Delhi District Court
Sh. Suresh Arya (Deceased) vs Sh. Jagjit Singh Sawhney on 3 May, 2018
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR, ADDITIONAL
DISTRICT JUDGE-04, CENTRAL, TIS HAZARI COURTS, DELHI
RCA No. 61946/16
1. SH. SURESH ARYA (DECEASED)
THROUGH HIS LRS
i) SH. GAURAV ARYA (SON)
S/O LATE SH. SURESH ARYA
R/O SD-446, PITAMPURA
NEW DELHI-110088
ii) SMT. ASHA ARYA (WIDOW)
WD/O LATE SH. SURESH ARYA
R/O LD-52, PITAMPURA
NEW DELHI-110088
iii)MS. SHELLY SETH (DAUGHTER)
D/O LATE SH. SURESH ARYA
R/O BH-741 (EAST), SHALIMAR BAGH
NEW DELHI ......Appellants
Versus
1. SH. JAGJIT SINGH SAWHNEY
S/O LATE SH. RAM SINGH SAWHNEY
C/O GURU FINANCE COMPANY
PLAZA CINEMA, CONNAUGHT PLACE
NEW DELHI-110001 (SINCE DECEASED THROUGH LRs)
i) SH. KAMALJEET SINGH SAWHNEY
S/O LATE SH. JAGJEET SINGH SAWHNEY
R/O D-1803, PRATEEK STYLOME, SECTOR-45
NOIDA-201301
ii) CHIRANJEEV SAWHNEY
W/O SH. INDERPAL SINGH SAWHNEY
R/O C-13, SECTOR-26, NOIDA-201301
iii)GUNJEEV KALRA
W/O SH. JATENDER KALRA
R/O C-BLOCK, 173 GAUR CITY, AVENUE-1
SECTOR-4, GREATER NOIDA WEST-201308
2. SMT. NEETA SAWHNEY
W/O LATE SH. GURU CHARAN SINGH SAWHNEY
3. SH. VIRENDER SINGH SAWHNEY
S/O LATE SH. GURU CHARAN SINGH SAWHNEY
4. MS. JASLEEN
D/O LATE SH. GURU CHARAN SINGH SAWHNEY
ALL R/O M-120, GREATER KAILASH
PART-II, NEW DELHI-110048 ......Respondents
Date of Institution : 18.10.2016 Date of Judgment reserved on : 03.05.2018 Date of Judgment : 03.05.2018
APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 21.07.2016 PASSED IN SUIT NO. 12516/2016 TITLED AS "JAGJIT SINGH SAWHNEY & ORS. VS. SURESH ARYA" BY LD. CIVIL JUDGE-07, WEST DISTRICT, TIS HAZARI COURTS, DELHI, WHEREBY THE SUIT FOR POSSESSION, MESNE PROFIT / DAMAGES HAS BEEN DECREED AGAINST THE APPELLANT HEREIN.
O R D E R/J U D G M E N T
1. The present order shall decide appeal filed under section 96 of CPC, 1908 against judgment dated 21.07.2016 arises from Civil Suit No. 12516/2016 from Ld. Civil Judge, West District.
2. It is submitted by the defendant/appellant that as per his own averments of the respondent/plaintiff they came to know only in the month of May, 2000 about illegal and unauthorised possession of the defendants on receipt of summons in Suit No.140/2000. It is admitted by the respondent that the defendant is in illegal and unauthorised possession of the suit property no. XII/2452-56, Basti Punjabian, Roshanara Road, Subzi Mandi, Delhi -110007. The suit property came in possession of the respondents vide registered partition deed dated 01.2.1992 and the name of the plaintiff is mutated in Municipal record of Delhi.
