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Delhi District Court

Smt. Gurvachan Kaur vs Station Commandant on 12 April, 2018

     IN THE COURT CIVIL JUDGE-06 (CENTRAL), TIS HAZARI COURTS,
                              DELHI
           PRESIDED BY- HARSHITA VATSAYAN(CIVIL JUDGE)


SUIT No. 96413/16 & Misc No. 60435/16

1.

Smt. Gurvachan Kaur W/o Sh. Balwant Singh R/o Part of 21 No. Kothi, Abdulla Dairy Delhi Cantt-10, Delhi.

2. Sh. Balwant Singh S/o Late Sh. Shibba Singh R/o Part of 21 No. Kothi, Abdulla Dairy Delhi Cantt-10, Delhi. .........Plaintiffs VERSUS

1. Station Commandant Station Head Quarters, Delhi Cantt, Delhi

2. Delhi State Circle Officer, Delhi Circle, Delhi Cantt. 10, Delhi

3. Managing Officer, Evacuee Property Cell, Ministry of Rehabilitation Delhi Secretariat, New Delhi. ..........Defendants Date of institution of the Suit : 05.04.2006 Date on which Judgment was reserved : 21.03.2018 Date of pronouncement of Judgment : 12.04.2018 Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   1/75 SUIT FOR DECLARATION AND PERMANENT AND MANDATORY INJUNCTION

1). Vide this judgment, I shall dispose off a suit filed by the plaintiffs Smt. Gurvachan Kaur and Shri Balwant Singh, seeking the reliefs of declaration ; mandatory injunction and permanent injunction against the defendants i.e. The Station Commandant (Station Headquarters, Delhi Cantonment); Delhi State Circle Officer (Delhi, Circle, Delhi Cantonment); and Managing Officer (Evacuee Property Cell, Ministry of Rehabilitation, Delhi Secretariat). I shall also dispose off an application filed by the plaintiffs under Order XXXIX Rule 2A CPC read with Section 12 Contempt of Court Act read with Section 151 CPC.

2). Succinctly put, the factual matrix of the case, shorn of unnecessary details, as could be culled out from a bare perusal of the respective pleadings of the parties is as under:-

FACTUAL MATRIX AS GIVEN IN THE PLAINT

3). The plaintiffs aver that ever since 1947, they have been occupying property admeasuring ½ acre forming Part of Kothi No. 21, Abdullah Dairy, Delhi Cantonment-10, Delhi and enjoying the peaceful Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   2/75 possession thereof. The site plan of the suit property has been annexed along with the plaint. The plaintiffs aver that they alongwith their family members have been cultivating the aforesaid land since 1947 and that the plaintiffs were earning their livelihood by selling the vegetables and fruits that were grown on the said land. The plaintiffs aver that in the year 1947, the plaintiffs had migrated from Village Pathrol Tanda, Tehsil Shakargarh, District Gurudaspur, Punjab to Delhi. The plaintiffs submit that due to the communal disturbances of those times, they were forced to flee from their ancestral village leaving behind their ancestral property there. The plaintiffs submit that on migrating to India they had occupied the suit property which had been left behind by some Muslims who had been residing there and who had migrated to Pakistan. The plaintiffs submit that some other persons like Shri Sonu, Shri Vipin, Shri Kalicharan, Smt. Mahinder Kaur, Yadav Family etc. had also started residing there and had also captured the property and the land of the person named Abdullah who had migrated to Pakistan on account of communal violence. The plaintiffs submit that they had also built a pakka room on the suit property. They submit that ever since 1947 they have been peacefully and openly enjoying Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   3/75 the peaceful possession of the suit property and they had by adverse possession become the absolute owner of the aforesaid property on account of this uninterrupted usage of 50 years. The plaintiffs submit that they had written letters dated 01.05.2003 and 03.06.2005 to the Hon' ble Prime Minister of India and to the Member of Legislative Assembly concerned in this regard. They submit that they had sent a similar letter to Brigadier KMC Shergill, Deputy GOC, Station Headquarter, Delhi Cantonment, Delhi. Similar letters were also sent to Hon' ble President of India, Chief of Army Staff; Colonel SK Razdan (Staff Officer, Station Headquarter, Delhi) etc. The plaintiffs allege that on 06.09.2005 some army men had come to the suit property and tried to damage the room built on the suit property and had also forcibly thrown out the personal belongings and articles of the plaintiffs therefrom. When the plaintiffs asked them to refrain from doing so, they are alleged to have threatened the plaintiffs as well. They had also tried to damage the crop of the plaintiffs as well. When the plaintiffs threatened them that they will call the police, these army men ran away. Similar threat was also given by the JCO EME Station Workshop, Delhi Cantonment. The plaintiffs submit that Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   4/75 they have an apprehension that the army men in connivance with Shri Sonu, Shri Vipin, Shri Kalicharan, Smt. Mahinder Kaur, Yadav Family were trying to illegally and forcibly grab the aforesaid property of the plaintiffs. The plaintiffs submit that these army personnel had in connivance with some land grabbers already grabbed land in the remaining three acres. The plaintiffs aver that the plaintiff no.2 is a government servant who was to retire in 2007 and thereafter the suit property shall be the only piece of land for eking a livelihood. The plaintiffs submit that they had also received a letter dated 23.12.2005 from the Office of the Sub Divisional Magistrate, Delhi Cantonment, Delhi and the Letter was addressed to the Managing Officer, Evacuee Property Cell, Ministry of Rehabilitation, Delhi Secretariat, Delhi. They had also received letters from the office of the Staff Officer (Land), Station Headquarter, Delhi Cantonment-10 (dated 06.10.2005 and 02.11.2005). The plaintiffs had also received a letter dated 17.02.2006 from the Office of the Divisional Commissioner (Coordination Branch), Government of NCT Of Delhi and also from the Under Secretary (Public Grievances) to the Chief Minister forwarding the representation of the plaintiff to the Hon' ble Defence Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   5/75 Minister, Government of India. The plaintiffs had also made complaint to the Station House Officer, PS Sadar Bazaar, Delhi Cantonment, Delhi. The plaintiffs aver that due to the sky rocketing prices of land, the defendants want to dispossess the plaintiffs by hook or by crook from the suit property. The plaintiffs contend that the defendants are illegally threatening the plaintiffs to usurp the land in question so as to defeat the legitimate proprietary rights of the plaintiffs. The plaintiffs submit that in case the defendants are not restrained from dispossessing the plaintiffs without adopting the due process of law and if they are not restrained from alienating the suit property to a third party, the plaintiffs would suffer irreparable loss and injury. The plaintiffs submit that since no concrete action was taken on their complaint by any of the authorities to which they had sent complaints and representations, the plaintiffs were compelled to file the present suit for declaration and permanent and mandatory injunction. In the prayer clause of the plaint, the following reliefs have been sought by the plaintiffs:-

a) A decree for permanent and mandatory injunction in favour of the plaintiffs and against the defendants, thereby restraining the defendants, Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   6/75 their employees, attorneys, agents and representatives, servants etc. from interfering with the peaceful enjoyment of suit property admeasuring ½ acre of Kothi No. 21, Abdullah Dairy, Delhi Cantonment, Delhi;

b) Decree for permanent and mandatory injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants, their employees, agents, representatives etc. from evicting/ dispossessing the plaintiffs from the suit property i.e. property admeasuring ½ acre of Kothi No. 21, Abdullah Dairy, Delhi Cantonment, Delhi;

c) Decree of declaration against the defendants thereby declaring that the act of the defendants in breaking/ demolishing some part of the room and destroying the vegetables grown by the plaintiffs is illegal and without jurisdiction; and

d) Decree of declaration in favour of the plaintiffs and against the defendants that the plaintiffs are the absolute owners of the property admeasuring ½ acre of Kothi No. 21, Abdullah Dairy, Delhi Cantonment, Delhi due to passage of time for more than 50 years. It is to be noted that the plaintiffs have alternatively sought another prayer in lieu of this prayer i.e. a decree of mandatory injunction in favour of the Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   7/75 plaintiffs and against the defendant no.3 to allot land/ property in favour of the plaintiffs in lieu of property admeasuring ½ acre of Kothi No. 21, Abdullah Dairy, Delhi Cantonment, Delhi and also grant rehabilitation package to the plaintiffs for the loss of the suit property and inconvenience on account of dislocation from the suit property.

4). Summons for settlement of issues was served upon all the defendants. The defendant nos. 1 and 2 didn't enter an appearance in court and also didn't file the Written Statement within the statutorily prescribed time. Hence, the Ld Predecessor vide order dated 22.04.2006 deemed it fit to close their right to file Written Statement and proceeded ex- parte against them on 22.04.2006. Thereafter, an application under Order IX Rule 7 Civil Procedure Code (herein after referred to as "CPC") was filed on their behalf of 30.11.2006 and the same was allowed by the Ld. Predecessor vide order dated 27.04.2007. The written statement of the defendant nos. 1 and 2 which had been filed on 01.03.2007 was taken on record.

