Delhi District Court
Trilok Chand Tyagi vs The Commissioner on 18 August, 2008
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IN THE COURT OF S.S.HANDA ADDL. DISTRICT JUDGE
DELHI
RCA No.22/1999
Old RCA NO.21/1996
In the matter of
1. Trilok Chand Tyagi,
S/o Late Murari Lal,
2. Sanjay Kumar (Since deceased)
through its legal heirs.
2-A Smt. Alka, W/o Late Sanjay Kumar
2-B Baby Anju Tyagi
2-C Master Anmol Tyagi.
3. Amin Kumar
S/o Trilok Chand Tyagi
All residents of
179A/1, Block -B,
Jhilmil Tahirpur, Delhi
...Appellants
Vs.
The Commissioner
Municipal Corporation of Delhi
Town Hall, Delhi-110006
...Respondent
Date of institution : 24.12.1996
Date of arguments : 18.08.2008
Date of Decision : 18.08.2008
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Present: Sh. K.K.Sharma, Ld. Counsel for
the appellant.
Sh. Dharmvir Gupta, Ld. Counsel
for respondent.
JUDGMENT
The plaintiff/appellant instituted the civil suit on 02.04.1987 for a decree of permanent prohibitory injunction; as amended to, restraining the defendants/respondents interfering his possession of the suit land i.e. measuring 200 sq. yds. plot no.179-A/1 (Khasra No.729/2005) village Jhilmil, Tahirpur; Dilsahad Garden; Shahdara, Delhi (in short suit plot).
2. Precisely the case of the plaintiff/appellant is that he had occupied forcibly land measuring 200 sq. yds in the year 1975 while the defendant raised boundary wall around the MCD colony, Dilshad Garden (Shahdara), Delhi. He has been running milk dairy thereon and claiming hostile title and adverse possession ever since 1970 over the said plot. Thus the first plea raised by the :3: plaintiff was that he was owner of the 'suit plot' by way of adverse possession. At the same time, he has set up the second plea to the effect that he had purchased the 'said plot' from one Sh. Raja Ram Sharma; the attorney of original owner Sh. Prabhut Nath vide General Power of Attorney, agreement to sell and receipt etc. As the defendant had threatened to dispossess him from the suit plot on 31.03.1987; he instituted the present suit.
3. The suit was contested by the defendant/respondent MCD with the preliminary objection that the 'suit plot' is owned by the defendant/MCD. The plaintiff to his own admission forcibly occupied the suit land; otherwise he had no right, title or interest therein. It was denied that he was owner of the 'suit plot' by way of adverse possession. It was also denied that the title of the 'suit plot' vested in him by way of documents allegedly executed by said Sh. Raja Ram in his favour.
4. Ld. Trial Court vide order dated 07.08.10987 framed the following issues for :4: trial:
(i) Whether the plaintiff has become owner by adverse possession alleged in the plaint?OPD.
(ii) Whether the plaintiff is in possession under agreement to sell and power of attorney dated 27.02.1987? If so, to what effect?OPP
(iii) Whether the plaintiff has any cause of to file the suit?OPP
(iv) Relief.
5. Vide order dated 16.01.1990 after the amendment of the plaint two additional issues were framed as below:
(i) What is the effect of GPA dated 27.02.1987 executed by Raja Ram in favour of plaintiff? OPP
(ii) Whether the MCD has any concern over the suit land/property?OPD.
6. To prove his case, the plaintiff examined himself as PW-1. He also examined PW- 2 Sh. Shiv Nath Sharma, a neighbourer. PW-1 :5: relied upon the documents Ex. PW1 to PW6. For the defendant, Sh. Kirpal Singh, MTI, Shahdara, MCD was examined as DW-1. The defendant relied upon DW1/1 the survey report.
7. The Ld. Trial Court vide impugned judgment/decree dated 23.11.1996 dismissed the suit of the plaintiff as issue no.1 to 3 and additional issue no.1 & 2 were answered against the plaintiff.
8. Ld. Trial Court held that the plea set up by the plaintiff of being owner of the said plot by way of adverse possession was untenable. It was further held by the Ld. Trial Court no right, title or interest in suit plot vested in the plaintiff by way of documents tendered by the plaintiff. Ld. Trial Court concluded that 'suit plot' was owned by the defendant/MCD.
9. The impugned judgment/decree has been assailed concisely on the ground that it is against the law and facts. It was further stated that the Ld. Trial Court did not appreciate the evidence on record and thus :6: findings rendered were erroneous. For the respondent, it was stated that the impugned judgment/decree was rendered due appreciation of evidence and there was no illegality therein.
10. No case law was referred or relied upon by the either of the counsel.
11. As recorded above, only two vital points for consideration were raised. As to whether the appellant became the owner of the suit land by way of adverse possession. Secondly as to whether vide documents referred to above the suit plot vested in the appellant.
(ii) On the above counts, PW-1/appellant testified that he was absolute owner of suit property having forcibly occupied the same in the year 1970. He has been running dairy upon the suit plot since 1970. He has always been holding possession adverse to everybody. He became absolute owner of the property by adverse possession after 12 years. He further deposed that in order to avoid litigation he settled with the original owner Sh. Parbhut :7: Nath and purchased the suit land from Sh. Raja Ram Sharma through agreement to sell and GPA duly executed by Sh. Raja Ram, Attorney of original owner Sh. Parbhut Nath after paying consideration of Rs.40,000/-. (Emphasis supplied). He proved copy of receipt as Ex.P1, agreement for sale as Ex.P2 and copy of GPA as Ex.P3. He also proved Ex.P5 being zamabandi concerning the suit plot which bears the name of Sh. Parbhut Nath as owner of Khasra No.729/5, Jhilmil, Tahirpur, Delhi. He also proved copy of site plan Ex.6. He further deposed that defendant has built boundary wall around the colony. But suit land is beyond the boundary wall of the corporation. On 31.03.1987 Zonal Health Officer of the Corporation had threatened to dispossess the appellant/plaintiff from the suit land being tress-passer, hence he filed the present suit.
