Delhi District Court
Sh. Praveen Kumar vs Smt. Rakshi Aggarwal on 14 September, 2016
IN THE COURT OF SH. SHAILENDER MALIK:
ADJ16(Central)TIS HAZARI COURTS: DELHI
CS NO. 583/16/09
New CS No. 609441/2016
1. Sh. Praveen Kumar
S/o Late Sh. Ram Saroop Sachdev
R/o H. No,. 5101, Krishna Nagar,
Karol Bagh, New Delhi 11 0005
2. Smt. Prem Kumari Sachdeva
W/o Late Sh. Ram Saroop Sachdev
R/o H. No,. 5101, Krishna Nagar,
Karol Bagh, New Delhi 11 0005
... PLAINTIFFS
VS.
1. Smt. Rakshi Aggarwal
W/o Shri G.S. Aggarwal
D/o Late Smt. Shanti Devi & Sh. J.C Gupta
2. Sh. Prem Prakash Gupta
S/o Late Smt. Shanti Devi & Sh. J.C Gupta
3 Sh. Anil Kumar Gupta
S/o Late Smt. Shanti Devi & Sh. J.C Gupta
4 Smt. Kusum Gupta
W/o Sh. P.S. Gupta
D/o Late Smt. Shanti Devi & Sh. J.C Gupta
5 Sh. Jagdish Chander Gupta
S/o Late Smt. Shanti Devi & Sh. J.C Gupta
All residents of:
CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 1 of 16
51, Ashutosh Napean Sea Road,
Mumbai 400061
..... DEFENDANTS
DATE OF INSTITUTION : 23.12.2009
DATE OF ARGUMENTS : 08.09.2016
DATE OF JUDGMENT : 14.09.2016
JUDGMENT:
1. This is suit for declaration, whereby plaintiffs seek to declare them to be owner by way of adverse possession of property bearing No. 5101, Gali No. 1, Krishan Nagar ( situated in khasra No. 236 ), Karol Bagh, New Delhi ( Ground Floor) ( hereinafter referred as 'suit property') measuring about 150 Sq. Yds. Plaintiffs have also sought relief of decree of permanent injunction to restrain defendants herein or their associate etc. from claiming title through or from them, based upon documents arising either from cancelled sale deed of Sh. Harbans Lal Chopra or by virtue of any other right flowing therefrom or any other deed. Plaintiffs also sought to restrain defendants from disturbing possession of plaintiffs in suit property.
2. As per case of plaintiffs, Late Sh. Ram Saroop was lawful CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 2 of 16 tenant under one Smt. Shanti Devi ( mother of all defendants ) in portion of suit property. Late Ram Saroop had been occupying the suit property since 1946, with his family. After his death on 27.1.2004, he was survived by four legal heirs, being wife (Plaintiff No. 2 ) and three sons namely Praveen Kumar ( Plaintiff No. 1 ), Arun Kumar Sachdev and Virender Nath Sachdev. After the demise of late Sh. Ram Saroop, plaintiffs no. 1 & 2, continuously occupied and maintained the suit property whereas other two legal heirs stated to have moved out of suit property. Thus plaintiffs claim to have been continuously living in suit property since 1946 along with Late Sh. Ram Saroop. It is stated that even after death of Sh. Ram Saroop, landlord Late Shanti Devi, had been accepting rent from plaintiffs, till year 1985. Plaintiffs have relied upon Bank Certificate, showing amount of Rs. 2100/ was debited from saving account of late Sh. Ram Saroop through cheque and credited in the name of Smt. Shanti Devi.
3. Case of plaintiffs further is that Smt. Shanti Devi accepted rent till year 1985, but thereafter plaintiff stated to have learnt that she executed a Gift Deed in favour of her CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 3 of 16 daughter Smt. Rakshi Aggarwal on 18.7.1961, registered on 26.7.1961. However, in that Gift Deed Smt. Shanti Devi mentioned units No. 5098 & 5099, but did not mention khasra number. Moreover in that Gift Deed house No. 5100 is mentioned to be falling on the eastern side of gifted property, whereas said house No. 5100 is first floor unit, above the suit property comprised in khasra No. 236. It is stated that record reveals that Smt. Shanti Devi, thereafter written letter dated 31.8.1961 to Chairman, DDA, requesting for transfer of lease hold rights of aforesaid gifted property in favour of her daughter Smt. Rakshi Aggarwal.
