Sh. Justine Ekka vs Smt. Preeti Anshumala Kerketta on 12 May, 2022

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Delhi High Court - Orders

Sh. Justine Ekka vs Smt. Preeti Anshumala Kerketta on 12 May, 2022

1. The challenge in this appeal is to a Judgment / Decree dated January 31, 2022 passed by the learned Addl. District Judge-03, North-West District, Rohini Court, Delhi whereby the learned Trial Court has partially decreed the suit with costs in favour of the respondent / plaintiff.

2. The suit filed by the respondent / plaintiff is for possession in respect of suit property being Flat No. 43/A, Ground Floor, Block-B, Pocket-1, Shalimar Bagh, Delhi - 110088.

3. The case of the respondent / plaintiff before the Trial Court was that she is the absolute and legal owner of the suit property by virtue of letter issued by the DDA where by the suit property has been mutated / transferred in her name. The suit property was allotted to her father namely Lenus Kerketta, who was the actual allottee, lawful owner and in possession of the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 suit property since taking over of physical possession from DDA. The father of the respondent / plaintiff expired on April 19, 2014.

4. It was the case of the respondent / plaintiff that during his lifetime her father had applied for transfer of the suit property in her favour after taking 'no objection' from his son and wife and accordingly, submitted all necessary documents to the DDA. The mother and brother of the respondent who are still alive have no objection pertaining to the ownership of the suit property as they have given free consent in favour of the respondent / plaintiff.

5. The appellant / defendant is the real brother of the mother of the respondent / plaintiff, who requested her husband to help the appellant / defendant being her brother and allow him to reside in the suit property till he makes some other arrangement. It was the case of the respondent / plaintiff that the appellant / defendant had assured her late father that he would make arrangement for other accommodation within one year and thereafter vacate the suit property.

6. It was the case of the respondent / plaintiff that in this background the appellant / defendant starting staying in the suit property. It was also the case of the respondent / plaintiff that whenever her father had asked the appellant / defendant to vacate the suit property, he requested him to give him some more time and allow him to reside in the suit property as he was making efforts to arrange some other accommodation and as such her father allowed the appellant / defendant to live in the suit property.

7. It was the case of the respondent / plaintiff that she also made repeated requests to the appellant / defendant to vacate the suit property, but instead of vacating the suit property he kept on enjoying the illegal and Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 unauthorized occupation and possession of the same.

8. A reference was made by the respondent / plaintiff to the legal notice dated September 19, 2014 wherein she had called upon the appellant / defendant to hand over the physical and vacant possession of the suit property. Failing to do so, he shall be liable to pay damages to the tune of ₹2,000/- per day excluding electricity and water charges. It is in this background, the suit was filed for possession with respect to the suit property and a decree of recovery of ₹30,000/- and mesne profits / damages and a decree of future mesne profits / damages @₹2,000/- per month from October 1, 2014 till delivery of physical, vacant and peaceful possession of the suit property.

9. The appellant / defendant had filed a written statement and took an objection with regard to the maintainability, locus standi, cause of action, concealment of material facts. Further the suit was not properly valued and the Court has no jurisdiction to try the suit. It was his stand that he has been in occupation and possession of the suit property since 1990 in the capacity of the owner of the property. Therefore, the suit is hopelessly time bared qua the relief sought by the respondent / plaintiff in the suit.

10. On merit, it was his stand that the suit property was in the name of the father of the respondent / plaintiff namely Lenus Kerketta who was allotted the suit property by the DDA is a matter of record. He admitted that the father of the respondent expired on April 19, 2014. He has denied the factum of transfer of the suit property in the name of the respondent / plaintiff. In substance, it was his case that the respondent / plaintiff is neither the owner of the suit property nor has any right, title or interest qua the suit property. It was also the stand of the appellant / defendant that the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 father of the respondent / plaintiff was his close relative and after the allotment of the suit property he intended to sell the suit property and after negotiation, the father of the respondent / plaintiff agreed to sell the suit property for a total sale consideration of ₹1,50,000/-. The appellant / defendant has only ₹50,000/- in cash, therefore, he borrowed ₹1,00,000/- from his friend namely Vinod Kumar Sharma and paid ₹1,50,000/- in cash to the father of the respondent / plaintiff on January 29, 1990 in the presence of Vinod Kumar Sharma and took actual physical possession of the suit property and since then, he is residing in the suit property with his family. It was also his stand that the father of the respondent / plaintiff had assured that as and when the transfer documents are required, he shall execute the same in the name of the appellant / defendant. However, instead of repeated requests, reminder, transfer documents could not be executed and this fact is well within the knowledge of the entire family of the respondent / plaintiff including her mother and brother. He denied the case set up by the respondent / plaintiff that her mother had requested her husband (father of the respondent / plaintiff) to allow the appellant / defendant to live in the suit property till he makes some other arrangements.