FACTUAL MATRIX AS GIVEN IN THE WRITTEN STATEMENT FILED BY DEFENDANT NOS.1 and 2 Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   8/75

5). The defendant nos. 1 and 2 i.e. Station Commandant (Station Headquarters, Delhi Cantonment); Delhi State Circle Officer (Delhi, Circle, Delhi Cantonment) filed a joint written statement on 30.11.2006. A slew of preliminary objections have been raised by the defendant nos.1 and 2 against the maintainability of the present suit, which are enumerated in brief herein under. Firstly, it is contended that the suit was defective for non- joiner of a necessary party as the Union of India had not been arrayed as a defendant herein. Secondly, it is contended that the suit was bad for non-service of the statutory notice as stipulated in Section 80 of the Civil Procedure Code. Thirdly, it is contended that the plaintiffs had no locus standi to file the present suit and hence, the present suit warranted an in limine dismissal. Fourthly, it is contended that the suit was not in accordance with Order VI Rule 2 CPC and hence, it merited a dismissal. Fifthly, it is contended that the present suit had not been properly valued for the purpose of Court Fees and jurisdiction. Sixthly, it is contended that the correct value of the suit property was much more than the pecuniary jurisdiction of this court and hence, this court had no power or competence to entertain and try the present suit. Seventhly, it is contended that the Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   9/75 plaintiffs had not approached the Court with clean hands and had concealed or contorted several material facts from or in front of the Court to procure a favourable verdict and hence, the discretionary, equitable reliefs of declaration and mandatory and permanent injunctions ought not to be granted to them.

6). On merits too, the suit of the plaintiffs has been assailed. The defendant nos. 1 and 2 submit that the plaintiff no.2 Shri Balwant Singh had joined the services of the Government of India under the Ministry of Defence in the MES Office and was posted a Delhi Cantonment at the time of filing of the present suit. The plaintiff no.2 had been allotted a Government Quarter and was working as a Chowkidar and was residing with the plaintiff no.1 at the Government Quarter bearing no. 7/4, Khandar Lines, Delhi Cantonment, Delhi at the time of institution of the present suit. The plaintiff no.2 was to retire in 2007 and as per the existing service rules, the plaintiff no.2 was to get a pension after retirement. The defendant nos.1 and 2 submit that the suit property was a government land and the Union of India was the owner thereof and that the suit had been placed at the disposal of the Ministry of Defence through the MEO. The Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   10/75 defendant nos. 1 and 2 have made an emphatic denial that the plaintiffs had been the occupants of the suit property since 1947 and that they had acquired prescriptive title. The defendant nos. 1 and 2 also submit that the suit property had been leased out to Shri Abdullah by the Government on 30.10.1957 and consequent upon the migration of Shri Abdullah to Pakistan, the said property had been placed at the disposal of the Union of India. The defendant nos. 1 and 2 submit that of late, the plaintiffs had tried to encroach upon the Government land by virtue of its proximity to the government accommodation that they were occupying. The defendant nos. 1 and 2 state that the plaintiffs had no proprietary right, title or interest in the suit property and that they had not been in uninterrupted and peaceful possession of the suit property ever since 1947. The defendant nos.1 and 2 admit that the plaintiffs had sent correspondences to Colonel SK Razdan, Staff Officer, Station Headquarters, Delhi Cantonment and in pursuance to this representation sent by the plaintiffs, ample opportunities had been given to the plaintiffs to present their case alongwith relevant documents. However, the plaintiffs failed to avail of those opportunities and were now trying to grab the suit property by way of the present suit. Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   11/75 The defendant nos. 1 and 2 deny that their officials had ever committed any atrocities on the plaintiffs or had ever roughed them up. The defendant nos. 1 and 2 submit that the plaintiffs have falsely alleged that the suit property was the sole source for sustenance for them as the plaintiff no.2 would be entitled to pension benefits after his retirement from service. The defendant nos. 1 and 2 submit that the allegation leveled against them that their officials were acting in collusion with some other land grabbers to usurp the property of the plaintiffs was false and baseless. In light of the above said facts pleaded by the defendant nos. 1 and 2, a dismissal of the suit has been sought.

FACTUAL MATRIX AS GIVEN IN THE WRITTEN STATEMENT FILED BY DEFENDANT NO. 3

7). The Written Statement of Defendant no.3 was filed on 30.11.2006. The defendant no.3 has again raised several preliminary objections. Firstly, it is contended that this suit was premature as the notice stipulated under Section 80 CPC had not been served on it. Dismissal of the suit is sought on this ground as well. Secondly, it is contended that the plaintiffs had no locus standi to file the present suit as Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   12/75 they had no proprietary right, title or interest in the suit property. Thirdly, it is contended that the civil court has no jurisdiction to try the present suit as the suit property was an evacuee property.

8). On merits too, the suit of the plaintiffs has been lampooned by the defendant no.3. The defendant no. 3 submits that the plaintiffs have not placed on record any documentary proof to show that they had migrated to India from Pakistan and had settled on the suit property in the year 1947 and that they had been in exclusive, peaceful and uninterrupted possession of the same ever since. It is further contended that there can be no claims of acquiring title by way of adverse possession when the land stood vested in the government. It is contended by the defendant no. 3 that all facts stated by the plaintiffs to assert their proprietary right, title or interest in the suit property were false and the suit was a classic example of a vexatious and frivolous suit. Hence, it is stated that the suit was without any legal force and warranted a dismissal.

FACTUAL MATRIX AS GIVEN IN THE REPLICATION FILED BY THE PLAINTIFFS TO THE WRITTEN STATEMENT FILED BY DEFENDANT NOS. 1 AND 2 Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   13/75

9). In the replication filed by the plaintiffs on 24.01.2008, the contentions of the defendant nos. 1 and 2 have been denied in toto and the averments made in the plaint have been reiterated and reaffirmed. It is stated therein that the objection of non compliance of Section 80 CPC was sham and baseless and deliberately used to frustrate the otherwise meritorious suit of the plaintiffs. It is stated that the defendant nos. 1 and 2 knew of the claims made by the plaintiffs qua the suit property and hence, there was no requirement to serve a notice afresh to the defendant nos. 1 and 2.

FACTUAL MATRIX AS GIVEN IN THE REPLICATION FILED BY THE PLAINTIFFS TO THE WRITTEN STATEMENT FILED BY DEFENDANT NO. 3

10). In the replication filed by the plaintiffs on 29.10.2007, the contentions of the defendant nos. 1 and 2 have been denied in toto and the averments made in the plaint have been reiterated and reaffirmed. ISSUES FRAMED ON THE BASIS OF PLEADINGS FILED

11). Once the pleadings were complete, the Ld. Predecessor proceeded to frame the following issues vide Order dated 20.03.2012:-

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   14/75

a) Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP

b) Whether the plaintiff is entitled for the relief of permanent and mandatory injunction as prayed for? OPP

c) Whether the suit of the plaintiff is hit by Section 80 of CPC? OPD

d) Whether the suit of the plaintiff is bad for non- joinder of a necessary party? OPD

e) Whether the suit of the plaintiff is properly valued for the purpose of Valuation and Court Fees? OPD

f) Relief

12). The matter was posted for recording of the plaintiff's evidence (herein after referred to as "PE") thereafter. However, before discussing the evidence led by the plaintiffs, I would like to briefly mention that a few impleadment applications had been moved by non- parties to the suit seeking their impleadment. The date of filing of these impleadment applications and the order vide which they were disposed off are briefly discussed herein under. They are as follows:-

a) An application under Order I Rule 10 CPC read with Section 151 CPC had been filed by one Shri Prem Chand Verma through his Special Power of Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   15/75 Attorney holder (herein after referred to as "SPA holder"). It was stated in the application that the applicant had filed two other suits pertaining to the suit property in the capacity of a tenant therein. The plaintiffs filed a reply to the same and disputed that the suit property and another property regarding which the applicant had filed the suits were the same and submitted that there was nothing on record to show that the two properties were one and the same. Identity of the properties in the suits was disputed by the plaintiffs, who sought a rejection of the application. To settle the dispute about identity of suit properties in the different suits pending, the Ld. Predecessor directed the applicant to file certified copy of the site plan of the suit property regarding which he had filed the other two suits.