(iii) PW-2 deposed that he had seen appellant in possession of the suit plot since 1975 because he was working as Manager in M/s. Argup Mattle Corporation, 19/20 Khilmil Tahirpur which is adjacent to suit plot. He further deposed that on the back of plot of :8: plaintiff there are MCD quarters. There is an intervening boundary wall which separate the suit plot from the quarters. The plaintiff purchased the land from its original owner Sh. Parbhut Nath through General Power of Attorney.
(iv) Both PW-1 & 2; were not cross examined by the respondent.
Contrary to this for the defendant/MCD, DW1 Sh. Kirpal Singh deposed that suit plot belonged to Municipal Corporation of Delhi. The Municipal
Corporation of Delhi has raised boundary wall on three sides and one side has open space adjoining flat No.35 & 36, Dilshad Garden, Municipal Quarter Delhi. The plaintiff had encroached upon a MCD land by way of erecting and running dairy without having any licence under section 417 of DMC Act. There is MCD board on land and plaintiff has no right on the suit plot whatsoever. He proved report and site plan prepared by Land and Estate Department and ZA © Shahdra, copy of the same as Ex.DW1/1. In cross-examination he could not tell if there was any boundary wall around the :9: colony of MCD quarters. The MCD board installed about 1 or 2 paces away from the disputed land. There are MCD quarters built in a row.
12. The appellant has to prove his case of his own. He admittedly has forcibly occupied the suit land in 1970 and is in occupation of the same since then. But a person can be said to be in adverse possession of immovable property only when he was able to prove that he claimed adverse possession against the true owner openly. In other words the fact of adverse51 possession must be known to and in knowledge of original owner of the immovable property. It is now well-settled that possession does not become hostile till there is an assertion of the same to the knowledge of its owner. Moreover, the person who claims title to the property on the basis of adverse possession must show specifically that his possession was hostile to the real owner and amounted to denial of his title to the property. Surprisingly enough in the present case the appellant has failed to substantiate that the fact of his adverse possession in the :10: suit land was in the knowledge of real owner Sh. Prabhut Nath. There is not a single word about this even in the plaint or in the deposition of PW-1. Besides this the appellant has failed to implead real owner Sh. Prabhut Nath as one of the defendants. Moreover, the appellant stated in Para 1 of the plaint that he was in possession for the suit plot since 1975 and he got the documents executed from Mr. Prabhut Nath on 27.02.1987. Thus there was no worthwhile evidence to prove that the appellant became owner of the suit plot through Sh. Prabhut Nath; against the respondent by way of adverse possession.
13. Secondly, it has come in evidence of PW's that the appellant had purchased the suit plot by way of agreement to sell from one Sh. Raja Ram Sharma, Attorney of real owner Sh. Prabhut Nath on 27.02.1987. Appellant has been claiming absolute ownership with regard to suit plot on the basis of these documents executed by Raja Ram. The judicial pronouncements have settled the position that no one can pass a better title than he himself possesses. Admittedly, Sh. Raja Ram was not the owner of :11: the suit plot, it is Sh. Prabuth Nath who is stated to be the real owner. Admittedly, appellant had not purchased the suit plot from the original owner i.e. Sh. Prabuth Nath. When Sh. Raja Ram was not owner of the suit plot; he could not be said to have passed better title in favour appellant than he himself had. Consequently the documents namely agreement to sell, General Power of Attorney & receipt dated 27.02.1987 allegedly executed by Sh. Raja Ram do not confer any right, title or interest upon the appellant.
14. For grant of a decree of prepetual injunction as envisaged u/s 38 of The Specific Relief Act 1963; the appellant has to establish that he has justiciable right to be protected in the 'suit plot'. If a person asserts that he can be dispossed only through due process of law he must show that he has a justiciable right under law to remain in its possession. Plaintiff must show he has a legal right and there is invasion of such right. In Rajinder Kakkar V/s Delhi Development Authority 54 (1994) DLT 484 it was held 'where a person is an encroacher and never had any right to legal :12: possession of public land, the court should not grant any injunction or relief which have the result of permitting or protecting the continued illegal occupation of public land'.
15. Lastly deposition of DW1 and report site plan proved as Ex.DW1/1 prepared in due course of business inspires confidence. The verification of the land by the Municipal Corporation of Delhi Department established that the suit plot is owned by Municipal Corporation of Delhi as the plaintiff could not shatter the surveyor report Ex. DW1/1 and could not establish his ownership or justiciable right over the suit plot.
16. No other point is urged/raised before me for consideration.
17. As a result of my above discussion; no infirmity is found factually or legally to interfere with the impugned judgment/decree. And accordingly the impugned judgment/decree is :13: upheld whereas the appeal is hereby dismissed. In the facts and circumstances herein, no order as to costs.
18. TCR be sent to the Ld. Trial Court alongwith copy of the order.
Appellate court file be consigned to Record Room.
DICTATED & ANNOUNCED IN THE OPEN COURT (S.S.HANDA) on THIS 18H DAY OF AUGUST, 2008 ADDL. DISTRICT JUDGE DELHI