Delhi District Court
Sh. Devender Kumar vs Christopher Joseph on 27 August, 2014
: 1 :
IN THE COURT OF SHRI SIDHARTH SHARMA : ADDITIONAL DISTIRCT
JUDGE04 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No.57/13
In the matter of :
1 Sh. Devender Kumar
S/o Sh. Babu Ram,
R/o C21, Siddharth Nagar,
New Delhi - 14.
2 Ram Kailash,
S/o Late Shri Bhikku,
R/o 71/3, Siddharth Nagar,
New Delhi14 .......Plaintiffs
Versus
1 Christopher Joseph,
S/o Late Shri Joseph Ortho,
2 Rani @ Rahil,
W/o Sh. Christopher Joseph,
Both R/o :
781, Sunlight ColonyII.
Hari Nagar, Ashram,
New Delhi14. ........Defendants
Contd....1 of 28
: 2 :
Date of institution of the suit : 12.01.2011
Date reserved for judgment : 16.08.2014
Date of pronouncement of judgment : 27.08.2014
Suit for declaration, possession and permanent injunction
J U D G M E N T :
The plaintiffs have filed the present Suit for declaration, possession and permanent injunction.
2 Brief facts as averred in the plaint are that plaintiffs are owner of property bearing No.729, Sunlight ColonyII, Hari Nagar, Ashram, New Delhi (hereinafter referred to as 'suit property'). It is the case of the plaintiffs that originally the suit property was allotted to one F.S. Masih from J.J. & Slum Department, New Delhi in the year 1967 and after his death, the same devolved upon his wife Mrs. Faith Masih as the other LR'S of late F.S. Masih relinquished their rights in favour of Mrs. Faith Masih and the said Mrs. Faith Masih died on 15.01.2004 and her son Francis Masih became owner of the suit property by virtue of Will executed by Mrs. Faith Masih in favour of her son. It is the case of the plaintiffs that thereafter, they purchased the suit property on 10.07.2008 from Francis Masih vide registered GPA for consideration. 3 It is further averred in the plaint that late F.S. Masih, the original owner of the suit property permitted his sister (mother of defendant no.1) to live Contd....2 of 28 : 3 :
in the suit property out of love and affection in the year 1967. After death of the original allottee, his wife Mrs. Faith Masih sent legal notice dated 15.11.2000 to defendant no.1 to vacate the suit premises. Defendant no.1 instead of vacating the suit property started making construction due to which Mrs. Faith Masih filed a suit for injunction against defendant no.1 as well as two other persons. The said suit was finally decided on 05.04.2003 by Ms. Savita Rao, the then Ld. Civil Judge and the defendants herein were declared as unauthorized occupants and were also restrained from raising any unauthorized construction or creating any third party interest on the suit property The said judgment was not challenged by the defendants and, therefore, had attained finality. Thereafter, the defendants demolished the structure and left the plot vacant. It is the case of the plaintiffs that they paid the sale consideration to Francis Masih and took possession of the suit property on 10.07.2008 after execution and registration of GPA dated 10.07.2008. It is further averred in the plaint that defendants obstructed their raising construction in the suit property and they filed a suit for permanent injunction before the court of Sh. B.R. Bansal, the then Ld. Civil Judge who dismissed the application U/o XXXIX Rules 1 & 2 CPC holding that plaintiffs herein were unable to show their possession and defendants although declared unauthorized occupants by the court of Ms. Savita Rao, the then Ld. Civil Judge, Delhi but are in possession of the suit property and, therefore, no injunction can be granted. Thereafter, the plaintiffs withdrew the suit seeking liberty to file a fresh suit claiming appropriate reliefs which was granted by the Contd....3 of 28 : 4 :
Ld. Civil Judge and hence, present suit has been filed seeking declaration that plaintiffs be declared in possession of the suit property or in the alternative, it is prayed that in case the court is of the view that defendants are in possession of the suit property, then pass a decree of possession in favour of the plaintiffs and against the defendants with respect to the suit property. The plaintiffs have further prayed for a decree of permanent injunction restraining the defendants from creating any hindrance or obstacle in physical possession of the plaintiffs and their raising construction in the suit property.