3. It is submitted by the appellant that Section 3 of the Limitation Act, 1963 read with Section 27 and Article 65 of Limitation Act the period of 12 years is applicable to reclaim back the suit property by the respondent. The Predecessor of the appellant came in the year 1972 whose interest was adverse. The respondents have purchased the suit property in the year 1982. The property was purchased vide registered sale certificate dated 18.11.1972 and 16.11.1972. According to the appellant the suit was filed on 01.6.2001. The possession of the appellant is peaceful, open and continuous during the entire period. The suit property was used for commercial purpose which is proved vide registration from Sales Tax Department and returns filed for the assessment years proved on record vide Ex.DW1/4 to ExDW1/6. PW- 1 has proved that she was aware that her husband was one of the co-owner of the suit property right from the year 1972 and she herself has acquired right in the suit property after death of her husband in the year, 1983. Therefore the suit of the respondents is barred by limitation. Admission is the best piece of evidence.
4. In reply it is submitted by the respondents that the suit property is mutated in municipal record in the name of the respondent vide mutation certificate Ex.PW5/B. A legal notice dated 2.1.2000 vide ExPW1/1 was issued to the appellant to restore the suit premises. However, the name of the appellant is reflected in survey report of MCD dated 26.11.1999 vide ExPW5/C which was not there in survey report of MCD dated 07.10.94 vide ExPW5/A. PW-4 from MCD has proved mutation certificate ExPW1/4 and survey report as ExPW4/1 and ExPW4/2. The registered partnership deed is ExPW2/3. Sale certificates are Ex.PW2/1 and ExPW2/2. It is submitted that long possession even for 50 years does not prove adverse possession. The appellant has failed to prove the hostile possession against the respondent.
5. Parties heard and record perused.
6. Ld. Counsel for appellant has relied upon the following judgments:-
(i) Collector Land Acquisition v. Mst. Katiji and Ors. AIR 1987 SC 1353
(ii) N. Balakrishanan v. M. Krishnamurthy AIR 1998 SC 3222
(iii) Kshitish Chandra Bose v. Commissioner of Rachi AIR 1981 SC 707
(iv) Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors. (2004) 10 SCC 65
(v) Karnataka Board of Waqf v. Govt. of India and Ors. (2004) 10 SCC 779
(vi) P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. AIR 2007 Supreme Court 1753
(vii) Desraj and Ors. v. Bhagat Ram and Ors. (2007) 9 SCC 641
(viii) Satyavati Ramprasad Ruia v. New India Assurance Co. Ltd. VI (2017) SLT 495
(ix) J. Balaji Singh v. Diwakar Cole & Ors. IV (2017) SLT 364
7. Ld. Counsel for respondent has relied upon the following judgments:-
(i) P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. AIR 2007 Supreme Court 1753
(ii) Saroop Singh v. Banto and Ors. (2005) 8 Supreme Court Cases 330
(iii) State of Haryana v. Mukesh Kumar and Ors. (2011) 10 Supreme Court Cases 404
8. In para no.3 of the written statement it is pleaded by the appellant/defendants that they are in possession of the suit premises for last more than 40 years and by way of adverse possession they have become the owners of the suit premises.
9. The ownership of the respondents is hence is not disputed under issue no.1. Ld. Trial Court has held that mere possession for long time does not mean that it is adverse against the true owner. The classical requirement is denial of title of true owner is to be satisfied. If the appellants herein are not sure that who are true owners then their possession cannot be declared hostile.
10. In the present case there is no dispute to the fact that the suit property came in the share of respondents herein vide registered partnership deed dated 01.2.1982. Hence before the partition neither the appellant could know nor the respondents could know that which particular share in the suit property will belong to the respondents only. Respondents were in joint possession. Hence, the respondents are co-owner from 18.11.1972 till 01.02.1982. From 01.02.1982 the respondents have become the owner of the suit property. It is settled law that even a co-owner can file suit for eviction against a trespasser. Therefore the effective possession of the respondents has to be seen from 18.11.1972 and 16.11.1972.