Defendant nos. 1 and 2 also contested the said application. On 13.10. 2011, the Ld. Predecessor dismissed the application of the applicant for impleadment as a defendant herein for the reason that the applicant had failed to produce any valid or legal document in support of his claim qua the suit property and for the reason that the applicant himself admitted that he was not in possession of the suit property. Not a single rent receipt, in respect of the tenancy of the suit property or any other form of Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   16/75 documentation showing or establishing the applicant's claim was filed on record and for this reason, the Ld. Predecessor dismissed the application.

b) Another impleadment application was filed by Smt. Kamla Yadav on 22.05.2012 and Replies to the same were filed on 25.10.2012 and 26.11.2013 respectively by the plaintiffs and the defendant nos. 1 and 2. The same was dismissed vide order dated 28.04.2014. In the application, it is stated that the plaintiffs had filed a false and frivolous suit with the malafide intent to grab government land. It is stated that the plaintiffs were not the owners of the suit property and were actually encroachers. It is alleged that by stating wrong facts before the Court, the plaintiffs were trying to usurp the suit property. It is denied that the plaintiffs had migrated to India from Pakistan and settled over the suit property ever since 1947. It is denied that the plaintiff no.2 had been occupying the suit property ever since 1947 and this version was belied by the fact that the service records of the plaintiff no.2 showed his date of birth to be 03.03.1947. It was stated in the application that the suit property had been leased to one Shri Abdullah in the year 1927 by the government and this person had migrated to Pakistan during the mass exodus of persons to Pakistan in 1947. Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   17/75 Thereafter, the said land had vested in the Custodian of Evacuee Property Act under the provisions of the Evacuee Property Act of 1950. The applicant averred that around 8 persons had settled in the suit property thereafter and one of these persons was Shri Jahri Singh, the ancestor/ predecessor of the applicant. Shri Jahri Singh had made a representation to the government on 04.03.1985 to get the property transferred in the names of the occupants as per the terms and conditions laid down by the Ministry of Home Affairs. The applicant stated that the names of the plaintiffs was nowhere to be seen in the list of refugees who had migrated to India in the year 1947 which further improbabalized the version of the plaintiffs. The applicant stated that all the Legal Representatives (herein after referred to as "LRs") of Shri Jahri Singh had made a representation to the Settlement Officer (EP) Rehabilitation Division, Ministry of Home Affairs, Jaisalmer House on 09.01.1991 to substitute their names in place of their deceased father Late Shri Jahri Singh. It was stated in the impleadment application that the LRs of the deceased Shri Jahri Singh had been paying the rent for the suit premises and that house of Late Shri Jahri Singh was existing on the suit site. It was stated that the plaintiff no.2 had cast an evil eye on the Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   18/75 suit property by misusing his proximity to the suit premises. The applicant stated that the Army authorities had illegally issued an eviction notice qua them on 21.01.1989 and had illegally demolished the house of the applicants. The applicant stated that a civil suit had been filed by her in the year 1992 seeking mandatory injunction and the same was pending adjudication and that the present defendants were also parties there. The applicant submits that the plaintiffs had taken wrongful advantage of the demolition of the house of the applicant and built a temporary structure thereon to stake a claim over the suit property. It was alleged that the plaintiffs had filed a collusive suit along with the defendants to defeat the legitimate rights of the applicant. The plaintiffs and the defendant nos. 1 and 2 contested the application. The plaintiffs alleged that the said application was a gross abuse of the judicial process and had been filed in collusion and at the behest of the former applicant Shri Prem Chand Verma and Shri Santosh Kumar Verma. Plaintiffs reiterated all averments in the plaint and denied that the applicant or her predecessors were ever in possession of the suit property. Defendant nos. 1 and 2 contested the said application by stating that the suit property belonged to the Government of Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   19/75 India, Ministry of Defence and the recorded holder of the occupancy rights was one Abdullah and sons and neither the plaintiffs nor the applicant was the recorded, authorized owner of the suit property. The Ld. Predecessor dismissed the application by observing that the suit filed by the applicant in the year 1992 against the present defendants had been dismissed by the court concerned with the observation that the applicant (plaintiff in that suit) had failed to show any independent title in the suit property. It had been held by that court that in the absence of documents to show possession or ownership, the mere filing of suits or correspondences done by the applicant for substituting her name before the Settlement Officer shall not confer proprietary rights on the applicant in the suit property. The Ld. Predecessor observed that the applicant had failed to show her locus to file the impleadment application and also the bar of res judicata comes into play where the issue in respect of locus and nature of occupation of the applicant had already been decided by a court of competent jurisdiction. With these observations, the impleadment application was disposed off.

EVIDENCE ADDUCED BY THE RESPECTIVE PARTIES Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   20/75 EVIDENCE ADDUCED BY THE PLAINTIFFS

13). Once the issues were framed the matter was listed for recording of plaintiffs' evidence (herein after referred to as "PE"). The plaintiff nos. 1 and 2 have themselves stepped into the witness box to depose as a witnesses. Their affidavits of evidence are marked Exhibit PW-1/1 and Exhibit PW-2/1 respectively. The contents of the same are not being reproduced here for the sake of brevity as it was a mere reiteration and reaffirmation of the contents of the plaint and replication. The plaintiffs have jointly relied upon the following documents:

a) Site plan of the suit property marked Exhibit PW1/A;

b) Copy of Ration Card of the plaintiff no. 1 marked Exhibit PW1/B (OSR);

c) Copy of telephone bill marked Exhibit PW1/C (colly.) (OSR);

d) Copy of Birth Certificate and School Leaving Certificates marked Exhibit PW1/D;

e) Copy of Letter sent by the plaintiffs to Member of Legislative Assembly marked Mark PW1/E;

f) Copy of Letter sent by the plaintiffs to Hon' ble Prime Minister of India Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   21/75 marked Mark PW1/F;

g) Letter sent by the plaintiffs to different authorities in the Indian Army dated 25.08.2005, 20.09.2005, 20.01.2005, 10.12.2005 are marked Mark PW1/F (colly.) and Copy of Letters sent to Chief of Army Staff and Colonel SK Razdan, Staff Officer, Station Headquarter, Delhi Cantonment marked Mark PW1/G (colly.);

h) Copy of Letter received by the plaintiffs from the Office of Sub Divisional Magistrate, Delhi Cantonment, Delhi marked Mark PW1/H;

i) Copy of Letters received by the plaintiffs from the office of Staff Officer (Land), Station Headquarters, Delhi Cantonment marked Mark PW1/I;

j) Copy of Letter received by the plaintiffs from the Office of the Divisional Commissioner (Coordination Branch), Government of NCT of Delhi marked Mark PW1/J;

k) Copy of letter received by the plaintiffs from the Under Secretary to the Chief Minister (Public Grievances) dated 15.12.2005 marked Mark PW1/K;

l) Complaint made by plaintiffs at PS Sadar Bazar, Delhi Cantonment marked Mark L; and Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   22/75

m) Service Record of the plaintiff no. 2 marked Exhibit PW1/M.

14). Plaintiff no. 1 in her cross examination stated that she had migrated to India from Pakistan in the year 1947. She later stated that she was born in India and it was her husband who had migrated to India from Pakistan. She stated that she was not aware about the contents of her affidavit of evidence. She stated that her husband i.e. plaintiff no.2 had been staying in the suit property ever since 1947 and she started living there after her marriage. She stated that the suit property is not in her or her husband's name. She stated that she had built two rooms thereon but couldn't recall the year of construction. She admitted that no permission was taken from the government to construct the rooms thereon. She admitted that the construction was unauthorized. She admitted that she hadn't been cultivating the suit property since 1947 and it had been wrongly stated so in her affidavit of evidence. She stated that land belonged to Abdullah and sons and had not been mutated in the name of her husband or her name. She stated that her husband was a Sipahi and stated that she didn't know his age at the time of marriage. She admitted that even her son was an Army Personnel. She stated that agricultural yield Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   23/75 from the suit property was used for household purposes. She admitted that the Patwari had not recorded the cultivation in the khasra girdawari. She also admitted that she had not filed any complaint before the concerned authority regarding this. She denied that the Army personnel had served notice prior to demolition of the rooms. She stated that after demolition she had again constructed two rooms and grown fruit trees and crops etc. She admitted that she had no refugee card to substantiate her plea that she was a migrant from Pakistan. She stated that in order to get the land mutated in their name, she as well as plaintiff no.2 had written to the Patwari of Village Kapashera around 10 years back. She admitted that she hadn't pursued the same later. She denied that the land had been initially leased by the Government of India to Abdullah and Sons for 30 years only in the year 1927. She denied that the lease expired in 1957 and the suit property thereafter vested with the Custodian of Evacuee Property by virtue of Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. She also stated that she had constructed the two rooms around 20 years back alongwith a bathroom and thereafter, she again raised construction thereon. She admitted that she had not placed on Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   24/75 record any document to show that her husband had migrated from Pakistan and that they had approached the Patwari, Tehsildar or any government authority to get his name registered in the Refugee List. She denied that her husband i.e. plaintiff no.2 was a chowkidar and not a sipahi. She denied that complaints had been registered with the police against the plaintiffs on 27.08.2007 (at PS Sadar Bazar, Delhi Cantonment) regarding the plaintiffs attempt to dig a borewell in the suit property after felling a tree. She denied that suit property was a government land and she alongwith her husband was trying to grab the same illegally in the garb of the present suit.

15). PW2 Shri Balwant Singh (i.e. plaintiff no.2) has in his cross examination stated that he was not aware of the khasra no. of the suit property and the name of the village where it was situated. He admitted that he didn't have any khasra girdawari to show that he had been cultivating the said land. He also admitted that he had no refugee card. He stated that he had approached the Revenue Authorities to get the suit property mutated in his name and written a letter to the Patwari around 10 years back in this regard. However, he admitted that he hadn't followed up Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   25/75 with him thereafter. He denied that the land had been initially leased by the Government of India to Abdullah and Sons for 30 years only in the year 1927. He denied that the lease expired in 1957 and the suit property thereafter vested with the Custodian of Evacuee Property by virtue of Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. He also stated that he had constructed the two rooms around 20 years back alongwith a bathroom and thereafter, he again raised construction thereon. He stated that he was 10 years old when he migrated to India from Pakistan. He stated that he didn't get his name entered into the List of Refugees and neither approached any authority in this regard.