4 The defendants were served who filed their appearance and WS. In the WS, it was admitted by the defendants that the suit property was originally allotted to late F.S. Masih by DDA. It was submitted that suit property was purchased by late Joseph Otho, father of defendant No.1 on 25.05.1970 for a consideration of Rs.5,000/ from late F.S. Masih. It was further admitted that defendants and late F.S. Masih were related to each other. It was further stated that father of defendant No.1 purchased the suit property and Agreement to Sell dated 25.05.1970 was also entered with original allottee for consideration of Rs. 5,000/ which was duly acknowledged and receipt dated 28.05.1970 was executed to show unauthorized possession. It is the case of the defendants that since the beginning, the defendants and his family members are in possession of the suit property and are having various documents including ration card, gas connection, electricity and water connections etc to show Contd....4 of 28 : 5 :
unauthorized possession. It was further averred in the WS that late F.S. Masih filed eviction petition against defendant no.1 and his mother namely Mrs. Shanti in the year 1985 before Ld. ARC, Tis Hazari Courts, Delhi. The said eviction petition lasted for 14 years and the same was dismissed on merits on 25.02.1999 by Sh. P.K. Saxena, Ld. ARC, Delhi. It is the case of the defendants that late Joseph Otho is the legal owner of the suit property and after his death, his wife Smt. Shanti became the legal owner who transferred the suit property in the name of her son (defendant no.1) by executing various documents and, therefore, defendant no.1 is the owner of the suit property. It was further averred the suit is liable to be dismissed being barred by limitation as the original owner never initiated any suit since 1970. The defendants admitted that in the suit of the plaintiffs decided by Ms. Savita Rao, the then Ld. Civil Judge they were declared unauthorized occupants and were directed not to create any third party interest or raise any construction in the suit property. However, they stated that proceedings were exparte and their lawyer did not inform them correctly about the same. They also admitted that they did not file any appeal against that judgment. In reply on merits, the contents of the preliminary objections were reiterated and they denied the case of the plaintiffs that late F.S. Masih or his legal heirs were owners of the suit property. They even challenged the locus standii of the plaintiffs to file the present suit as valid legal documents were not executed with respect to the sale of the suit property in their favour.
Defendants denied that they had vacated the suit property. In the light of above Contd....5 of 28 : 6 :
pleadings, the defendants have prayed for dismissal of the suit claiming them to be owners of the suit property.
5 The plaintiff filed replication reiterating the averments made in the plaint and denied the averments of the defendant made in the WS contrary to the plaint. It was stated that the eviction petition was dismissed as the defendants were held not to be tenants in the suit property. 6 On the basis of the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 28.09.2011 :
i. Whether the plaintiffs are entitled for a decree of declaration in favour of plaintiffs and against the defendants thereby declaring that the plaintiffs are in possession of the suit property bearing No. 729, Sunlight Colony, Hari Nagar, Ashram, New Delhi. (OPP) ii. Whether the defendants is an illegal occupant in the suit property bearing No.729, Sunlight Colony, Hari Nagar, Ashram, New Delhi. (OPP) iii. Whether the plaintiff is entitled for decree of possession of the suit property? (OPP) iv. Whether the suit is maintainable? (OPP) v. Relief
7 Subsequently an application was moved at the stage of final arguments by ld. Counsel for defendants under the provisions of Order 14 Rule 5 CPC for framing of additional issue. The said application was allowed and another issue framed vide order dated 06.05.14 " Issue No.5 : Whether the Contd....6 of 28 : 7 :
suit of the plaintiff is barred by limitation? OPD". The issue of 'Relief' shall be read as Issue No.6.
8 Thereafter, the matter was fixed for plaintiff evidence. In support of their case, the plaintiff no.1 examined himself as PW.1. Thereafter, the plaintiffs closed their evidence.
9 Thereafter, the matter was fixed for defendant evidence. In support of their case, the defendant no.1 examined himself as DW.1. They also examined Sh. Nathu Ram as DW.2. Thereafter, the defendants closed their evidence.
10 I have heard lengthy arguments of Ld. Counsels for both the parties and have carefully gone through the entire material on record.