4. It is further case of plaintiffs that they came to know that their landlady Smt. Shanti Devi W/o Sh. Jagdish Chandra Gupta, since was facing some Income Tax problem, therefore landlady Smt. Shanti Devi apprehended that their properties falling in khasra No. 235 & 236 of address as mentioned above, may be attached for certain recoveries to be made under Income Tax Act. Therefore these people in collusion with each other and in order to avoid execution of any distress warrant, likely to be issued by Income Tax Department, sought to CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 4 of 16 transfer for these properties interse, by virtue of bogus Gift Deed. As they wanted none of property exist in the name of land lady Smt. Shanti Devi or in the name of her husband. It is in this back ground Smt. Shanti Devi stated to have moved application on 31.8.1961 to Chairman, DDA for mutation. It is stated that landlady Smt. Shanti Devi with ulterior motives, while moving above said application for mutation did not mention khasra No. 235 on which those gifted properties were built up. Rather by manipulation in office of DDA, obtained mutation entry in respect of khasra No. 235 as well as khasra No. 236, although khasra No. 236 was not subject matter of gift deed, as gifted properties were comprised in khasra No. 235 only.
5. It is alleged that thereafter Smt. Rakshi Aggarwal by taking advantage of such manipulation in mutation entries, had executed an irrevocable Power of Attorney and registered it on 1.10.1985 at Chandigarh, in favour of Sh. Sunil Gupta, authorising thereby to sell property No. 5100 & 5101 of khasra No. 236 & to take all necessary steps in this regard. In that power of attorney it was no where mentioned that Smt. Rakshi CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 5 of 16 Aggarwal was owner of property or that she had any right to sell the same.
6. It is further mentioned in the plaint that said Sh. Sunil Gupta, on the basis such attorney, moved an application on 27.3.1987 to Competent Authority along with 4/5 affidavits for permission to sell property No. 5100/5101 at khasra No. 236 to Sh. H.L. Chopra as proposed vendee. Though accompanying affidavits were incomplete and not properly sworn. Still permission was allegedly granted in haste on date of application itself i.e. 27.3.1987.
7. Thus it was clear from the above facts that Smt. Rakshi Aggarwal and Sh. Sunil Gupta were in haste to fraudulently execute Sale Deed of property No. 5100 & 5101 of Khasra No.
236. After obtaining such permission Sh. Sunil Gupta acting on power of attorney of Smt. Rakshi Aggarwal executed two separate sale deeds on 27.03.1987 in favour of Sh. H.L. Chopra of sale consideration of Rs. 48,000/ each for selling undivided half share in H. No. 5100 and 5101 by getting it registered. In those sale deeds it was intentionally misrepresented that CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 6 of 16 mutation was dated 9.3.2007.
8. Plaintiffs further stated to have come to know that landlady had also executed a gift deed of Land comprised in khasra No. 236 on 24.12.1969 in favour of her son Mr. Anil Gupta and that Gift Deed was also registered. On the basis of such Gift Deed an application was filed by Smt. Shanti Devi, for mutation of khasra No. 236 in favour of her son Anil Gupta, which was however declined by DDA. In such facts, sale deed dated 27.3.1987 in favour of sh. H.L. Chopra was not a legal document.
9. Moreover, Rakshi Aggarwal hadsold the properties, which were actually gifted to her by her mother Smt. Shanti Devi, to one Smt. Sushma Devi W/o Om Prakash by registered Sale Deed dated 26.2.1983.