He admitted that he had not placed on record any document to show that he had migrated to India from Pakistan. He stated that his date of birth is 01.07.1937. He denied that complaints had been registered with the police against the plaintiffs on 27.08.2007 (at PS Sadar Bazar, Delhi Cantonment) regarding the plaintiffs' attempt to dig a borewell in the suit property after felling a tree. He denied that suit property was a government land and he alongwith his wife was trying to grab the same illegally in the garb of the present suit.

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   26/75

16). Plaintiffs closed the plaintiffs' evidence on 08.04.2016.

EVIDENCE ADDUCED BY THE DEFENDANTS

17). The matter was thereafter posted for recording of the defendant evidence (herein after referred to as "DE"). Shri Rakesh Kumar, Sub Divisional Officer- I, Office of Defence Estates Officer, Delhi Circle, Delhi Cantonment, Delhi has himself stepped into the witness box to depose in the instant matter on behalf of defendant nos. 1 and 2. His affidavit of evidence is marked Exhibit DW-1/ A. The contents of the same are not being reproduced here for the sake of brevity as it was a mere reiteration and reaffirmation of the contents of the written statement filed by defendant nos. 1 and 2. He relied upon the following documents:-

a) Authority letter in his favour by the defendant no.1 and 2 marked Exhibit DW1/1;

b) Copy of Lease Deed dated 01.10.1927 in favour of Abdullah and Sons marked Exhibit DW1/2 (OSR);

c) Copy of judgment passed in case titled "Kamla Yadav v. Union of India"

in suit no. 1513/06/92 by the Court of Shri Ajay Goel, SCJ cum RC (Central), Delhi marked Exhibit DW1/3 (OSR);

d) Copy of Letters dated 01.05.2003, 25.08.2005 and 21.03.2006 marked Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   27/75 Exhibit DW1/4 to Exhibit DW1/6 (OSR) respectively;

e) Copy of order dated 28.04.2014 marked Mark A;

f) Copy of GLR Extract marked Exhibit DW1/8 (OSR);

g) Copies of Letters/ complaints dated 26.12.2006; 12.11.2007; 13.11.2007;

09.01.2007 and 04.06.2007 are marked Exhibit DW1/9 to Exhibit DW1/13 (OSR); and

h) Photographs of renovation etc marked Mark C (colly.)

18). In his cross examination he stated that the land in question was a defence land. He stated that as per his knowledge the said land had never been acquired under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act. He stated that he was not aware whether the suit property had been placed under the Compensation Pool Property as per Section 14 of the Displaced Persons (Compensation and Rehabilitation) Act. He admitted that he had not placed on record any document to show that the Letter dated 18.03.1964 had been sent to defendant no.3. he stated that around 6-7 families were unauthorizedly squatting on the suit land. He admitted that suit property had been leased out to Shri Abdullah and Sons for 30 years initially with option to get the same renewed upto 90 years. He admitted that there were several squatters on the suit land. The families Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   28/75 had occupied the already existing structure that had been left behind by Abdullah and had also sporadically raised some unauthorized construction. He said that the defendant nos. 1 and 2 had not filed suits for eviction but had lodged complaints regarding the same. He denied that Army men had extended threats to the plaintiffs or roughed them up as alleged by the plaintiffs. He denied collusion between Army personnel and other property grabbers to forcibly evict the plaintiffs.

19). Since the defendant no.3 failed to take timely steps to lead DE, their right was closed vide order dated 21.12.2017.

    20).           DE was closed on the same date.


    21).           Matter was thereafter posted for final arguments which were

concluded on 21.03.2018 and the matter was thereafter posted for pronouncement of judgment.

22). Having briefly discussed the pleadings of the respective parties, the issues framed, the evidence adduced by the respective parties, I shall now delve into the realm of appraisal of the evidence led and I shall give my issue wise findings.

APPRAISAL OF EVIDENCE LED AND THE ISSUE WISE Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   29/75 FINDINGS

23). Findings on the issues:- "Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP"; and "Whether the plaintiff is entitled for the relief of permanent and mandatory injunction as prayed for? OPP"

I shall collectively dispose off the said issues as they are intermeshed with each other and can be decided by a common appraisal of the evidence adduced by the parties.

23.1). The onus of proving both these issues was on the plaintiffs. The plaintiffs claim ownership rights over the suit property on account of adverse possession since the year 1947. They claim to be in open, uninterrupted, hostile possession of the suit property ever since 1947. Hence, they seek a declaration of title as well as protection from the threats and intimidatory action of the defendants and protection from forcible eviction from the suit property.

23.2). Per contra, the defendants deny that the plaintiffs have been in settled possession of the suit property since 1947. They further claim that the suit property stood vested in the Union of India after its original Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   30/75 recorded lessee Abdullah and Sons fled to Pakistan in 1947. The defendants state that the plaintiffs were in a very crafty fashion trying to usurp the suit property and hence, law should no confer any benefit on a craft and wily litigant who is a deliberate trespasser into a suit property. 23.3). The contentious issue of seminal importance in the present suit is whether the plaintiffs had been in adverse possession of the suit property. If answered in the affirmative, the plaintiffs would be entitled to the reliefs claimed and if disproved, then the suit is bound to fail. However, before I giving any finding on the issue of plaintiffs being in adverse possession of the suit property, I deem it apposite to briefly recapitulate the law pertaining to the adverse possession. It is discussed herein under.

CONTOURS OF THE DOCTRINE OF ADVERSE POSSESSION AND EXCEPTIONS TO IT 23.4). The concept of adverse possession contemplates a hostile possession i.e. the possession which is expressly or impliedly in denial of the title of the true owner to the knowledge of the true owner and claiming the title as an owner- in- himself by the person claiming to be in adverse possession. In other words such hostile possession shall not be secret and Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   31/75 person in adverse possession must not acknowledge the title of the true owner but has to deny the title of the true owner. The adverse possession must be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action. This shows that the possession must be nec vi nec clam nec precario i.e. in continuity, in publicity and in extent.

23.5) While the precise elements of the doctrine vary somewhat by jurisdiction, there is a general consensus and substantive commonality that can be derived from the judicial opinions. In general, adverse possession, in order to ripen into title for the possessor, meaning a trespasser, must be:

1. Continuous; this means continual;

2. Hostile to the interests of the true owner - the "adverse" part of adverse possession;

3. Open and notorious -in order to put the true owner on notice that a trespasser is in possession;

4. Actual - so that the true owner has a cause of action for trespass, on which the true owner must act within the number of years defined by the Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   32/75 state;

5. Exclusive- no one else is using the property.

23.6). Adverse possession must be peaceable, open and not by consent of the true owner.1 23.7). To prove adverse possession, a squatter must establish that he has both the physical possession of the land and the required intention to possess it (animus possidendi).2 As an owner is presumed to be in possession of the land, a squatter must establish that he has taken a sufficient degree of exclusive physical control of the land. In Powell v McFarlane3, Slade LJ said:

"Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time." 1

Browne v. Perry [1991] 1 WLR 1297 and Mulcahy v. Curramore PEY Ltd [1974] 2 NSW LR 464. 2 Buckinghamshire County Council v. Moran [1990] Ch 623 (HL). 3 Powell v McFarlane (1977) 38 P & CR 452.

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   33/75 23.8). Given that possession raises a presumption of ownership, and that the common law tradition regards ownership as a relative concept as opposed to an absolute one, a possessory title is one that is good against everyone except the true owner.4 23.9). The question of possession by a squatter is a question of fact, hinging on all circumstances, especially the nature of the land and the manner in which it is usually enjoyed.5 It is also to be noted that though the term "phrase" may appear to suggest that an element of aggression, hostility or subterfuge is required against the original owner, but an examination of the context makes it clear that this is not so. It is used as a convenient label only, in recognition simply of the fact that the possession is adverse to the interests of the paper- owner of the land or, in the case of registered land, of the registered proprietor.6 Trivial acts will not be sufficient, since exclusive control is essential to establish adverse 4 S Panesar, "The importance of possession in the common law tradition", Coventry Law Journal, Cov LJ 2003, 8(1).

5

Powell v McFarlane (1977) 38 P & CR 452.

6

JA Pye (Oxford) Holdings Ltd v Graham [2000] Ch 676.

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   34/75 possession and also because a presumption operates till dislodged that the paper- owner of the land remains in possession of the land.7 23.10). Apart from showing factual possession, a squatter must establish the requisite intention i.e. an intention for the time being to possess the land to the exclusion of all other persons, including the owner. 8 The required intention must be determined objectively i.e. the intent has to be inferred from the acts themselves, and evidence of the squatter's past or present declarations as to his intention is regarded as self-serving. 9 A squatter must manifest the required intention unequivocally, so that it is clear that the squatter is not just a persistent trespasser. Unequivocal acts are acts that show an intention to exclude the owner. They are likely to be acts of exclusive physical possession rather than acts which, while associated with ownership, are of a more marginal character and might be equally consistent with an intention to profit or derive some enjoyment from the land.10 If the squatter's acts are equivocal, he will not be treated as 7 Boosey v Davis (1987) 55 P & CR 83.

8

Buckinghamshire County Council v Moran [1990] Ch 623. 9 Powell v McFarlane (1977) 38 P & CR 452.