MY ISSUEWISE FINDINGS ARE AS FOLLOWS ;
ISSUE NO.1 :
"Whether the plaintiffs are entitled for a decree of declaration in favour of plaintiffs and against the defendants thereby declaring that the plaintiffs are in possession of the suit property bearing No.729, Sunlight Colony, Hari Nagar, Ashram, New Delhi. (OPP)"
11 The burden to prove this issue was upon the plaintiffs. It is not Contd....7 of 28 : 8 :
disputed by the plaintiffs that defendant no.1 and his parents were in possession of the suit property since 1967. It also not disputed that original allottee late F.S. Masih had filed eviction petition before Ld. ARC, Delhi in the year 1985 and the same was dismissed in the year 1999. It is also not disputed that in the year 2003, a Local Commissioner inspected the suit property and came to the conclusion that possession is with the defendants. It is also not disputed that in the case before Ms. Savita Rao, the then Ld. Civil Judge, the wife of the original allottee namely Mrs. Faith Masih had filed the suit against the defendants for permanent injunction restraining them from raising construction in the suit property. Plaintiffs claimed that they had purchased the suit property by way of registered documents including GPA executed by son (coowner) of original allottee of late F.S. Masih in the year 2008. The present plaintiffs had filed an earlier suit for injunction against the defendants with the prayer that defendants be restrained from obstructing the construction raised by the present plaintiffs. In that case, Sh. B.R. Bansal, the then Ld. Commercial Civil Judge decided the application U/o XXXIX Rules 1 & 2 CPC wherein the relevant extracts of the said order are as follows :
"It is undisputed fact in the present case that initially property was owned by one F.S. Masih. Although as per plaintiff after the death of Sh. F.S. Masih, his wife Mrs. Faith Masih being the legal heir became the owner of the suit property and after the death of Mrs. Faith Masih, her son namely Francis Massey became the owner of the suit property from whom the petitioners have claimed that suit property in question. Though, the defendants have claimed that suit property was purchased by the Contd....8 of 28 : 9 :
father of the defendant no.1 from late F.S. Mashi in the year 1970 and after the death of father of the defendant no.1, the mother of the defendant no.1 became the owner of the suit property who has transferred the ownership rights in favour of defendant no.1 and as such the defendants came the owners of the property in question.
A perusal of the record reveals that rs. Faith Masih had filed a civil suit for permanent injunction in which defendant no.1 in the present was also one of the defendant. In that case, it was held by the then Civil Judge, Delhi vide order dated 05.04.2003 that the defendant no1 is unauthorized occupant in the suit premises and further that the defendant no.1 has also failed to establish that he became the owner of the suit premises. The said order dated 05.04.2003 has not been challenged by the defendant no.1 till date and same has attained finality. There is no dispute so far the filing of suit for permanent injunction by Mrs. Faith Masih against the defendant no.1 and passing of the order dated 05.04.2003.
Although, the plaintiffs have contended that they have received the vacant plot at the time of purchase of the property in the year 2008 but the plaintiffs have not stated that who had taken the possession of the suit property from defendant no.1 as to whether it was taken by the previous owner from whom the petitioners have purchased the property and in what manner, the petitioners came into possession of the suit property. There is nothing on record to show that defendants have handed over the possession of the suit property to Mrs. Faith Masih or to her son namely Francis Massey. Rather, the defendants have placed on record the photocopies of Election Icard, passport, BSES electricity bills, cooking gas receipts which shows prima facie that the defendants are in possession of the suit property. The defendants have also placed on record the photocopy of receipt of property tax which shows that the defendants are paying house tax in respect of the property in question.
In view of aforesaid documentary evidence placed on record by the defendants, prima facie it appears that the defendants are in possession of the suit property. On the other hand, the plaintiffs have not been able to show anything to prove Contd....9 of 28 : 10 :
that they are in possession of the suit property or that they have got the possession of the suit property i.e. Vacant plot at the time of purchase of the same. Therefore, the plaintiffs have failed to show even prima facie that they are in possession of the suit premises and the defendants are liable to be restrained from obstructing the plaintiffs in raising the construction in the suit premises because unless the plaintiffs are in possession of the suit premises, the question of raising construction by the plaintiffs and making obstruction by the defendants does not arise."