11. However, earlier to the sale certificate issued vide Ex.PW2/1 and Ex.PW2/2 on the suit property by the Assistant Custodian u/sec. 20 of Displaced Persons (Compensation and Rehabilitation) Act, 1954 the possession and ownership therefore vested in the Competent Authority. The present suit was filed on 01.06.2001. the defendant in his written statement has pleaded at para no. 3 on reply on merits that he is in possession of suit premises for last more than 40 years. Thereby the possession as claimed adverse by the appellant must have been pleaded against Competent Authority issuing certificate of sale u/sec. of 20 of Displaced Persons (Compensation and Rehabilitation) Act, 1954. The period of limitation for claiming adverse possession against the competent authority being Government is 30 years and more under Article 111 of Limitation Act, 1963. The appellant has pleaded adverse possession only against the respondent and not against the competent authority of the Government. The appellant has neither pleaded the date, month or year of coming into his adverse possession against the respondent or the Competent Authority. The same is mandatory requirement to be so pleaded under Rule 4 of Order VI CPC in absence of which there is no material pleading with the appellant against the respondent herein and therefore the appellant is not in a position to lead evidence on the said aspect. It is settled law that no amount of evidence can be lead by the party in absence of specific pleading thereto when the pleading are material to the case. The concept of adverse possession is laid down in citation titled Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors. AIR 2009 SC 103 at relevant para no. 13 and 15 to 22 which are reproduced as under:
13. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, while following the ratio of Debendra Lal Khan's case (supra), ob-
served as under:
"But it is well settled that in order to establish adverse possession of non-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the proper- ties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the proper- ties it is presumed to be one the basis of joint title. The co-heir in pos- session cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile ti- tle, coupled with exclusive possession and enjoyment by one of them to be knowledge of the other so as to constitute ouster."
The court further observed thus:
"The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession." In S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Hidayatullah, J. speaking for the court observed as under:-
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession be- comes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession be- came adverse, if it at all did and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
15. The facts of R. Chandevarappa & Others v. State of Karnataka & Others (1995) 6 SCC 309 are similar to the case at hand. In this case, this court observed as under:-
"The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in posses- sion from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."
16. In D. N. Venkatarayappa and Another v. State of Karnataka and Others (1997) 7 SCC 567 this court observed as under:-
"Therefore, in the absence of crucial pleadings, which constitute ad- verse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."
17. In Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Others (2004) 1 SCC 271, paras 21-22, this Court observed as under:
"21. For the purpose of proving adverse possession/ouster, the defen- dant must also prove animus possidendi.
22 "We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumula- tive effect of the averments made therein."
18. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this court observed as under:- "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. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another per- son takes possession of the property and asserts a right over it. Ad- verse possession is a hostile possession by clearly asserting hostile ti- tle 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", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in ex- tent 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, visi- ble, exclusive, hostile and continued over the statutory period." The court further observed that 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.
19. In Saroop Singh v. Banto (2005) 8 SCC 330 this Court observed:
"29. In terms of Article 65 the starting point of limitation does not com- mence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes ad- verse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376)
30. `Animus possidendi' is one of the ingredients of adverse posses-
sion. Unless the person possessing the land has a 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 Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Others (2004) 1 SCC 271)"
20. This principle has been reiterated later in the case of M. Durai v. Muthu and Others (2007) 3 SCC 114 para 7. This Court observed as under:
"...In terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years pre- ceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
21. This court had an occasion to examine the concept of adverse pos- session in T. Anjanappa & Others v. Somalingappa & Another [(2006) 7 SCC 570]. The court observed that a person who bases his title on ad- verse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that the classical re- quirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. Possession must be open and hostile enough to be ca- pable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse posses- sor actually informing the real owner of the former's hostile action.
22. In a relatively recent case in P. T. Munichikkanna Reddy & Others v. Revamma & Others (2007) 6 SCC 59] this court again had an occasion to deal with the concept of adverse possession in detail. The court also examined the legal position in various countries particularly in English and American system. We deem it appropriate to reproduce relevant passages in extenso. The court dealing with adverse possession in paras 5 and 6 observed as under:-
"5. Adverse possession in one sense is based on the theory or pre- sumption that the owner 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 100 So. 2d 57 (Fla. 1958), Arkansas Commemo- rative Commission v. City of Little Rock 227 Ark. 1085 : 303 S.W.2d 569 (1957); Monnot v. Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).]