10

S Nield, Hong Kong Land Law (Longman, 2nd ed, 1998).

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   35/75 having the requisite animus possidendi.11 Whether an act is equivocal or unequivocal depends on the circumstances of the case, while some acts are more likely to be regarded as unequivocal. Acts such as fencing; building of permanent structures; full-scale farming; cultivation of the land by way of ploughing and harvesting are more likely to be regarded as unequivocal than grazing; the harvesting of the natural produce of the land, or the erection of temporary structures.12 In cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation then those acts will be insufficient to establish the intention to possess.

23.11). The kind of conduct that suggests possession and the intention to exclusively possess varies with the type of land in question. 13 Enclosure is the strongest possible evidence of adverse possession,14 but is not necessarily conclusive. Trivial acts will not be sufficient, since exclusive control is essential to establish adverse possession and also because of the 11 C Harpum (ed), Megarry & Wade: The Law of Real Property (Sweet & Maxwell, 6th ed, 2000). 12 S Nield, Hong Kong Land Law (Longman, 2nd ed, 1998).

13

Wuta-Ofei v. Danquah [1961] 1 WLR 1238.

14

Seddon v. Smith (1877) 35 LT 168.

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   36/75 presumption that the paper- owner of the land remains in possession of the land.15 In addition, a squatter himself has no need to be in physical possession of the land; it suffices if a squatter grants a tenancy or licence and his tenant or licensee possesses the land on his behalf. 16 Where a squatter has proved factual possession, the mere fact that the true owner asks the squatter to leave does not terminate the squatter's possession.17 23.12). Occasional use of the real property by others does not destroy a claimant's exclusivity.18 The claimant may permit others (such as guests, invitees, and even occasional trespassers) to come onto the real property. However, the claimant must not have shared possession and control of the real property with the true owner or anyone else (other than those to whom the claimant gives permission to use the real property, such as an invitee or guest).19 Conversely, if the purported adverse possessor allowed guests and invitees onto the land (but not the true owner), the 15 Boosey v. Davis (1987) 55 P & CR 83.

16

Wong Kar Sue & Ors v. Sun Hung Kai Properties Ltd & Anor [2006] 2 HKC 600. 17 C Harpum (ed), Megarry & Wade: The Law of Real Property (Sweet & Maxwell, 6th ed, 2000). 18 39 AM. JUR. PROOF OF FACTS 2D, Acquisition of Title to Property by Adverse Possession § 6 (2010). 19 39 AM. JUR. PROOF OF FACTS 2D ,Acquisition of Title to Property by Adverse Possession § 6 (2010). Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   37/75 claimant could establish exclusive possession because the guests and invitees were given permission by the claimant in a manner similar to how a true owner would act vis-à-vis granting others the right to come onto the land.

23.13). Time will continue to run against the owner until the squatter vacates the land or acknowledges the owner's title or a writ for possession is issued.20 23.14). The public's general impression of adverse possession is that of an aggressive squatter whose wrongful possession is eventually validated by the passage of time. However, adverse possession is applicable to other situations also as has been mentioned in a report of the English Law Commission (Land Registration Bill and Commentary (2001, Law Com No 271)).

23.15). The more typical case in practice is the landowner who encroaches on a neighbour's land. Adverse possession can be invoked also to resolve a defect in title caused by failure to execute a formal conveyance as was recognized in "Bridges v. Mees" [1957] C 475.

20 Mount Carmel Investments Ltd v. Peter Thurlow Ltd [1988] 1 WLR 1078. Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   38/75 23.16) A list of defenses to Adverse Possession may be enumerated as follows:

a) Permissive Use - If the actual owner has granted the claimant permission to use the property, the claim of "adverse possession" cannot be deemed "hostile" and thus fails.

b) Public Lands - Government-owned land is exempt from adverse possession.

c) Insufficient Acts - Although it is conceded that the claimant engaged in some use of the property, it is alleged that these acts were not sufficient to amount to acts suggesting a claim of ownership.

d) Non-Exclusive Use - Although it is conceded that the claimant engaged in some use of the property, it is alleged that others (usually the property owner) also used the property in a manner consistent with that of the landowner.

e) Insufficient Time - Even if various elements of adverse possession were met, it is alleged that the adverse possession didn't last for the full statutory period, or that the adverse possession was interrupted by a period of non-use.

HISTORICAL ORIGINS OF THE CONCEPT OF ADVERSE Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   39/75 POSSESSION 23.17). The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim the right of "seisin" from his ancestry. Many felt that the original law that relied on "seisin" was difficult to establish, and around 1623, a statute of limitation was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time-consuming and costly. The doctrine was also created to prevent the waste of land by forcing the owners to monitor their property of suffer the consequence of losing title. The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in the early American periods to cure the growing number to title disputes. It was later adopted in almost all civil law and common law jurisdictions with difference in the number of prescribed years of uninterrupted, open and hostile possession of a squatter. Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   40/75 STATUTORY RECOGNITION OF ADVERSE POSSESSION AND THE NATURE OF THE TITLE ACQUIRED BY A SQUATTER BY WAY OF ADVERSE POSSESSION 23.18). Section 3 of the Limitation Act, 1963 stipulates that a Court will not take cognizance of any suit, which is barred by limitation even if the issue of limitation is not taken as a defence. Thus, the law of limitation ordinarily bars the remedy but not the right.

23.19). However, Section 27 of the Limitation Act, 1963 is an exception to the general principle of law of limitation and it constitutes the bedrock of the concept of adverse possession in India. According to it, if a person fails to file a suit for recovery of possession, within the prescribed period of limitation as mentioned in Article 65 of the Schedule appended to the Limitation Act, his right to recover the possession of that property is also extinguished. If such a situation occurs, a true owner extinguishes not only his remedy but also his ownership right over the property. The statutory period for adverse possession varies greatly by jurisdiction. The statutory period ranges from a few years in some states to several decades in other Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   41/75 states. To acquire prescriptive title, a person must allege open, hostile, notorious uninterrupted possession of a property for 12 years. 23.20). The purpose of statutes of limitation as well as the legal recognition given to adverse possession, was explained in "Adnam v. Earl of Sandwich"21 as under:

"The legitimate object of all Statutes of Limitation is no doubt to quiet long continued possession, but they all rest upon the broad and intelligible principle that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for so long a time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties ... ."

23.21). On the basis of his adverse possession and the lack of a better title (as title is a relative concept), a squatter will hold a new estate which is subject to any third party rights which run with the land and have not been extinguished, such as easements and restrictive covenants. 22 Even 21 (1877) 2 QBD 485.

22

C Harpum (ed), Megarry & Wade: The Law of Real Property (Sweet & Maxwell, 6th ed, 2000); Re Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   42/75 before extinguishing the paper- owner's title, a squatter acquires an inchoate or incipient title which is good against the world, except against those who can prove a better title. 23 The squatter can even sue a trespasser for trespassing and strangers in nuisance.24 23.22 POLICY JUSTIFICATIONS IN SUPPORT OF ADVERSE POSSESSION

a) Productive Use and "Sleeping" Rights:-

a.1). Real property should be used in a productive manner so as to benefit society as a whole.25 This theory holds that society will reap the benefit when a party (whether it be the true owner or a trespassing user) makes productive use of the land.26Accordingly, where the true owner of real property allows the land to remain undeveloped, one can argue that society as a whole is harmed. Where land sits idle and undeveloped, it necessarily is not being used for the production of food, the raising of Nisbet & Potts' Contract [1906] 1 Ch 386.

23

Gray and Gray, Elements of Land Law (Butterworths, 3rd ed, 2000). 24 Gray and Gray, Elements of Land Law (Butterworths, 3rd ed, 2000). 25 Stevie Swanson, Sitting on Your Rights: Why the Statute of Limitations for Adverse Possession Should Not Protect the Couch Potato Future Interest Holders, 12 FLA. COASTAL L. REV. 305, 308 (2011). 26 Stevie Swanson, Sitting on Your Rights: Why the Statute of Limitations for Adverse Possession Should Not Protect the Couch Potato Future Interest Holders, 12 FLA. COASTAL L. REV. 305, 308 (2011). Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   43/75 livestock, the production of goods, or the provision of services. Accordingly, this theory holds that undeveloped land has no true benefit to society in general. This theory argues that adverse possession promotes economic development and, therefore, benefits society as a whole because it reallocates title from the idle true owner to the trespassing active user. 27 Stated differently, "adverse possession favors the productive thief over the idle true owner."28 There is, on this view, no usurpation--no "private taking"--but simply the natural defeasibility of the owner's right to possess where he fails to take action, thus leaving the adverse possessor's right to possess that much stronger.29 As per this justification for adverse possession, we do not have a thief one minute and an owner the next, but rather someone whom the law recognizes as having a right to possess before the statutory period expires, and an even stronger right to possess thereafter. 30 27 Stevie Swanson, Sitting on Your Rights: Why the Statute of Limitations for Adverse Possession Should Not Protect the Couch Potato Future Interest Holders, 12 FLA. COASTAL L. REV. 305, 308 (2011). 28 Stevie Swanson, Sitting on Your Rights: Why the Statute of Limitations for Adverse Possession Should Not Protect the Couch Potato Future Interest Holders, 12 FLA. COASTAL L. REV. 305, 308 (2011). 29 Lee Anne Fennell, Efficient Trespass: The Case for "Bad Faith" Adverse Possession, 100 NW. U. L. REV. 1037, 1064 (2006).