12 Similarly, defendants were declared to be unauthorized occupants of the suit property by Ms. Savita Rao, the then Ld. Civil Judge, Delhi. Defendants took similar defence in the present case that they are the owners of the suit property. However, neither before Ms. Savita Rao, the then Civil Judge, Delhi nor before this court they could prove any document as per requirement of the Transfer of Property Act as well as Registration Act in original so as to claim the title / ownership of the suit property. However, plaintiffs could also not prove that they or their predecessor in interest were in possession of the suit property as can be clearly seen by combined reading of judgments of Ms. Savita Rai, the then Civil Judge, Delhi and the order of Sh. B.R. Bansal, Ld. CCJ on the application U/o XXXIX Rules 1 & 2 CPC. The plaintiffs also could not prove any document herein to show that they are in possession of the suit property. In these circumstances, plaintiffs are not entitled to declaration that they are in possession of the suit property. Accordingly, this issue is decided in favour of defendants and against the plaintiffs.
Contd....10 of 28 : 11 :
ISSUE NO.2 :
"Whether the defendant is an illegal occupant in the suit property bearing No.729, Sunlight Colony, Hari Nagar, Ashram, New Delhi. (OPP)"
13 The burden to prove this issue was upon the plaintiffs. My attention has been drawn to the judgment of Ms. Savita Rao, the then Civil Judge, Delhi in a case filed by Mrs. Faith Masih against the defendants which is a suit for permanent injunction praying that the defendants should be restrained from carrying any illegal construction. In the said suit on 17.04.2001, a specific issue was framed i.e. "Whether the defendant is in unauthorized occupation of the suit premises". A categorical finding was given by the said court which is as under :
"There is uncontroverted testimony of PW.1 that premises in question (suit property herein) was given to the mother of the defendants as a licensee who started living in the premises. The contention of the defendant that he purchased the suit property in question vide Agreement to Sell from the husband of the plaintiff is not proved on record. Hence, after termination of the license, the status of the defendant in the suit property is nothing but that of unauthorized occupant."
14 The defendants did not challenge the aforesaid finding and thus, the same had attained finality. The present plaintiffs are claiming interest in property under the plaintiff therein, Mrs. Faith Masih. It was held in Ramrameshwari Devi and Others Vs. Nirmala Devi and Others, (2011) 8 Contd....11 of 28 : 12 :
SCC 249 as under :
"Civil Procedure Code, 1908 - Or. 14 R. 1 and S. 11 - Issue which may not be framed - Resjudicata - Issue on which adjudication in earlier round of litigation had attained finality - Determination of title of respondentplaintiff having attained finality in earlier round, issue regarding adverse possession of appellantdefendants, held, should not have been framed - Specific Relief Act, 1963, Ss. 5 and 6."
Accordingly, this issue is decided in favour of plaintiffs and against the defendants.
ISSUE NO.3 :
"Whether the plaintiff is entitled for decree of possession of the suit property? (OPP)"
15 The burden to prove this issue was upon the plaintiffs. Both, plaintiffs and defendants admit that late Sh. F.S. Masih was the original allottee of the suit property. It is claimed that the plaintiffs have purchased the suit property from the son of late F.S. Masih. Sh. F.S. Masih died in the year 1994 and his wife Mrs. Faith Masih on the basis of Will, Exb.PW.1/3 and Relinquishment Deed from the other legal heirs became the owner. Thereafter, Mrs. Faith Masih also died and her son Francis Massey became one of the co owners who sold the property in question on the basis of irrevocable GPA in favour of the plaintiffs. I have already held that defendants are in possession of the suit property but because of their being unauthorized occupants, the plaintiffs being holder of GPA from the coowner of the suit property is entitled Contd....12 of 28 : 13 :
to file the present suit of possession. The plaintiffs have been able to prove their registered GPA from coowner, Sh. Francis Massey, Exb.PW.1/1. The defendants could not prove their ownership by title as claimed by them. It is admitted that late Sh. F.S. Masih is the original allottee and plaintiffs purchased the property from his son Sh. Francis Massey who is the coowner. Therefore, in my opinion, plaintiffs are entitled to decree of possession. Accordingly, this issue is decided in favour of plaintiffs and against the defendants. ISSUE NO.4 :
"Whether the suit is maintainable? (OPP)"
16 The burden to prove this issue was upon the plaintiffs. Ld. Counsel for defendants has argued that suit is not maintainable as the plaintiffs have no locus standii to file the present suit. It is argued that plaintiffs cannot claim ownership or title on the basis of GPA dated 10.07.2008. It was further argued that since the plaintiffs had no physical possession of the suit property as recorded in GPA, therefore, he has no locus standii to file the present suit. He has relied upon the judgment cited as AIR 2012 SC 2006, Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana, wherein it was held that for transfer of any immovable property, registration of Sale Deed is the only option available. He has further argued that as there is no Sale Deed upon the plaintiffs U/s 202 of Indian Contract Act, it does not amount to any transfer of title.
