaint that he is in possession of 1 bigha 5 biswas land out of the aforesaid Khasra number for the last more than 30 years openly, continuously, peaceably, without any hindrance from the defendant or anybody else and in his own rights. The plot in possession of the plaintiff bore municipal number 9/14B, Kalkaji Extension, near Temple Kalkaji, New Delhi ('the suit plot'). The plaintiff had been doing coal business at the said plot for the last more than thirty years. The plaintiff had a license from the Municipal Corporation of Delhi for doing coal business at the suit plot. The plaintiff had also been doing the business of building material at the said premises in Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 2/21 partnership with his son Sh. Ram Singh under the name and style of M/s. Gurbani Building Material Company and also had two telephone connections at the aforesaid premises. As per available record of MCD, the plaintiff had been storing coal and fuel wood in the said plot since 1958. 2.1 The plaintiff claimed that the possession of the plaintiff was adverse and hostile and he had acquired ownership rights in the said land and the right of the defendant stood extinguished by operation of law. The defendant was an influential person having means and power and malafidely and illegally the defendant wanted to dispossess the plaintiff from the suit property and with this view, the defendant had started digging foundations on the spot in the remaining area of this khasra number and also wanted to encroach upon the plaintiff's land and dig foundation in a manner which would deprive the plaintiff of the use of the plot. The defendant threatened to remove goods of the plaintiff from the spot. The entry of ownership regarding the plot in question in the name of the defendant was likely to cast clouds over the right, title and interest of the plaintiff. The defendant was requested to concede that the plaintiff was the owner of the suit land and desist from the illegal attempt to dispossess the plaintiff, but the defendant was not ready to accept the same. The plaintiff thus filed the present suit for declaration and permanent injunction.
Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 3/21
3. The defendant Mahant Ram Nath filed his written statement. The defendant averred that he was the owner of lands comprised in khasra no. 700 to 703, apart from other contiguous khasra numbers within the revenue estate of village Bahapur, New Delhi, excepting the portions which had been acquired by the government or in which there were other shareholders or land which had been recorded as that of shamlat thok. It was denied that the plaintiff was in possession of one bigha five biswas of land out of khasra no. 702 or any portion thereof or any other land of the defendant. It was denied that the plaintiff had anything to do with the land of the defendant for the last thirty years or that there was any question of his continuously, peaceably or otherwise using the same or acquiring any such rights. It was denied that any such alleged plot of land had been given any municipal number or that the same bore no. 9/14B, Kalkaji Extension, New Delhi. The site plan was denied. The defendant's case is that the plaintiff had unlawfully made a khoka (shed) in a portion of land in khasra no. 701, about 45 years ago, which was confirmed in demarcation proceedings. The said khoka measured 10' x 12' which was erected on land which had already been acquired by the government for widening the road leading from Nehru Place towards Okhla Industrial Area. The khoka or the land on which it had been constructed had never been a part of the colony known as Kalkaji Extension. Kalkaji Extension Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 4/21 colony was established by the Ministry of Rehabilitation for the resettlement of refugees. The layout plan had been sanctioned and approved and on this basis the colony came into existence. The land belonging to the defendant or any other portion of the said khasra number had not been utilized for establishing the colony. On the completion of the construction and on the basis of the layout plan, municipal numbers were given to the properties in the colony. The whole area had been a thick jungle thirty years back and there was no habitation for miles around. The plaintiff had been known to be moving around in Kalkaji area doing business in supplying coal, timber and other construction material on a very small scale, acting more or less as a rag picker. When unauthorised colonies started coming up, the plaintiff and his two sons started making small dumpings near the cremation ground