11. A replication to the written statement was filed by the respondent / plaintiff and after completion of pleadings the Trial Court had framed the following issues:

1. Whether the plaintiff is entitled to possession of the suit property as prayed for? (OPP)

2. Whether the plaintiff is entitled to decree of Rs.30,000/- on mesne profits / damages, as prayed for? (OPP)

3. Whether the plaintiff is entitled to decree of future mesne profits / damages at the rate of Rs.2,000/- PM alongwith interest as prayed for? (OPP) Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31

4. Whether the suit of the plaintiff is not properly valued for the purposes of court fees & jurisdiction? (OPD)

5. Whether the defendant is residing in suit property since 1990 as an owner of the same (OPD)

12. Respondent / plaintiff in support of her case examined two witnesses. She examined herself as PW1 and relied upon the documents, i.e., letter Ref. No. L032/409/87/SB/NP-1373 dated June 16, 2014 issued by the DDA which was marked as Ex.PW1/1, acknowledgment slip dated March 26, 2014 issued by DDA, receiving all necessary documents as Ex.PW1/2, site plan of the suit property as Ex.PW1/3, copy of legal notice dated September 19, 2014 as Ex.PW1/4, postal slip of the dispatch of legal notice as Ex.PW1/6, courier slip as PW1/6 and acknowledgment card as Ex.PW1/7 and some other documents marked as Mark A to Mark K. Umesh Kumar, Assistant from LAB Housing, DDA was examined as PW2. He brought the original documents and proved the photocopy of final mutation letter as Ex.PW2/1, photocopy of application for transfer of suit property as Ex.PW2/2, photocopy of indemnity bond given the department as Ex.PW2/3, photocopy of the indemnity bond transferee as Ex.PW2/4, photocopy of affidavit of transferor as Ex.PW2/5, photocopy of affidavit transferee as Ex.PW/6 and photocopy of undertaking given by the respondent / plaintiff as Ex.PW2/7.

13. The appellant / defendant in his defence has examined two witnesses. He examined himself as DW1 and relied upon the copy of Aadhar Card as Ex.DW1/1, copy of ration card showing the address of the suit property in the year 1990 as DW1/2, copy of Voter ID card on the address of the suit property for the year 2008 as Ex.DW1/3, copy of gas connection in the name Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 of the appellant / defendant on the address of the suit property for the year 1992 as Ex.DW1/4. He also examined Vinod Kumar Sharma as DW2, who tendered his evidence by way of affidavit Ex.DW2/A and relied upon the copy of his Aadhar Card Ex.DW2/1.

14. The Trial Court with regard to Issue Nos. 1 and 5 has held that the respondent / plaintiff is entitled to the possession of the suit property. Similarly on Issue Nos. 2 and 3 the Trial Court has granted damages @ ₹2,000/- per month w.e.f. October 1, 2014 along with interest @ 6% per annum.

15. The submission of the learned counsel appearing for the appellant / defendant is primarily the same as was taken by the appellant / defendant before the Trial Court that he has been in possession of the suit property since the year 1990; he had purchased the property from the father of the respondent / plaintiff with a clear understanding, as and when the appellant / defendant requires the execution of the document transferring the right of the suit property, the father of the respondent / plaintiff shall do so. He also stated that the appellant / defendant being in possession of the property since 1990, has become owner on the basis of adverse possession.