30

Katz, L. (2010), "The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law", McGill Law Journal, 55(1), 47-80.

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   44/75 a.2). As a corollary to the productive use theory, scholars also point to the "sleeping" theory as a public policy basis for the doctrine of adverse possession.31 Under the sleeping theory, adverse possession acts as a penalty or punishment for those who "sleep" on their rights by failing to make productive use of their real property. 32The sleeping theory contends that adverse possession is justified on the basis that it reallocates real property from the wrongdoer (the sleeping, true owner) to a trespassing user who is making productive use of the land.33 Similar to the productive use theory discussed in the preceding paragraph, the sleeping theory is based on the utilitarian premise that real property should be put to productive use for the benefit of society as a whole. The productive use theory and the sleeping theory elevate the productive, trespassing user over the rights of the true owner.

a.3). Apparent utilitarianism can be stated to have held the moral paradox of adverse possession at bay for some time. So long as adverse 31 Stevie Swanson, Sitting on Your Rights: Why the Statute of Limitations for Adverse Possession Should Not Protect the Couch Potato Future Interest Holders, 12 FLA. COASTAL L. REV. 305, 308 (2011). 32 Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 GEO. L.J. 2419, 2434-55 (2001). 33 Lee Anne Fennell, Efficient Trespass: The Case for "Bad Faith" Adverse Possession, 100 NW. U. L. REV. 1037, 1064 (2006).

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   45/75 possession performed an important service (e.g., rooting out stale claims, third party reliance, or the improved efficiency of land use), the moral incoherence of adverse possession was suffered.

a.4). While the productive use/ utilitarian theory and the "sleeping rights" theory may have been legitimate justifications for the doctrine of adverse possession in post-feudal England and frontier America, such theories are at odds with the values held by modern society. As scholars have argued, "there is little justification today for legal rules that force the use of land. In several ways, the law has recognized that productive use of land can be undesirable."34 We, as a society, no longer hold as a virtue one's ability or right to make the most intensive or productive use of one's land. On the contrary, modern law more often favors the preservation, not the development, of real property. With the primary policy justification in support of the doctrine of adverse possession (i.e., to promote the productive use of real property and to punish the idle landowner) no longer being an important societal value, the case for the continuance of adverse possession is greatly diminished. In fact, modern societal values actually 34 Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 GEO. L.J. 2419, 2434-55 (2001). Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   46/75 disfavor the productive use of land. Rather than encouraging the productive use of land, the law now encourages its preservation and conservation.

a.5). In a paper titled "The Moral Paradox of Adverse Possession:

Sovereignty and Revolution in Property Law", authored by Larissa Katz and published in McGill Law Journal, the author had a very interesting analogy to draw qua the concept of adverse possession and she has beautifully captured the moral paradox underlying the concept of adverse possession. She states that the morality of adverse possession is found where we might least expect it: in its positivist strategy of ratifying the claims to authority of a squatter without regard to the substantive merits of her agenda or her personal virtue. In her opinion, the law of adverse possession produces a radical transformation in the position of squatters pre- and post-limitation period, in some cases turning land thieves into owners. She states that a new analogy for understanding the role of an adverse possessor was not as a land thief nor as a deserving labourer, but rather as something akin to the leader of a bloodless coup d'état.35 She says 35 Katz, L. (2010), "The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law", McGill Law Journal, 55(1), 47-80.

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   47/75 that a successful adverse possessor assumes the mantle of ownership for much the same reason that a successful coup d'état produces a government whose authority to rule is undiminished by the initial illegality of its path to power. She opines that adverse possession solves the moral problem of agenda-less objects just as the recognition of the existing government (whatever its origins) solves the moral problem of stateless people. The possibility of social order requires that someone wield ownership authority in the former case, and public authority in the latter. In her opinion, the character of an adverse possessor does not merely circumvent the authority of the original owner but rather displaces it by asserting his own claim to authority. The adverse possessor claims exclusive and supreme authority, as does a new government, whatever its origins. She says that this explains the public nature of an adverse possessor's authority. His claim amounts to a challenge to the owner's position of authority through the assertion of his own authority, which is necessarily a public act. She further reasons out that the analogy between adverse possession and a coup d'état helps to clarify the significance of the retroactive nature of the claim that the squatter makes. An adverse possessor and the leader of a coup d'état Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   48/75 undergo a transformation once they succeed in displacing the existing authority. The adverse possessor becomes owner, and the leaders of a coup d'état become the new government. This transformation is retroactive: just as a new government's legitimacy is immune from challenge on the ground that it came to power illegally, so too is an owner immune from challenge on the ground that she once was an adverse possessor. 36 We look back and retroactively construe the squatter as the owner from the outset just as we construe the leaders of the coup as the government from the moment they have acquired effective authority.37 She adds that the difficulty in ascertaining the original owner's and the former government's loss of authority (but also the importance of so doing) explains why there is a time lag in the law's validation of the squatter's and the new government's authority.38 The squatter must establish that the owner lacks effective authority on day one but then must still wait out the time period set by the statutory period before the law recognizes that she has taken over from the 36 Katz, L. (2010), "The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law", McGill Law Journal, 55(1), 47-80.

37

H.L.A. Hart, The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994). 38 Katz, L. (2010), "The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law", McGill Law Journal, 55(1), 47-80.

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   49/75 original owner. This period is necessary to determine whether the original owner has in fact failed to exert effective authority from day one. As she concludes, she tries to briefly capture the justification behind legal recognition to the concept of adverse possession for centuries, in the following terms:-

"The function of ownership to coordinate uses of an object would be unfulfilled in that case. When there is a vacancy in the position of owner (because there is no one with effective authority), we are thrust back into a mini "state of nature" in our relations with respect to that object. The law of adverse possession is just one way of ensuring that there is always someone in charge in the eyes of the law, and thus no destabilizing vacancies. This is why the law validates the adverse possess."

a.6). She also states that:-

"the aim of adverse possession is not to ensure that the most deserving user of the object owns it any more than a system of property generally guarantees that any particular owner has the best moral claim to own that particular thing. The morally relevant aspects of a squatter's claim concern not the abuses of the original owner or her failure to set a Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   50/75 sufficiently valuable agenda, but rather the original owner's failure to occupy fully the role of owner. I thus make no attempt to vindicate the adverse possessor on the basis of her moral standing as a conscientious revolutionary, one who stands outside the legal system to resist the bad exercise of authority by others. There are cases outside the law of adverse possession where squatters or others who challenge the owner's authority do so in the manner of a revolutionary. The demands of a property outlaw, like those of the revolutionary, are not just to be put in the place of the owner but rather are for institutional change--change to what can be owned privately, change to how we define the scope of an owner's authority, and change to the way in which entitlements are distributed. In the case of the property outlaw, the attack goes much deeper than a disagreement about the use to which the current owner puts the land. It is an attack on the very institutions that support the owner's authority to do as she does. The property outlaw appeals to moral reasons to justify her attack on the system of property much as the conscientious revolutionary does for her attack on existing government. The property outlaw, however, is not the paradigmatic case of the adverse possessor, and we need not Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   51/75 justify adverse possession on similar moral grounds."

b) Improving Certainty and Marketability:-

b.1). The second category of policy justifications in support of the doctrine of adverse possession focuses on how the doctrine facilitates the certainty of ownership and improves the marketability of title to real property.39 Adverse possession protects the party who is in possession by barring lawsuits based on aged claims of ownership. If a party has occupied a parcel of real property for ten or twenty years, that should be long enough for the true owner to bring a claim to oust the party in possession. By establishing this certainty of ownership, title to the real property becomes more marketable, conveyances of real property can be accomplished with more certainty and ease, the parties in possession of real property will have more incentive to make investments in the land, and owners will likely feel more secure in their property rights.40 b.2). In the modern world, the doctrine of adverse possession has the exact opposite impact as that put forth by the second policy justification. 39 Teis v. Ancaster (Town of) (1997), 35 O.R. (3d) 216.

40

Mueller v. Lee (2007), 59 R.P.R. (4th) 199.

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   52/75 In modern times, adverse possession actually makes title to real property less certain because it provides an avenue for one to gain title to real property outside of the established recording system. 41 With the second policy justification (i.e., to improve the certainty of ownership and the marketability of title) having lost importance in light of the modern system for recording title to real property, the case for the continuance of adverse possession is, again, significantly weakened.

c) Remedying Errors and Boundary Uncertainties:-

c.1). The third category of policy justification in support of the doctrine of adverse possession focuses on how the doctrine aids in remedying errors and resolving uncertainties in property boundaries. 42 As any real estate practitioner can attest, mistakes in legal descriptions of real property are relatively common. Typographical errors occur on a relatively frequent basis. Correct legal descriptions are not always attached to conveyance documents before they are recorded. Boundary lines between properties are not always clear. Surveys of real property are not exact. The 41 Teis v. Ancaster (Town of) (1997), 35 O.R. (3d) 216.