of kalkaji and also raised the aforesaid khoka. The dumpings were made and khoka was raised about 45 years prior to the filing of the present suit. The defendant was not sure of the extent of his land since the whole area was uneven and hilly and proper demarcation could not be carried out. When the road from Nehru Place side to Okhla Industrial Area and Okhla crossing was established, the whole area was developed and the land was made even. On 4th March 1980, the defendant obtained proper demarcation of his lands and discovered that the plaintiff was occupying the khoka on acquired land. The Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 5/21 plaintiff was unlawfully dumping sand, badarpur rock sand, timber and coal on a portion of the land which was noted in the demarcation as belonging to the defendant and it was decided to make a boundary wall. The defendant further alleged that the plaintiff sought to tamper with revenue records in connivance with local revenue officials and after managing to obtain a false entry in khasra girdawari on 22.03.1980, the plaintiff had filed the present suit. It was alleged by the defendant that on the basis of the unlawful khoka and occasional dumpings here and there over about 100 square yards of land, the plaintiff had made the present claim but the MCD had demolished the khoka on 1st and 2nd July 1980 as the same was erected on acquired land for road widening scheme. The local commissioner's report was stated to be inaccurate and it was stated that the plaintiff's dumpings were found even outside the area claimed by the plaintiff in the site plan. The only demarcated and enclosed piece of land was underneath the khoka which was demolished. It was denied that the plaintiff was in possession of any land of the defendant, much less in adverse possession thereof. It was stated that it was only on 04.03.1980 that the defendant came to know that the dumpings were being made on his land occasionally and it was confirmed that the khoka was on acquired land with which the defendant had no concern. On the said date, the defendant sought to enclose his land with a boundary wall and it was Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 6/21 contended by the defendant that it was only on this date that the defendant came to know of the extent and boundaries of his land. It was prayed that the suit be dismissed.
4. In the replication, the plaintiff denied the allegations raised by the defendant in the written statement, denying particularly that land in possession of the plaintiff had been acquired for the road widening process or that khoka of the plaintiff had been demolished. It was also denied that the defendant came to know about the possession of the plaintiff only on 04.03.1980 and it was claimed that the defendant had the knowledge from the beginning about the possession of the plaintiff but as the land had no value at the time therefore the defendant took no objection to the occupation of the same by the plaintiff. The averments made in the plaint were reiterated.
5. At this juncture, it may be mentioned that the plaintiff was directed to amend the plaint to show the proper valuation of the suit for the purpose of court fees and jurisdiction vide order dated 19.01.1982, and accordingly, an amended plaint came to be filed by the plaintiff and deficient court fees was also furnished on 03.02.82. The defendant did not file a fresh written statement to the amended plaint, apparently adopting the written statement already filed.
6. During the course of the suit proceedings, the plaintiff and the Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 7/21 defendant have both expired and their legal representatives have been brought on record.
7. On 23.03.1981, the following issues were framed:
1. Whether the plaintiff is in adverse possession of one bigha five biswas of land bearing khasra no. 702/2/2 for the last more than 30 years, If so, to what effect? OPP
2. Whether the piece of land in possession of the plaintiff bears Municipal No. 9/14B, Kalka Ji Extension, New Delhi?
3. Relief.
8. The plaintiff has examined in all six witnesses, himself as PW1, Sh. Khem Chand as PW2, Sh. S.S. Mahto (Estate Officer, Land and Development Office) as PW3, Sh. Bhim Singh as PW4, Sh. N.K. Shangle as PW5 and Sh. Chhatra Pal Singh, Kanoongo, Tehsil Hauz Khaz, Mehrauli as PW6. PW6 was examined in evidence on 19.12.11 upon the application of the plaintiff seeking to exhibit the khasra girdawaris being allowed. On the other hand, the legal representative/chela of the deceased defendant namely Sh. Surinder Nath examined himself as DW1 and thereafter closed evidence in defence.