12. It is laid down at para no. 13 above of the citation Hemaji (supra) that plea is required at least to show when the possession has become adverse so that starting point of limitation against the party affected can be count.
Mere long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. It was further held at para no. 17 that absence of crucial pleadings to constitute adverse possession hostile to the right, title or interest of the original grantees the petitioner therein cannot claim that they have perfected their title by adverse possession. In absence of such plea the necessary ingredient on which evidence has to be lead is absent and therefore it cannot be said that the appellant has acquired his title by way of adverse possession. The entries made in the sales tax department and assessment thereunder are not record of rights of immovable property such that hostility can be claimed against the respondents to the said fact. The citation relied upon by the appellant titled Deshraj and Ors. V. Bhagatram by Lrs and Ors. (2007) 9 SCC 641 at para no. 22 has laid down that the entry was made in revenue settlement record of rights and therefore hostility of possession was shown. In the present case the assessment orders with sales tax department and receipts thereunder vide Ex.DW1/3 to Ex.DW1/30 may reflect possession of the appellant in the suit premises. However, the same does not reflect hostility of possession against the respondent in view of the fact that the above documents are not record of rights in the property and not concerned in any manner with the record of rights in the suit property.
13. The appellant has relied on citation titled Kshitish Chandra Bose v. Commissioner of Ranchi AIR 1981 Supreme Court 707 at para no. 8 that possession must be open and without any attempt and concealment. It is not necessary that the possession must be effective so as to bring it to the specific knowledge of the owner with such requirement or specific knowledge may be insisted upon where ouster of title is pleaded. According to the appellant his possession was open and he did not conceal his possession and therefore his possession is in knowledge of the respondent. It is noted that possession is only one of the factor which is to be considered in view of citation titled as Hemaji (supra). The hostility of possession must be clear and specific. The appellant in the present case has failed to even plead the specific date on which his possession has become hostile. When he is pleading that he has come into possession 40 years back then he must plead that his hostile possession is against the Competent Authority/Government and from such date. This is not the case of the appellant herein. In such circumstances of the case neither the appellant has proved his specific possession nor he has proved hostility in his such possession against the Competent Authority or that if such possession was in knowledge of the Competent Authority. Hence, the necessary ingredients as to hostility in possession against the Competent Authority who is not even the party in the present suit has not been proved by the appellant. The burden of proof is on the appellant when he is claiming adverse possession. The documents of assessment of sales tax were of later date then the date of issuance of sale certificate. Hence defendant is required to prove adverse possession against the Competent Authority/State. The appellant has failed to prove the same. Hence, it is held that appellant has failed to prove on record that he has perfected his title by way of adverse possession on the suit property.
14. The plea of the appellant is accepted that limitation should have been considered even when it is not referred in pleadings. The limitation has to be looked from the date from which adverse possession is claimed by the appellant. When there is no such pleading then the appellant has failed to make issue as to limitation.
15. In such view of the matter the judgment of ld. Trial Court dated 21.07.2016 is upheld accordingly. The appeal is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
Original documents of the parties may be returned on filing of the certified copy only to the parties by whom they are filed as per rules.
Trial Court record alongwith copy of this judgment be sent back to the ld. Trial Court.
Appeal file be consigned to the record room.
Digitally signed by JOGINDER JOGINDER
Announced in the open Court PRAKASH PRAKASH NAHAR
Date: 2018.05.05
on 3rd May 2018 NAHAR 09:54:38 +0530
(JOGINDER PRAKASH NAHAR)
ADDL. DISTRICT JUDGE-04
CENTRAL/TIS HAZARI COURT/DELHI