16. On a specific query from the Court, in what manner the appellant / defendant had paid the sale consideration for purchase of the flat, learned counsel appearing for the appellant states that the amount was paid in cash. On a specific query whether any document showing the receipt of the amount by the father of the respondent / defendant has been placed on record, the answer is in the negative. He also on another specific query from the Court enquiring whether any letter was written by the appellant / defendant calling upon the father of the respondent / plaintiff to execute the Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 documents conferring the title of the suit property in his favour, the answer is in the negative. If that be so, I agree with the conclusion arrived at by the Trial Court on Issue Nos. 1 and 5 more specifically in paragraphs 10 to 24, wherein the Trial Court has also rejected the plea of adverse possession of the appellant, which I reproduce as under:

"10. Both the issues no.1 and 5 are interconnected and thus, this court deems it proper to decide both the issues simultaneously. The onus of proving issue no.1 was on the plaintiff and onus of proving issue no.5 was on the defendant.

11. Defendant has examined himself as DW-1 and has relied upon documents Ex.DW1/1 to Ex.DW1/4. He has deposed on the lines of the written statement filed by him. In para no.5 of preliminary objections in the written statement, defendant has taken the plea that he is in occupation and possession of the suit property since 1990 in the capacity of owner and thus, the suit of the plaintiff is time barred. Perusal of file would show that it is not in dispute that father of plaintiff was the owner of the suit property in the year 1990. In para no.1 of written statement on merits, the defendant has taken the plea inter alia stating that after negotiations, father of the plaintiff agreed to sell the suit property for total sale consideration of Rs.1,50,000/-, out of which Rs.50,000/- was paid in cash by the defendant from himself and the amount of Rs.1,00,000/- was borrowed by him from his closed friend Shri Vinod Kumar Sharma (DW-2) and amount of Rs.1,50,000/- in total in cash was paid to the plaintiff on 20.01.1990 in presence of DW- 2 and actual physical possession of the suit property was taken by the defendant. Since then, the defendant is residing in the suit property with his family. It is further stated that father of plaintiff had assured to execute transfer documents but the same was not executed despite his repeated requests. The defendant has claimed his ownership in the suit since 1990.

12. In his cross examination dated 24.01.2019, DW-1 admitted that he has not filed any document pertaining to the purchase of suit property against the consideration of Rs.1,50,000/-. He also admitted that he had not paid the said amount through cheque. He further admitted that no receipt has been placed on record. The Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 above said pleadings of the defendant as well as cross examination would show that the defendant has not paid the alleged amount of Rs.1,50,000/- through any instrument/documents and it is also proved that no document was executed by the father of the plaintiff in respect of transfer of suit property much less any registered sale deed. It is settled law that title of any immovable property does not transfer by way of oral settlement or agreement. The court would rely upon the important observation made by the Hon'ble High Court of Delhi in judgement titled as "Dilbagh Singh vs. Hira Lal" (Supra), which are as under: -

"7. Learned counsel for the appellant/defendant very vehemently argues that the subject suit could not have been decreed under Order XII Rule 6 CPC because there were disputed questions of fact which required trial, however, in my opinion the argument is misconceived because the only defence of the appellant/ defendant was that he purchased the suit property under an oral agreement, but an oral agreement cannot transfer an immovable property with the further fact that not a single document was filed by the appellant/defendant showing payment of consideration firstly of Rs.20,000/, then of Rs.37,000/- then of Rs.30,000/- and thereafter of Rs. 33,000/-. Accordingly, there was no document whatsoever filed in the courts below, much less a legally required document, showing that there was transfer of title in the suit property from the respondent/plaintiff to the appellant/defendant.

8. To complete the narration I must note that there is no defence of the appellant/ defendant laid out in the suit under Section 53A of the Transfer of Property Act, and even assuming such a defence would have been laid out, such defence would not have succeeded because there is not a single document in the court record showing any written agreement in the nature of Section 53A of the Transfer of Property Act, by which the appellant/defendant could have taken benefit of he doctrine of part performance against the respondent/plaintiff. It is also interesting and curious to note that the appellant/defendant while talking of the payment of the first token money of Rs.20,000/- for Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 entering into the agreement, does not even refer any specific date of this first alleged receipt and which would be the first agreement between the parties and which document must satisfy the requirement of Section 53A of the Transfer of Property Act for the appellant/defendant to take benefit of the doctrine of part performance.

Thus, the defendant has failed to prove that title of the suit property was ever transferred in his favour and he has failed to prove that he himself is the owner of the suit property since 1990.