9. Final arguments were addressed by Ld. counsel for the plaintiff. Oral arguments were not addressed on behalf of the defendant however written arguments were filed. I have heard the arguments addressed by Ld. counsel Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 8/21 for the plaintiff and perused the written arguments filed on behalf of the defendant. My issue wise findings are as under:
Issues no. 1 and 2 (1) Whether the plaintiff is in adverse possession of one bigha five biswas of land bearing khasra no. 702/2/2 for the last more than 30 years, If so, to what effect? OPP and (2) Whether the piece of land in possession of the plaintiff bears Municipal No. 9/14B, Kalka Ji Extension, New Delhi?
10. As per the defendant's claim, the plaintiff had made a Khokha in a portion of land in Khasra No. 701 about 45 years prior to filing of the present suit, and it was averred that this was confirmed in demarcation proceedings; furthger the Khokha measuring 10" x 12" was erected on land already acquired by the Government for widening of the road.
11. Regarding the possession of plaintiff of 1 Bigha 5 Biswas of land bearing Khasra No. 702/2/2, the plaintiff/PW1 deposed in his evidence that he was doing business at Kalkaji in plot no. 9/14B bearing Khasra No. 702/2/2 which was 1 ¼ bighas. The plaintiff, at the stage of final arguments, pursuant to his application U/s 151 CPC being allowed, examined PW6 Sh. Chhatra Pal Singh, Kanoongo Record Room, Tehisl Hauz Khas, Mehrauli, New Delhi who brought the Khasra Girdawari records for the years 1978 1998 which were exhibited as Ex. PW6/1 (colly) to Ex. PW6/5. The English translations thereof have been filed by the plaintiff but not exhibited however Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 9/21 it is not disputed by the defendant that in these Khasra Girdawaris, Sh. Mehar Chand (plaintiff) is shown in occupation of 1 Bigha 5 Biswas in Khasra No. 702/2/2, as is clear from a perusal of the written arguments filed by the defendant(refer: para 15 of the written arguments). The defendant's contention is that these were fabricated entries and has attempted to list discrepancies in the entries of the Khasra Girdawaris, however the defendant did not put any suggestion to PW6 that the record produced by him was false or fabricated. Further, there is a presumption of correctness of the revenue records which can be rebutted only upon cogent evidence in this regard being produced by the party alleging the fabrication/manipulation and a mere allegation in this regard does not suffice. Thus, admittedly, the revenue records i.e. Khasra Girdawaris Ex. PW6/1 to Ex. PW6/5 show the plaintiff in possession of 1 Bigha 5 Biswas of Khasra No. 702/2/2, albeit in the capacity of 'Gair Marusi' which means 'tenant at will'. This factor, of course, shall be relevant while discussing the question of plaintiff's ownership by adverse possession.
12. The defendant on the other hand, did not file any site plan of the property in dispute. The plaintiff/PW1 in crossexamination admitted the suggestion that the defendant Sh. Ram Nath had demarcated the land in 1980 when Patwari came there but the defendant did not confront the plaintiff with any demarcation report. Defendant did not adduce in evidence nor call Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 10/21 for the purported demarcation report though DW1/Sh. Mahant Surender Nath in his examination in chief deposed that the original defendant Late. Mahant Ram Nath had got the land demarcated in March, 1980 as plaintiff had been dumping some material on the defendant's land. In the circumstances, an adverse inference must be drawn against the defendant for not producing any such demarcation report that it would not have been favourable to the defendant's case.