Contd....13 of 28 : 14 :
17 Admittedly in this case, Sale Deed was never executed. Ld. Counsel for defendants claims that in the case of Suraj Lamp and Industries Vs. State of Haryana 2012 (1) SCC 656, it has been specifically held that no immovable property can be transferred only through valid registered documents. Admittedly in the case of Suraj Lamps, it was observed in para 19 that the observations in that case are not intended to in any way affect the validity of sale agreements and Power of Attorney.
In the case of Vikas Jain Vs. Naresh Kumar RFA NO.492/2001 decided on 08.02.2012, Hon'ble Delhi High Court observed as follows :
"5. The documents which were executed by Mr. Prem Chand Jain in favour of respondent / plaintiff dated 07.08.2000 were proved and exhibited before the trial court as Exb.PW.1/E (Agreement to Sell), general power of attorney (Exb.PW.1/B) and affidavit with respect to handing over of possession (Exb.PW.1/C) etc. I may state that the rights which are claimed on the basis of these documents arise under Section 53A of the Transfer of Propery Act, 1882 which gives rights in an immovable property pursuant to the doctrine pursuant to the doctrine of part performance. Rights are also created in the suit property in favour of the respondent/plaintiff as per Section 202 of the Contract Act, 1872, by which the power of attorney given for consideration is irrevocable. It is relevant to note that these documents were executed before the provision of Section 53A of the Transfer of Contd....14 of 28 : 15 :
Property Act, 1882 can only be claimed if the document is duly stamped and registered. It is relevant to note that the Supreme Court has preserved rights arising from the doctrine of part performance and an irrevocable power of attorney in the decision of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr., 183 (2011) DLT 1(SC) as per paras 12, 13 and 16 of the judgment."
In the case of Ramesh Chad Vs. Suresh Chand and Anbr., RFA NO. 358/2000 decided on 09.04.2012 by Hon'ble Delhi High Court observed as follows in para3, "A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator Contd....15 of 28 : 16 :
in terms of a Will."
In the case of Raj Kumari Garg Vs. S.M. Ezaz and Ors., RFA (OS) NO.38/12 and FAO (OS) No.204/2012 decided on 13.08.2012, Delhi High Court observed :
"34. Another aspect taken note of in the impugned order and which was canvassed before us arises from the judgment of the Supreme Court in Suraj Lamp & Industries Private Limited (2) Through Director Vs. State of Haryana & Anr. (2012) 1 SCC 656. The execution of Agreement to Sell & Purchase coupled with collateral documents like GPA, SPA, Will etc has been a common practice in Delhi. The validity of such a practice has been examined in the said judgment and it has been held that the bunch of such documents cannot be recognized as deeds of title, "except in the limited extent of Section 53A of the TP Act". In fact, it has been observed in paras 26 & 27 that the observations of the Supreme Court are not intended in any way to affect the validity and powers of attorney executed in genuine transaction and the bunch of documents can continue to be treated as existing agreements of sale which would not prevent the affected parties from getting the registered deeds of conveyance to complete their title. The said bunch of documents can also be used to obtain specific performance or to defend possession under Section 53A of the TP Act............"