10. Sale Deed executed for khasra No. 236 in favour of Sh. H.L. Chopra, executed by Sh. Sunil Gupta as GPA holder of Smt. Rakshi Aggarwal was null and void as Gift Deed of Smt. Rakshi Aggarwal ws not in respect of suit property. But when CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 7 of 16 said Sh. H.L. Chopra, approached plaintiffs to claim ownership of suit property and also claiming to be landlord, father of plaintiff No. 1, late Sh. Ram Saroop had filed suit against Smt. Shanti Devi, Smt. Rakshi Aggarwal, Sh. H.L. Chopra and Sh. Sunil Gupta, seeking declaration to declare said registered sale deed in favour of Sh. H.L. Chopra to be null and void. Said suit was decreed by judgment dated 18.1.2000 in favour of father of plaintiff No. 1 and Court thereby declared that no title passed to Sh. H.L. Chopra in respect of H. No. 5100 & 5101 (suit property) by said sale deed. It was held in that suit that there was no relationship of landlordtenant between H.L. Chopra and Sh. Ram Saroop Sachdev as Sh. H.L. Chopra did not acquire any title in suit property.
11. It is further mentioned in the plaint that above said decree dated 18.1.2000 was passed in favour of the plaintiff as the very Gift Deed on the basis of which the sale deed was affected was not legal. Moreover, plaintiffs have come to know that during the trial of above said suit, Sh. H.L. Chopra sold the suit property to one Gunjit Singh by sale deed dated 13.8.1998. Though sale deed in favour of H,.L. Chopra has been CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 8 of 16 held to be null and void. It is stated said Gunjit Singh also executed an agreement to sell, power of attorney dated 15.5.2000 in favour of Chander Prakash Thareja. Said attorney was filed in a suit for permanent injunction filed against late Sh. Ram Saroop and his legal heirs before Ld. Civil Judge. That suit was also duly contested. However, subsequently said Chander Prakash Thareja also stopped appearing in that suit and therefore suit was dismissed for non prosecution. 12 It is stated as a result plaintiffs are left with no landlords who can claim legal and rightful ownership in the suit property after 1985 i.e. the day when last rent was paid to landlady Smt. Shanti Devi. It is stated that plaintiffs have perfected their title in the suit property by way of adverse possession as possession of plaintiffs in the suit property has been opened, continuous, uninterrupted and hostile to the interest of any other person including all the defendants for the last almost 25 years. As such right accrued in favour of the plaintiffs. It is stated that in recent past strange people have been visiting to suit property and claiming rights in it without any document. In December 2009, plaintiffs were shocked to see that some CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 9 of 16 persons claiming to be officers of Punjab National Bank came and declared that now they are the owner of the suit property. Plaintiff then told them to show the documents of title, they refused and went away. Hence the present suit was filed with the prayer as aforesaid.
13 After the institution of the suit originally in Hon'ble High Court, summons were issued to defendants, which returned unserved repeatedly. Ultimately defendants were served by way of publication in the newspaper, but when none appeared on behalf of the defendant, they were proceeded exparte on 20.5.2013.
14 In an exparte evidence one witness plaintiff no. 1 Parveen Kumar had appeared as PW1. PW1 in his affidavit of examination in chief has reproduced all those facts as mentioned in the plaint. PW1 in his evidence proved SPA executed by plaintiff no. 2 in his favour as Ex. PW1/1, site plan Ex. PW1/2, Gift deed dated 18.7.61 executed by late Smt. Shanti Devi in favour of defendant No. 1 as Ex.. PW1/3, LIC policy of plaintiff No. 2 as Ex. PW1/4, certificate issued by CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 10 of 16 Syndicate Bank dated 28.6.87 certifying payments made to Smt. Shanti Devi is Ex. PW1/8, plaint of suit title as Ram Saroop and others Vs Shanti Devi and others is Mark A, judgment dated 18.1.2000 is Ex. PW1/13, water bill, telephone bill, LPG receipt, bank statement, ration card, pan card, I card etc. are Ex. PW1/14 to PW1/23.
15 I have heard Ld. Counsel for the plaintiff and has gone through the record. It is evident from the above said discussion of facts and evidence that plaintiffs are claiming to be owner in respect of suit property by way of adverse possession. Admittedly father of plaintiff No. 1 inducted in the suit property as a tenant. Plaintiffs being legal heirs of late Ram Sarup Sachdev were occupying the suit property in their capacity as tenant. Even if I admit the entire case of plaintiff to be proved, still I find that plaintiffs cannot be held to be owner of suit property by way of adverse possession. The scope of adverse possession is required to be discussed here. 16 Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 11 of 16 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 doing those acts which must be ascertained from the facts and circumstances of each case. Where possession could be referred to a lawful title, it will not be considered to be adverse. Thus 'Animus possidendi' is one of the ingredients of adverse possession. In Karnataka Board of Wakf v. Government of India and others (2004) 10 SCC 779, it was observed:
"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, CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 12 of 16
(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."