13. It is noteworthy that the plaintiff had sought appointment of a Local Commissioner for ascertaining whether the land in possession of the plaintiff fell in Khasra No. 701 or 702/2/2 at the stage of final arguments which was allowed vide order dated 28.05.2001. The Tehsildar Mehrauli was directed to submit a report in this regard after giving notice to the parties. The report ( in slightly torn condition) is on the record wherein the Tehsildar has stated that the plaintiff's property lies in Khasra No. 702/2/2; rough map has also been annexed along with report. Ld. counsel for the plaintiff argued that no objections to the same were filed therefore being a part of the record, the same could be read in evidence. In the written arguments, defendant submits that the report came to be filed on a day when the Ld. Presiding Officer of the court was on leave and defendant had no notice of the same, it was only at the time of inspection of the file that the defendant came to know Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 11/21 about the same and thus objections could not be filed. The perusal of the record shows that on the date the report was filed i.e. 19.02.2002 the defendant was in fact present in person as per the presence noted and the argument that defendant had no notice of the same is a blatantly sham argument and afterthought. However, it is correct that nothing is mentioned in this report regarding giving of notice to the parties. Even if on the ground that no prior notice was given to the parties before the demarcation was done, this report is discarded, the fact of the matter remains that the plaintiff vide the record of Khasra Girdawari produced and exhibited by PW6 has proved that he is in possession of 1 Bigha 5 Biswas of Khasra no. 702/2/2. The defendant has produced absolutely no documentary evidence to prove his allegation that the plaintiff was in possession of portion of land falling in Khasra no. 701. In crossexamination, DW1 deposed that he was currently the bhoomidhar/owner of the land i.e. Khasra No. 702/2/2, village Bahapur, Delhi and that the demarcation of this Khasra number was got done in his presence but he had not brought the same. He testified that the same may be on the record. Admittedly, no such report was filed by the defendant. The defendant also did not choose to file any lay out plan of the area. The plaintiff has successfully discharged the onus of proving that he is in possession of 1 Bigha 5 Biswas of land in Khasra No. 702/2/2, village Bahpur, Delhi.
Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 12/21
14. Regarding the number of the property being 9/14B, Kalkaji Extension, the plaintiff's witness PW2 Sh Khem Chand deposed that he was posted as Zonal Superintendent South Zone in the year 1966 and exhibited and proved Ex. PW2/A i.e. communication dated 31.05.1966 by him to the plaintiff and deposed that the same was written in discharge of his official duties and also signed by him wherein it was certified by PW2 that the plaintiff had been storing coal and fuel woods on the said plot bearing no. 9/14B, Kalkaji Extension since 1958 as per the record available. Though in cross examination PW2 deposed that the file relevant to this letter Ex. PW2/A would be in the office, the defendant did not seek production of the same and neither was any suggestion put to this witness that the letter Ex. PW2/A was a fabricated/manipulated document. Further, the plaintiff filed his site plan Ex. PW1/A wherein the suit land is referred to as 9/14B, Kalkaji Extension.
15. Interestingly, DW1 at one place in during his crossexamination deposed thus " There is no municipal number 9/14B, Kalkaji Extension. Vol, on this Khasra No.", meaning thereby that as per DW1, it was not as if municipal number 9/14B Kalkaji Extension did not exist, but that it did not exist on Khasra No. 702/2/2. The plaintiff through his site plan Ex. PW1/A, report of the Local Commissioner Ex. PW5/A as well as the site plan filed by him i.e. Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 13/21 Ex. PW5/C and the letter Ex. PW2/A certifying that the plaintiff had been storing coal and fuel wood at 9/14B Kalkaji Extension has proved that the suit land in his possession is plot no. 9/14B, Kalkaji Extension situated in Khasra No. 702/2/2. The defendant has produced no document evidence at all in support of his claim that the plaintiff was in possession of a Khokha on portion of Khasra No. 701. The Khasra Girdawaris Ex. PW6/1 to Ex. PW6/5 show that the plaintiff is in possession of the 1 Bigha 5 Biswas of land out of Khasra No. 702/2/2 and not Khasra No. 701. If, as per defendant, the entries in the revenue records were wrongly recorded, he should have taken steps to get the same rectified but defendant nowhere pleads that such steps were ever taken. Further, the defendant had contended that the 'Khokha' which st nd was in the plaintiff's possession was demolished by the MCD on 1 and 2 July, 1980 as the same