Contd....16 of 28 : 17 :
18 It is seen that both the parties are claiming title over the suit property from common predecessor in interest i.e. late Sh. F.S. Masih, original allottee of the suit property. The defendants could not prove their titled documents and the plaintiffs have proved their documents proving that they are the successor of late Sh. F.S. Masih. It is argued on behalf of defendants that the Will, Exb.PW.1/3 in favour of Sh. Francis Massey executed by Mrs. Faith Masih was not proved on record as per law. The property was purchased by the plaintiff from Sh. Francis Massey i.e. Son of late Sh. F.S. Masih, even if it is believed for the sake of arguments, in that case also Sh. Francis Massey is one of the coowner of the suit property as per the law of inheritance, being a legal heir of late Sh. F.S. Masih and late Mrs. Faith Masih and it is well settled law that a coowner can always transfer his share in the property. Therefore, after transfer of property or his share by Sh. Francis Massey in favour of the plaintiffs, the plaintiffs become the coowners of the property and can file a suit to protect the same. It is pertinent to mention that till date no dispute has been raised by other legal heirs of late Sh. F.S. Masih and late Mrs. Faith Masih against the title of the plaintiffs and the document in favour of the plaintiffs is registered irrevocable GPA which carries a presumption of its due execution. Had there been any dispute, the defendants who are the relative of the predecessors in interest, must have brought the factum of pendency of the suit into their knowledge and they might have raised objections by now which has not been done so far which shows that title of plaintiffs is clear. In any case, plaintiffs Contd....17 of 28 : 18 :
are not seeking declaration of their title or ownership in the present case. In view of the aforesaid discussion and judgments, I am of the considered opinion that merely Sale Deed has not been finally executed does not belie the transaction of sale between the plaintiffs and Sh. Francis Massey, son of the original allottee who is also the coowner and execution of GPA in favour of plaintiffs by coowner makes the suit maintainable. In view of the same, I decide this issue in favour of plaintiffs and against the defendants. ISSUE NO.5 :
"Whether the suit of the plaintiff is barred by limitation? OPD"
19 The burden to prove this issue was upon the defendants. Ld. Counsel for defendants states that defendants and their predecessor in interest are in continuous and uninterrupted hostile possession of the suit property since 1970 and, therefore, suit is barred U/s 27 and Article 65 of the Limitation Act as has been beyond 12 years of the limitation period.
The law of point of adverse possession and limitation has been dealt in the following judgments :
It was held in Amba Gokal Vs. Parbat Bhuta, 1992 (1) Guj. LR 399 as under :
"Adverse possession is a relative term, though it is true that Contd....18 of 28 : 19 :
possession is prima facie adverse, mere user does not amount to adverse possession and mere possession is not adverse. There must be coexistence of two distinct ingredients. Adverse possession means, possession by a person holding the land on his own behalf or on behalf of some person other than the true owner having a right to immediate possession, provided the true owner is not under a disability or incapable of suing. Adverse possession is possession that is hostile, under a claim or colour of title, actual, open, notorious, exclusive and continuous, continued for the required period of time thereby giving an indefeasible right of possession or ownership to the possessor by the operation of the limitation of actions."
It was held in Nair Service society Vs. K.C. Alexander, AIR 1968 SC 1165, as under :
"And permissive possession cannot be converted into adverse possession unless it is provided that the person in possession asserted an adverse title to the property to the knowledge of the true owner."
It was held in STate Bank of Travancore Vs. A.R. Panicker, AIR 1971 SC 996, as under :
"Nor can any length of user by itself convert permissive possession into an adverse possession."
It was held in Sanglakpam Ningol Adhikarimaym Ongbi Jbencha Devi Vs. Ningamban Mani Singh, AIR 1977 Gau I, as under :
"In order to constitute adverse possession it must be shown by the Contd....19 of 28 : 20 :
party pleading it that the possession was open, hostile and exclusive. The burden of proving that the possession of the suit land was adverse and for the statutory period lay heavily on the party who sits up the plea."