42

Beaulane Properties Limited v. Palmer, [2005] EWHC 817. Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   53/75 doctrine of adverse possession facilitates the correction of these defects and errors by awarding title to the party who has been in possession of the property for the requisite statutory time period. As best stated by scholar and law professor Jeffrey Evans Stake, "were it not for the doctrine, people would more often lose the land on which they were living."43

d) Adverse Possession as an Agent of Social Change:-

d.1). The fourth policy justification in support of the doctrine of adverse possession is based on a social justice theory, which posits that adverse possession can, and should, be used as an agent of social change. Under this theory, property is viewed as an allocation of resources rather than as an inherent right or a legal relationship between persons and real property.44 23.23). The 'great' purpose of adverse possession as described by a jurist Henry W. Ballantine in his article "Title by Adverse Possession," is automatically to quiet all titles which are openly and consistently asserted, 43 Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies (New York: Foundation Press, 2007).

44

H.L.A. Hart, The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994). Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   54/75 to provide proof of meritorious titles and correct errors in conveyancing". 23.24). Another justification for the law of adverse possession is captured in the quote that possession is "nine points of the law". The moral justification of the law of adverse possession was graphically stated by Justice O.W. Holmes who said "man like a tree in the cleft of a rock, gradually shapes his roots to the surroundings, and when the roots have grown to a certain size, can't be displaced without cutting at his life". ADVERSE POSSESSION AS DESCRIBED AND VIEWED BY THE HON'BLE SUPREME COURT OF INDIA AND THE HON' BLE HIGH COURTS 23.25). In "Annasaheb v. B.B.Patil", AIR 1995 SC 895, the Hon'ble Supreme Court of India held that:-

"Adverse possession means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, 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 Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   55/75 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. 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."

23.26). In "Karnataka Board of Wakf v. Govt. of India" (2004)10 SCC 779, it was held by the Hon'ble Supreme Court that:-

"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."

23.27). In "T. Anjanappa & others v. Somalingappa & another"

(2006)7 SCC 570, it was held that:-

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   56/75 "It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements 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. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the formers hostile action."

23.28). In "Chatti Konati Rao and others v. Palle Venkata Subba Rao"

(2010) 14 SCC 316, it was held:-

"In view of the several authorities of this court, few whereof have been referred above, what can safely be said is that were possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   57/75 title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter."

23.29). In "Bhim Singh and others v. Zile Singh & others", AIR 2006 PH 195, it has been held that adverse possession can only be used as a shield/defence and not as a weapon of offence. It is very much clear that claim of ownership by adverse possession can be made only by way of defence when arrayed as defendant in proceedings against him. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. No declaration can be sought by a plaintiff with regard to his ownership on the Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   58/75 basis of an adverse possession. It was held that:-

"Under Article 64 of the Limitation Act, as suit for possession of immovable property by a plaintiff, who while in possession of the property had been dispossessed from such possession, when such suit is based on previous possession and not based on title, can be filed within 12 years from the date of dispossession. Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein, based on title, can be field by a person claiming title within 12 years. The limitation under this Article commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of adverse possession is a defense available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein, in column 3 it has been specifically mentioned when the possession of the Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   59/75 defendant becomes adverse to the plaintiff. Thus, a perusal of the aforesaid Article 65 shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession."

23.30). In "Gurdwara Sahib v.Gram Panchayat Village Sirthala and another", (2014) 1 SCC 669, it was held by the Hon' ble Supreme Court that:-

"There cannot be any quarrel to this extent that the judgments of the courts, below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defense."

23.31). There is a catena of judicial pronouncements by Indian Courts on the doctrine of adverse possession.45 45 "Secretary of State for India v. Debendra Lal Khan" AIR 1934 PC 23; "P. Lakshmi Reddy v. L. Lakshmi Reddy" AIR 1957 SC 314; "S.M. Karim v. Bibi Sakina" AIR 1964 SC 1254; "R. Chandevarappa & Others v. State of Karnataka & Others" (1995) 6 SCC 309; "D. N. Venkatarayappa and Another v. State of Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   60/75 Critical Appraisal of the Law on Adverse Possession and the plea to have a fresh look 23.32). The tide in favour of the concept of adverse possession appears to have reversed and there has been a perceptible shift in the law's attitude to the squatter. It can be stated unhesitatingly that there is a rising moral outrage towards squatters who acquire title to land through the doctrine of adverse possession. Of late however, a perception has been gaining traction that the law on adverse possession is difficult and full of vagaries. 23.33). Henry Sumner Maine wrote in 186146 that "prescriptions were viewed by the modern lawyers, first with repugnance, afterwards with reluctant approval". Many legal scholars and jurists across the world have pleaded for abolition of the concept of adverse possession, describing it as a form of legalized land theft and a means of unjust enrichment. 23.34). The deliberate squatter has come to be cast in the judicial Karnataka and Others" (1997) 7 SCC 567; "Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Others"

(2004) 1 SCC 271; "Saroop Singh v. Banto" (2005) 8 SCC 330; "Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak" (2004) 3 SCC 376); "M. Durai v. Muthu and Others" (2007) 3 SCC 114; and "Kshitish Chandra Bose v. Commissioner of Ranchi" AIR 1981 SC 707. 46

Ancient Law (New York: Henry Holt & Co., 1888).

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   61/75 imagination as a land thief to whom protection is offered only reluctantly, with a utilitarian's eye to the larger ills avoided by doing so. Increasingly it is being considered that a deliberate squatter ought not to be given the benefit of adverse possession as it promotes land grabbers and encroachers and confers legitimacy to deliberate trespass. It is being held that the act of the deliberate squatters is an attack on the security of ownership and is hence, morally reprehensible.47 23.35). Professor Richard Epstein has commented that bad faith adverse possessors are "both bad people in the individual cases and a menace in the future."48 23.36). Scholar Richard Helmholz has stated that "there is something wrong in claiming land when one has known all along that it belonged to someone else. It is impossible not to feel differently about such bad faith possessors than one does about claimants who have made an honest 47 Katz, L. (2010), The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law. McGill Law Journal, 55(1).

48

Richard A. Epstein, Past and Future: The Temporal Dimension in the Law of Property, 64 WASH. U. L.Q. 667, 686 (1986). (as quoted in Katz, L. (2010), The Moral Paradox of Adverse Possession:

Sovereignty and Revolution in Property Law. McGill Law Journal, 55(1)). Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   62/75 mistake and relied upon it."49 23.37). Professors Carol Necole Brown and Serena Williams, authors of a convincing article calling for the abolition of adverse possession in its entirety, argue that, "the law should apply a sharp distinction between ownership and possession, treating trespassory possession as only a fact and not a right capable of ripening into ownership. They further argue that the "anachronistic doctrine" of adverse possession should be abolished in all situations, whether the trespass was a good faith mistake or intentional, because possession is no longer the best indication of ownership of real property. 50 23.38). In the case of "State of Haryana v. Mukesh Kumar and Others", (2011) 10 SCC 404, it was held that:-

"People are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such 49 Richard H. Helmholz, More on Subjective Intent: A Response to Professor Cunningham, 64 WASH. U. L.Q. 65, 75 (1986)) (as quoted in Katz, L. (2010), The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law. McGill Law Journal, 55(1)). 50 Carol Necole Brown & Serena M. Williams, Rethinking Adverse Possession: An Essay on Ownership and Possession, 60 SYRACUSE L. REV. 583, 585 (2010). (as quoted in Katz, L. (2010), The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law. McGill Law Journal, 55(1)).

Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   63/75 theft is even authorized by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. Property right advocates argue that mistakes by landowners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest. This, in our opinion, is a testament to the absurdity of the law and a black mark upon the justice system's legitimacy...... And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of Parliament, then at least the law must require those who adversely possess land to compensate the title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors- some of whom may be poor- to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   64/75 a set range of rates so as to tailor the compensation to the equities of a given case. Parliament must seriously consider at least to abolish "bad faith" adverse possession i.e. adverse possession achieved through intentional trespassing, actually believing it to be their own could receive title through adverse possession, sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief. In case, Parliament decides to retain the law of adverse possession, Parliament might simply require the adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that the successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title. The Law of adverse possession, which ousts the owner on the basis of in action within limitation, is irrational, Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   65/75 illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of true owner. The law ought not to be benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. On the basis of above discussion it can be said that the Parliament should consider abolishing the law of adverse possession or at least amending and making substantial changes in the law in the larger public interest."

23.39). The unanimous opinion that is emerging across the legal fraternity is that though the doctrine of adverse possession should not be abolished it its entirety as it continues to be a sometimes-effective tool in furthering the marketability of real property by quieting title and curing minor title defects51; useful tool in curing uncertainties in boundary lines and errors in legal descriptions; sometimes helps in promoting the marketability of real property by preventing frivolous, stale claims of ownership, the doctrine of adverse possession must be reformed to the extent necessary to prevent it from being used by intentional trespassers 51 Kristine S. Cherek, From trespasser to home owner: The case against adverse possession in the post- crash world, Virginia Journal of Social Policy & the Law [Vol. 20:2]. Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   66/75 who seek to take title to real property without right, and without compensating the true owner.