17. As held in Dr. Mahesh Chand Sharma v. Smt. Raj Kumari Sharma and others, AIR 1996 SC 869, where a person claims to have come in possession under an agreement to sell, he otherwise cannot claim 'adverse possession'. Because having come into possession under the agreement, he must disclaim his right there under 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 illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription. Again ownership by adverse possession would arise only when the possession of a person is hostile to the actual ownership or in other words, he could not be in possession of the premises in question in the capacity of a tenant, licensee or in permissive occupation by the owner himself. If he is to put into possession by the owner then he cannot setup the defence of adverse possession and claim himself to be the owner. This principle has not only been laid down by the Supreme Court in case titled Thakur Kishan Singh v. Arvind Kumar, AIR 1995 SC 73 but also in judgments of our own High Court in cases titled Praveen CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 13 of 16 Narang v. Dinesh Gulati & Another, 161 (2009) DLT 585 and Poonam Sharma v. Prem Nath Anand Buildcon Private Limited & Others, 186 (2012) DLT 472.
18. Another important facet of adverse possession is that by virtue of remaining in possession the possessor takes an adverse stance to the title of the true owner and disputes the same. Therefore a mere possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. It has been held in Secy. of State for India in Council v. Debendra Lal Khan, AIR 1934 PC 23 that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario.
19. In P.T. Munichikkanna Reddy and Others v.
Revamma and Others, (2007) 6 SCC 59, it has been opined that 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 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 CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 14 of 16 over the statutory period.
20. Thus it is to be borne in mind that adverse possession, as a right, does not come in aid solely on the base that the owner loses his right to reclaim the property because of his willful neglect but also on account of the possessor's constant positive intent to remain in possession.
21. In the present case even if by virtue of decree dated 18.1.2000 passed by the court Ld. ADJ, Sale Deeds dated 27.3.1987 in favour of Sh. H.L. Chopra regarding suit property might have been declared null and void. Even if another suit for injunction filed by Sh. Chander Prakash Thareja might have been dismissed for none prosecution. Even if Smt. Sakshi Aggarwal and Sunil Gupta had fraudulently obtained permission for selling property No. 5100/5101 of Khasra No. 236, Krishna Nagar, Karol Bagh, New Delhi, these facts by itself do not establish any title by way of adverse possession in favour of the plaintiff. As noted above mere continuous, open possession of plaintiffs is not sufficient. There must be a hostile possession to a rightful owner. In the present case it is rather admitted by plaintiffs in their plaint and evidence that they were left with no landlords to claim rightful ownership in respect of the suit property. In the absence of proof of hostile possession of plaintiffs to the knowledge of rightful owner, plea of adverse possession cannot be held to have been established. As discussed above, one who has been lawfully inducted into possession of the property like tenant, licensee or under any CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 15 of 16 agreement to sell, cannot claim ownership by way of adverse possession unless there is specific evidence to show their possession being hostile to lawful owner and being continuous open for the period as prescribed under the law of limitation. In the present case even if there may not be any lawful owner of suit property since 1987 because of series of events narrated in the evidence of PW1. Mere absence of lawful owner and continuous possession of the plaintiffs, does not render them to be owner by way of adverse possession, specifically when they were inducted only as a tenant in the suit property. There should have been a positive evidence to show that from a particular date, their possession was no more in their capacity as tenant rather their possession is hostile and open to lawful owner. Unfortunately there is no such evidence on the record. Thus, I find that plaintiffs have failed to establish their claim of being owner by way of adverse possession. Consequently suit stand dismissed. Decree sheet of dismissal be prepared accordingly. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT ON 14.09.2016 (SHAILENDER MALIK) ADJ16 (CENTRAL) TIS HAZARI COURTS:
DELHI CS NO. 583/16 Praveen Kumar. Vs Rakshi Aggarwal etc. Page 16 of 16