was erected on acquired land for road widening scheme, however in evidence DW1 testified that the Khokha/semi pakka structure of the plaintiff was in existence even as on the date of his evidence (13.09.2000) and that out of Khasra No. 700 to 703, some land was acquired by the Union of India however he did not known the exact area which had been acquired. The earlier order sheets in this case show that on one occasion i.e. on 10.04.2003, ld. counsel for plaintiff had submitted that he had filed a writ petition since the government was constructing a flyover over Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 14/21 the land in the suit property and during the course of the final arguments Ld. counsel for plaintiff stated that the plaintiff had been successful in the writ petition proceedings. Though neither party has filed the documents regarding which portions had been acquired however needless to say, the present judgment would not in any manner affect any land acquisition proceedings or any directions passed in the writ petition pertaining to the suit land. PW4 Sh. Bhim Sen, testified that he knew the plaintiff since 196465 and that the plaintifff had been residing on the plot in dispute and had been having his coal depot and storing building material thereon. PW4 further deposed that he had not seen anyone else in possession of any portion of the plot since then. Nothing useful to the case of the defendant was brought out in cross examination of his witness whose testimony supports the plaintiff's case of being in settled possession. The plaintiff has proved his possession of the suit land since the year 1958, therefore the defendant's act as per his own admission in the written statement, of seeking to enclose his land by a boundary wall, which obviously would have interfered with the plaintiff's possession of the suit property, instead of approaching the court for appropriate relief against the plaintiff, was illegal. Plaintiff's possession of the suit land would, of course, require to be protected. However, mere long user or long possession of the suit land is not enough to establish the plaintiff's Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 15/21 claim of adverse possession. The plaintiff claims to be in adverse possession of 1 Bigha 5 Biswas of land bearing Khasra No. 702/2/2 for the last more than 30 years (at the time of filing of the suit).
16. In Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779, in relation to the concept of adverse possession it was observed by the Hon'ble Supreme Court as follows 'In the eyes 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 would not 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 well settled principle that a party claiming adverse possession must prove that his possession is nec vi, nec clam, nec precario i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is hostile 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"
It was further observed that a person who claim adverse possession should show Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 16/21
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
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. Further, in S.M. Karim Vs. Bibi Sakina AIR 1964 SC 1254, it was held that adverse possession must be adequate in continuity in publicity and extent and a plea is required to show when the possession became adverse so that a starting point of limitation against the party affected can be found.
17. Perusal of the plaint in the present case reveals that the plaintiff has merely stated that he has been in possession of the suit property for the last more than 30 years, neither has the date when the plaintiff came into possession been pleaded, nor has the date when the possession of plaintiff purportedly became adverse been given. The material dates not being pleaded and proved, the starting point of limitation for the plea of adverse possession as set up by the plaintiff cannot be ascertained. On this very ground, the claim of declaration of adverse possession of the plaintiff merits Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 17/21 dismissal. Even on merits, plaintiff has not proved that his possession of the suit land was open and hostile and such hostile possession was within the knowledge of the defendant. The plaintiff admits the original defendant to be the recorded owner of the suit property but has nowhere pleaded or proved that he had made known the factum of his adverse possession of the suit property to the defendant or that his adverse possession of the same was so notorious that defendant must be imputed with the knowledge thereof. In fact, as already observed, Ex. PW6/1 to Ex. PW6/5 Khasra Girdawaris show the plaintiff as being 'Gair Mausi' (tenant at will) which in itself belies the plaintiff's claim of open and hostile possession. In fact the plaintiff filed the present suit only when the defendant sought to exercise his right of ownership over the