It was held in Ramsingh Vs. Deputy Commissioner of Barabanki, (1889) ILR 17 Cal 444 at 448, as under :
"Whether possession in a particular case is adverse or not depends upon the particular circumstances proved in the case. It is mainly a question of fact."
It was held in A.P. Chelliah Vs. Mottayand Thevar and others, 2002 (4) LW 780, as under :
"Perfecting title by adverse possession is a mixed question of law and fact."
It was held in State of A.P. Vs. K. Fakrubi, AIR 1962 AP 518, as under :
"A party who sets up a little by adverse possession has to show affirmatively his possession for over the statutory period and presumption and probabilities cannot be substituted for evidence."
Contd....20 of 28 : 21 :
It was held in Saligram Vs. Laxminarainji, AIR 1955 Ajmer 25 as under :
"If it is a party's case that he has completed his title by adverse possession he should adduce evidence to that effect."
It was held in A. Puttathayamma Vs. Rathnarajiah, ILR (1955) Mys. 227, as under :
"Where the plaintiff and defendant are close relations, very much more and better and stronger evidence of a positive character is necessary to establish title by presumption and adverse possession in favour of the plaintiff. Substantial and clear evidence of neighbours and other villagers and tenants of continued exclusive possession of the land by the plaintiff to the deprivation of any enjoyment by the defendant would be necessary before the plaintiff can rely upon his title by prescription."
It was held in Mr. Bharagava & Co. Vs. Shyam Sunder Singh, AIR 1988 Del 349 as under :
"In case of permissive possession, the person who is in possession claiming adverse possession must allege and prove some overt act."
Contd....21 of 28 : 22 :
It was held in S.R.D. Amirchand Vs. mangal Rai Chhitumal, AIR 1967 Delhi 70, as under :
"In the case of adverse possession of a vacant open site, the claimant must prove exclusion of the real owner by open and hostile acts amounting to denial of the owner's title."
I have carefully gone through the pleadings of the parties previous litigations between the parties or their predecessor in interest. It is seen that defendants had claimed that they are owners of the suit property. However, they could not prove any document including the Sale Deed or Agreement to Sell from original allottee showing that they had purchased the suit property or that title of the suit property was validly transferred in their names. They are not in possession of any registered document as per requirements of Registration Act and Transfer of Property Act. They had already been declared unauthorized occupant in the year 2003 by the court of Ms. Savita Rao, the then Civil Judge, Delhi and the same order had attained finality as had never been challenged by the defendants. Even in the present suit, defendants claimed themselves to be owners of the suit property but could not place any document to show their title or ownership. The plea of adverse possession has not been taken in the pleadings or in the evidence led by the defendants. On the contrary, they have taken the plea of ownership based on title documents which finally they could not prove.
Contd....22 of 28 : 23 :
20 It was held on Karnataka Board of Sakf Vs. Govt of India by Hon'ble Supreme Court that in the eyes of law an owner would be deemed to be in possession of the property so long as there is no intrusion. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is well settled principle that a party claiming must prove that his possession is "nec vi, nec clam, nec precario" i.e peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
In SM Karim Vs. Bibi Sakinal, AIR 1964 SC 1254, it was held that physical fact of exclusive and th enimous possidendi to as owner in exclusion to the actual owner are the most important factors that are tobe accounted in cases of adverse possession. Pleas of adverse possession is not a pure question of law but a blended one of fact and law therefore a person 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 continued, and E. His possession was open and undisturbed.
Contd....23 of 28 : 24 :
In Dr. Mahesh Chander Sharma Vs. Raj Kumara Sharma, 1996 (8) SCC 128, it was held that a person claiming adverse has no equities in his favour since he is trying to defeat the rights of lawful owner. It is for him to clearly plead and establish all facts necessary to establish his adverse possession.
In P. Periasami Vs. P. Pariathambi, 1995 6 SCC 523, it was held that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The pleas on title and adverse possession are mutually inconsistent and the later does not begin to operate until the former is renounced.