23.40). This is the existing law pertaining to adverse possession. I, after perusing the judicial record and giving my thoughtful consideration to the evidence adduced by the plaintiffs, think that the plaintiffs have failed to prove adverse possession over the suit property. I say so on account of multiple infirmities and discrepancies in the plaintiffs' testimonies discussed herein under.

23.41). Plaintiff no. 1 in her cross examination first stated that she had migrated to India from Pakistan in the year 1947 and later stated that she was born in India and it was her husband who had migrated to India from Pakistan. This appears to be an improvisation done by the plaintiff no. 1 to correct the slip. Though she stated that her husband i.e. plaintiff no.2 had been staying in the suit property ever since 1947, at the same time she admitted that till date the suit property had not been mutated in her husband's name or her name. She admitted that she hadn't been cultivating the suit property since 1947 and it had been wrongly stated so in her affidavit of evidence. This discrepancy in the oral version of the plaintiff Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   67/75 no.1 from the version given in the affidavit of evidence filed by her greatly erodes the credibility of the plaintiff no.1's deposition. It is also to be noted that plaintiff no.1 has also stated that she didn't know the contents of her affidavit of evidence. This admission of the plaintiff no.1 taints the entire testimony given by her in Court. Also the fact that she as well as the plaintiff no.2 admitted that the Patwari had not recorded the cultivation in the khasra girdawari in their names casts a long shadow of doubt on the credibility of the plaintiffs' case and compels me to view their version with spectacles tinged with skepticism and incredulity. The plaintiffs' conduct in not filing any complaint before the concerned authority regarding this is rather unnatural. Had their version about cultivating the suit property been genuine they would definitely have approached the Revenue Authorities in this regard. Having failed to do so, the version propounded by the plaintiffs is greatly improbabalised. Though the plaintiffs have stated that in order to get the land mutated in their names, they had written to the Patwari of Village Kapashera around 10 years back, they hadn't pursued the same later. I fail to understand why the plaintiffs didn't follow up their request with the concerned official like any person having a genuine cause Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   68/75 would. Further, even the plea of the plaintiffs that they were refugees from Pakistan fails to inspire confidence in the absence of tangible documentary proof. Mere averment to this effect is not proof. The plaintiffs have failed to furnish a plausible and convincing explanation as to why they had not got their names enrolled in the Refugee List and why had they not approached any Government Authority in this regard. The plaintiffs' have also failed to show conclusively that the lease originally executed in favour of Abdullah and Sons in the year 1927 (for a period of thirty years had been extended upto 90 years after 1957). The plaintiffs' have failed to prove that the suit land hadn't become Nazul land (Land vested in the State) after 1957 when no fresh application for renewal of Lease was made. Hence, the plea of the plaintiffs that they were claiming possession adverse to Abdullah and Sons and not the Government falls flat in the face and is totally bereft of any merit and substance. The defendants have in contrast placed number of documents on record to disprove the plaintiffs' case. They have filed the copy of the lease deed executed in 1927 to show that the lease in favor of Abdullah and Sons was only for thirty years and renewable later on at the option of the lessee upto 90 years. The same was Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   69/75 to be renewed at the request and cost of the lessee. Since no request was made by Abdullah and Sons after 1957, the land stood vested in the State/ Government of India. Further the extract of the GLR also greatly substantiates the claim of the defendants. The dispute between defendant nos. 1 & 2 and defendant no.3 is a dispute between two instrumentalities of the State. That needs a separate determination and this suit is not the appropriate forum to decide the rival claims of defendant no. 1 & 2 and defendant no.3. This dispute alone will not confer proprietary title on the plaintiffs. Also, I would like to state that by merely sending letters to different Governmental Authorities and State Dignitaries, the plaintiffs cannot establish their proprietary claims. If such documents were to be believed to confer title on a party, a rather dangerous precedent would be set and government offices would be flooded with such letters. These practices have to be deprecated in the strongest manner possible. Thus, in light of the discussion above, it can be said without any demur or reservation that the plaintiffs have failed abysmally to prove their case and the same deserves a dismissal with these observations. 23.42). Considering the fact that the Union of India is the owner of the Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   70/75 land now, no injunction can anyways be issued against either of the defendants as they are instrumentalities of the State themselves and as is settled law no injunction can be issued against the real owner. This is also a very strong ground for rejecting the plaintiffs' prayers. 23.43). These two issues are accordingly decided against the plaintiffs and in favour of the defendants.

23.44). I would also like to state that the plaintiffs' case also deserved an in limine dismissal as the plaintiffs have not approached the Court with clean hands. The unauthorized construction in the suit property which has been admitted by the plaintiff no.1 in her cross examination shows that the conduct of the plaintiffs was itself sullied. Having indulged into such inequitable and illegal conduct, the plaintiffs could not have approached the Court for seeking the discretionary and equitable relief of declaration and permanent and mandatory injunction. There is a discrepancy in the date of birth of the plaintiff no.2 in the photocopies of ration cards filed by him. At one place he is shown to be born in 1937 and in another he is shown to be born in 1946. This discrepancy has not been explained by the plaintiffs and further casts a doubt on the genuineness of the plaintiffs' Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   71/75 case. For these reasons too, the version of the plaintiffs' is discarded.

24). Findings on the issue:- "Whether the suit of the plaintiff is hit by Section 80 of CPC? OPD"

24.1) Considering the fact that the plaintiffs had already written to the defendants on several occasions asserting proprietary title over the suit property, the defendants had knowledge about the impending action and plan of the plaintiffs. Hence, it cannot be said that the defendants were caught off guard. The correspondences exchanged between the plaintiffs and the defendants prior to the institution of the present suit were sufficient notice to the latter and the underlying purpose of notice under Section 80 CPC had been met.

24.2). Hence, the said issue is decided against the defendants and in favour of the plaintiffs.

25). Findings on the issue:- "Whether the suit of the plaintiff is bad for non- joinder of a necessary party? OPD"

25.1). This issue is a technical issue per se. The plaintiffs had already impleaded the government instrumentalities that were directly associated with the dispute. Though, Union of India might be said to be a proper party Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   72/75 to the present lis, it cannot be considered a necessary party without whose impleadment, the suit would have failed.

25.2). Hence, this issue is decided against the defendants and in favour of the plaintiffs.

26). Findings on the issue:- "Whether the suit of the plaintiff is properly valued for the purpose of Valuation and Court Fees? OPD" 26.1). The onus of proving this was on the defendants and the defendants have not brought on record any material to show the present market worth of the suit property and hence, in the absence of material to prove that the market value of the suit property was beyond the pecuniary jurisdiction of the Court, I eschew from giving any finding on this issue.

27). In light of the foregoing discussion, the present suit is dismissed. Given the fact that the plaintiffs are unauthorized squatters on the suit property, I deem it fit to impose a cost of Rs. 10000/- on the plaintiffs who have filed the present suit with devious intent to grab government land. Decree Sheet be prepared accordingly.

28). Before parting I would like to make a general observation not just pertaining to the case at hand. Of late, there have been many reported Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   73/75 instances of land-sharks trying to grab government properties on account of the spiraling property prices. These deliberate squatters encroach upon government land and start asserting proprietary claims over the same. Such deliberate encroachers need to be dealt with sternly. It is also the need of the hour that the concept of adverse possession is given a drastic over haul so as to not give impetus to land grabbers and deliberate squatters. The law makers need to recognize the moral paradox underlying the concept of adverse possession and they need to make amendments in law to differentiate between bonafide claimants and deliberate/ malafide/ bad faith squatters. In the instant case, considering the fact that the suit property has been successively claimed by different people, one thing is established for sure that all the intervenors who filed the applications U/o I rule 10 CPC and also the plaintiffs have been making relentless efforts to grab a prime property belonging to the government. I also find it utterly preposterous that the plaintiffs have sought alternate plot of land from the government. If the government starts extending largess to people such as the plaintiffs, the government shall be pushing itself to the financial brink and shall also be losing vast tracts of land to these unauthorized squatters. Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   74/75 Such a scenario cannot be tolerated or countenanced by a court, whose duty it is to preserve nazul land against the depredations of land sharks.

29). The application of the plaintiffs under Order XXXIX Rule 2A CPC read with Section 12 of the Contempt of Court Act read with Section 151 CPC against the defendants for violating order dated 22.04.20007 is also dismissed in view of the above said observations. Considering the fact that the plaintiffs are themselves unauthorized occupants their prayer that the defendants be punished for contempt is also not made out. This application is an attempt by the plaintiffs to browbeat the defence personnel so that they don't initiate eviction drive against the plaintiffs. The defendants have already lodged complaints against the plaintiffs for raising unauthorized construction and the plaintiffs have themselves admitted that they raised unauthorized construction. Hence, for this reason too, their application warrants an in limine dismissal.

30). All pending applications (if any) are hereby disposed off as not pressed.

31). File be consigned to the Record Room after due compliance.

         Announced in the open court                                          HARSHITA VATSAYAN
         On 12.04.2018                                                        Civil Judge-06 (Central)
                                                                                Delhi/12.04.2018

      (This Judgment comprises of 75 pages and each page has been signed by me). Suit No. 96413/16 and Misc no. 60435/16    Gurvachan Kaur & Anr. v. Station Commandant  & Ors.   75/75