suit land, by digging foundation nearby the suit property in the remaining area of the said Khasra where the suit property was situated. Further, defendant in the written submissions has correctly pointed out the testimony of PW3 Sh. S.S. Mahto who produced Ex. PW3/A i.e. notice U/s 57 of the Public Premises Eviction of Unauthorized Occupants Act, 1958 of the Estate Officer dated 30.07.1969 pertaining to Public Premises, measuring 67'x60' situated at Kalkaji bounded by road on the north, service road and bungalow no. 9/14 on the south, and Government land on east and west. PW3 produced Ex. PW3/D i.e. the letter/ order dated 12.06.1972 issued by Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 18/21 the Estate Officer requiring the plaintiff to show cause as to why he should not pay damages for unauthorized use and occupation of the land described as above (i.e. the suit land) which matches the description provided by the plaintiff in the site plan Ex. PW1/A and Ex. PW3/B is the letter dated 20.07.1972 written to the Land and Development Officer by the plaintiff in response to Ex. PW3/D wherein the plaintiff stated that he was prepared to st pay Rs. 73/47 p. 1 installment according to the order of the Land and Development Office and requested for issuance of challan of deposition
18. Though in Ex. PW3/C dated 20.08.1965, the plaintiff had contended that the land had been allotted to displaced persons and he was not liable to pay damages however in Ex. PW3/B, there was no such averment and the plaintiff made it quite clear that he was going to obediently comply with the demand of damages. The plaintiff apparently raised no objection before the estate officer/land and building office that he was owner of the suit land by way of adverse possession. Further, PW3 deposed in crossexamination that no appeal had been filed by the plaintiff against the order of damages all of which goes to show that the plaintiff atleast till the year 1972 remained in the suit land as an unauthorized occupant and there was no assertion of open and hostile possession and title by the plaintiff. A bald averment by the plaintiff/ PW1 that he had been in continuous possession of the plot for the Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 19/21 last 25 30 years openly and adversely will not do; specific acts establishing the adverse possession are to be proved which plaintiff has failed to do. Even PW4 Sh. Bhim Sen only deposed that the plaintiff had been residing on the plot in dispute and further that he had not seen anybody else in possession of th any portion of the plot since 196465 which does not aid the case of the plaintiff since nothing regarding assertion of open and hostile title is brought out in the testimony of this witness and only the plaintiff's possession of the suit land since the year 196465 has been established through PW4. The plaintiff has been unable to establish that he is in adverse possession of the suit property.
19. In view of the aforesaid discussion, issue no. 1 is decided against the plaintiff and while plaintiff has proved that he is in settled possession of the suit property i.e. land measuring 1 Bigha 5 Biswas out o fKhasra No. 702/2/2 village Bahapur having plot not 9/14B, Kalkaji Extension, he has not proved that he is in adverse possession thereof. Issue no. 2 is decided in favour of the plaintiff.
Issue No. 3 Relief.
20. Now, it is wellsettled that a person in settled possession, even if he be a trespasser, is entitled to permanent injunction, restraining even the true owner from taking forcibly the land in his possession. Reliance has rightly Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 20/21 been placed by ld. counsel for plaintiff in this regard on Rame Gowda (D) by LRs. Vs. M. Varadappa Naidu (D) by LRs. And Anr. (2004) 1 SCC 769 wherein it was so held by Hon'ble Supreme Court of India.
21. The plaintiff has not proved that he is owner by adverse possession of the suit land i.e. 1 Bigha and 5 Biswas out of Khasra No. 702/2/2 Plot bearing no. 9/14B, Village Bahapur however he has proved that he is in settled possession of the suit property. Therefore, the suit of the plaintiff is partly decreed for relief of permanent injunction restraining the defendant/his agents etc. from interfering in the plaintiff's possession or dispossessing the plaintiff from the suit property i.e. plot no. 9/14B, Kalkaji Extension as shown in the site plan Ex. PW1/A without due process of law. The plaintiff is not entitled to the relief of declaration that he is owner by adverse possession of land measuring 1 Bigha and 5 Biswas situated in Khasra No. 702/2/2, village Bahapur, bearing municipal no. 9/14B, Kalkaji Extension near Mandir Kalkaji, which relief is declined. Parties to bear their own costs.
22. Decree sheet be prepared accordingly.
23. File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 19.08.2013 Civil Judge - 17 (Central)
19.08.2013
Suit No. 77/06 Sh. Mehar Chand Vs. Mahant Ram Nath 21/21