It was held in the judgment titled Ramrameshwari Devi and Others Vs. Nirmala Devi and Others, (2011) 8 Supreme Court Cases 249 as under :
Civil Procedure Code, 1908 - Or. 14 R. 1 and S.11 - Issue which may not be framed - Resjudicata Issue on which adjudication in earlier round of litigation had attained finality - Determination of title of respondentplaintiff having attained finality in earlier round, issue regarding adverse possession of appellant - defendants, held, should not have been framed - Specific Relief Act. 1963, Ss. 5 and 6.
Contd....24 of 28 : 25 :
It was held in the judgment titled Tribhuvan Shankar Vs. Amrut Lal, (2014) 2 Supreme Court Cases 788 as under :
Limitation Act, 1963 - S. 27 and Art. 65 - Adverse possession - Period of Limitation for perfecting title by adverse possession stops running with filing of suit for recovery of possession, even if such suit / action is filed in the wrong forum, as in the present case - Specific Relief Act, 1963 - S.5 - Recovery of possession based on title - Proper forum is civil court in a properly constituted suit under CPC - Civil Procedure Code, 1908, S. 9.
It was held in the judgment titled State Bank of haryana Vs. Mukesh Kumar and Others, (2011) 10 Supreme court Cases 404 as under :
People are often astonished to learn that a trespasser may take that title of a building or land from the true owner in certain conditions and such 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. The government itself may acquire land by adverse possession. Fairness dictates and commands that if the Government can acquire title to private land through adverse possession, it should be able to lose title under the same circumstance.
In Hemaji Waghaji jat Vs. Bhikhabhai Khangarbhai Harijan (one of Contd....25 of 28 : 26 :
us Bhandari J.), this Court had an occasiont o examine the English and American law on 'adverse possession'. The relevant paragraphs of that judgment (para 24) are reproduced as under : (SCC pp. 52526) "24. In a relatively recent case in P.T. Munichikkanna Reddy Vs. Revamma, this court again had an occasion to deal with the concept of adverse possession in detail. This Court also examined the legal position in various countries particularly in English and Americal systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse possession in paras 5 and 6 observed as under : (SCC pp. 6667) '5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. ( See. Downing Vs. Bird.
Arkansas Commemorative Commission Vs. City of Little Rock, Mannot Vs. Murphy and City of Rock Springs Vs. Sturn.
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 adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days the English courts are taking a very negative view towards Contd....26 of 28 : 27 :
the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in the light of the view that property is a human right adopted by the European Commission.
This Court in Revamma observed that to understand the true nature of adverse possession, Fairweather Vs. St. Marylebone Property Co. Ltd can be considered where the House of Lords referring to Taylor Vs. Twinderrow termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law. As against the rights of the paperowner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against eh owner of the property who has ignored the property.
21 Considering the aforesaid judgments, it is clear that it is upon the defendants who have no title upon the entire burden of proving that possession is adverse to that of the plaintiffs. The limitation period in such case is for 12 years from day possession becomes adverse. They could not show when and how the possession became adverse. Defendants cannot take contrary and inconsistent pleas by claiming the ownership on the one hand and if they fail to prove the same, they cannot claim ownership by adverse possession as was held in P. Periasami Vs. P. Pariathambi, 1995 6 SCC 523, as has been Contd....27 of 28 : 28 :
discussed above. Even otherwise plaintiffs and his predecessor have been in litigation since 1985. Accordingly, this issue is decided in favour of plaintiffs and against the defendants and suit is not barred by limitation due to adverse possession.
RELIEF :
In view of my above findings, the suit of the plaintiffs is decreed as follows :
a) Relief declaration is declined in view of finding on Issue No.1.
b) A decree of possession is passed in favour of plaintiffs and against the defendants of the suit property bearing No.729, Sunlight Colony, Hari Nagar, Ashram, New Delhi.
C) As no issue was framed or pressed w.r.t relief seeking permanent injunction nor any evidence was led by the plaintiffs, the relief of permanent injunction is declined.
21 Decreesheet be drawn accordingly. Cost of the suit is also awarded to the plaintiffs. The file be consigned to Record Room after completion of necessary formalities.
Dictated and announced in the open court on 27.08.2014 (SIDHARTH SHARMA) ADJ04 (South), Saket Courts New Delhi : 27.08.2014 Contd....28 of 28