13. During the course of argument, Ld. Counsel for defendant had contended that the defendant has become owner by way of adverse possession and he further contended that defendant has proved adverse possession in the present matter against the plaintiff. On the other hand, Ld. Counsel of plaintiff had vehemently opposed the contentions of Ld. Counsel for defendant stating that no plea of adverse possession has been taken by the defendant in his written statement. He further contended that parties cannot travel beyond their pleadings in the civil suit and further contended that even otherwise, no material particulars, required for setting up the plea of adverse possession are available in the written statement of the defendant.

14. Perusal of the written statement of defendant would show that the defendant nowhere stated that he has become owner of the suit property by way of adverse possession. Even the term "adverse possession" has not been used single time in his pleadings. No plea has been taken by the defendant in his pleadings as on which date, month and year, the possession of the defendant became adverse possession so that the starting point of limitation against the plaintiff could be found. Such material particulars are required to be incorporated by the defendant while taking the plea of adverse possession. It has been held by the Hon'ble Supreme Court of India in judgment titled as "Ravinder Kaur Grewal and Ors. vs. Manjit Kaur and Ors." (Supra) as under: -

Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31

7. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three "neck" - nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S.M. Karim vs. Bibi Sakina MANU/ SC/0236/1964 : [1964] 6 SCR 780 speaking for this Court Hidayatullah, J. (as he then was) observed thus:

"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."

15. Further, it is settled law that parties cannot go beyond their pleadings in Civil Suit. The Court would rely upon the judgment titled as "Shivaji Balaram Haibatti vs. Avinash Maruthi Pawar"

(Supra) wherein following observations have been made:-

"28. It is these issues, which were gone into by the two Courts and were concurrently decided by them against the respondent. These issues, in our opinion, should have been examined by the High Court with a view to find out as to whether these findings contain any legal error so as to call for any interference in second appeal. The High Court, however, did not undertake this exercise and rather affirmed these findings when it did not consider it proper to frame any substantial question of law. It is a settled principle of law that the parties to the suit cannot travel beyond the pleadings so also the Court cannot record any finding on the issues which are not part of pleadings. In other words, the Court has to record the findings only on the issues which are part of the pleadings on which parties are contesting the case. Any finding recorded on an issue de hors the pleadings is without jurisdiction. Such is the case here."

Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31

16. Ld. Counsel for plaintiff has contended that the defendant cannot take two pleas, which are contradictory in itself. He further contended that on the one side, the defendant is taking plea that he became owner of the suit property as he had purchased the same and on the other hand, he is taking the plea that he has become owner by way of adverse possession.

17. On the other hand, Ld. Counsel for defendant has contended that the suit of the plaintiff is barred by law of limitation.

18. Perusal of the record would show that on the one hand, it is pleaded by the defendant that he had purchased the suit property from late father of the plaintiff and on the other hand, he has taken the plea during arguments that he became owner of the suit property by way of adverse possession. The court would rely upon judgment titled as "Laxman Singh vs. Ram Kumar Sharma & Anr." (Supra), wherein Hon'ble High Court of Delhi has made following observations: -

"14. Insofar as the first aspect is concerned which concerns the defence of adverse possession, apart from being contradictory to the specific stand taken by the appellant/defendant that he was the owner of the suit property, there is no such plea taken in the written statement. Therefore, this submission cannot be accepted.

15. What the appellant/defendant has, in fact, averred in the written statement is that the suit was barred by limitation as it had been filed in 2013 where he has been inducted as a tenant in the year 2000. Qua this issue the trial the court has returned a finding of fact that the cause of action arose only when the notice dated 16.02.2013 (Ex.PW-1/19) was served on the appellant/defendant qua which the reply dated 25.02.2013 (Ex.PW-1/24) was received by the respondents/ plaintiffs. Therefore, the suit which was filed on 20.03.2013 was not barred by limitation.

15.1. I find that no error in the view taken by the trial court which was sustained by the first appellate court."

19. Keeping in view the above said facts, this Court is of the view that defendant cannot take both the pleas which are contradictory in itself. Legal notice to vacate the premises had been given on Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 behalf of plaintiff to the defendant on 19.09.2014 and the suit has been filed on 17.10.2014 and thus, the suit is not barred by limitation. The contention of Ld. Counsel for defendant is without any merit.

20. Ld. Counsel for defendant had contended that the defendant has been in possession of the suit property from a long period i.e. since 20.01.1990 and hence, he has become owner of the suit property by way of adverse possession and the plaintiff has no right to dispossess him from the suit property. This Court does not agree with the contention of Ld. Counsel for defendant.

21. Hon'ble High Court of Delhi in judgment titled as "Veena Devi & Anr. vs. Praveen Kumar Gupta & Ors." (Supra) has referred important observations made in judgment titled as "Maria Margarida Sequeria Fernandes & Ors. vs. Erasmo Jack de Sequeria (Dead) through L.Rs." (Supra) and same are as under: -

"a. No one acquires title to the property if, he or she was allowed to stay in the premises gratuitously. Even by long possession of years of decades such person would not acquire any right or interest in the said property.

b. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

c. The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, caretaker or as a servant.

d. The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour."......

22. Keeping in view the pleadings, legal position and the material available on record, the defendant is not entitled to raise the plea of adverse possession on the basis of alleged long possession. The judgment relied upon by Ld. Counsel for defendant is not applicable to the facts of the present case being distinguishable on facts.

23. Perusal of the file would show that the plaintiff examined Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 herself as PW-1 and has deposed on the lines of plaint. The title of the suit property in the name of father of plaintiff has not been disputed even by defendant at any stage. The plaintiff has claimed that title of suit property was transferred in her name from her father. She has relied upon documents Ex.PW1/1 by which the suit property in question was transferred in her name from her father by DDA. The plaintiff has also examined PW2 who has proved the documents i.e. photocopy of final mutation letter as Ex.PW2/1 (OSR), photocopy of application for transfer of subject flat as Ex.PW2/2 (OSR), photocopy of indemnity bond given to the Department as Ex.PW2/3 (OSR), photocopy of the indemnity bond transferee as Ex.PW2/4 (OSR), photocopy of affidavit of transferor as Ex.PW2/5 (OSR), photocopy of affidavit of transferee as Ex.PW2/6 (OSR) and photocopy of undertaking given by the plaintiff as Ex.PW2/7 (OSR). The plea of the defendant to declare himself as owner of the suit property has already been decided against the defendant, thus, it is proved on record that plaintiff is the owner of the suit property and she has got the title from her father who admittedly was the owner with respect to the defendant.

24. The plaintiff has relied upon the legal notice dt. 19.09.2014 Ex.PW1/4 stating that notice to vacate the suit property which was sent to the defendant. During the cross examination of PW-1, question was put on behalf of the defendant that it was the plaintiff who first time on 19.09.2014 sent the legal notice to the defendant to vacate the suit property after the death of her father, which was admitted by plaintiff/ PW-1. On the other hand, during the cross examination of DW-1, he deposed that he did not receive any legal notice dated 19.09.2014 sent by plaintiff before filing the suit. In his further cross examination, the defendant admitted that his correct address is mentioned in the legal notice. The plaintiff has placed on record one speed post receipt Ex.PW1/5, courier receipt Ex.PW1/6 dated 20.09.2014 and one acknowledgement Ex.PW1/7. Keeping in view the material available on record and cross examination of PW-1 and DW1, it is proved that legal notice dated 19.09.2014 for vacation of the suit property was sent to the defendant by the plaintiff and the same was received by the defendant. It is proved that plaintiff is entitled for possession of suit property. Thus, issue no.1 and issue no.5 are decided in favour Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31 of the plaintiff and against the defendant."

17. The above clearly establishes the right of the respondent / plaintiff upon the suit property. There is no document filed by the appellant / defendant to show any agreement which he has executed with the father of the respondent / plaintiff with regard to the suit property or any other document showing his title.

18. In so far as the relief of damages granted in favour of the respondent / plaintiff is concerned, I do not see any illegality in the order nor any serious attempt has been made by the learned counsel for the appellant / defendant to challenge such a finding.

19. In view of the above conclusion, I am of the view that the appellant / defendant has not made out any case for interference with the impugned Judgment dated January 31, 2022 and the same is affirmed. The appeal is without any merit and the same is dismissed.

CM APPL. 22671/2022

Dismissed as infructuous.

V. KAMESWAR RAO, J MAY 12, 2022/jg Signature Not Verified Digitally Signed By:ASHEESH KUMAR YADAV Signing Date:17.05.2022 10:59:31

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Delhi High Court - Orders