Delhi District Court
Ta' Awun Trust Regd vs Shri Mohd. Sultan on 27 May, 2020
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTRICT, SAKET COURT, NEW DELHI.
CS No. 210815/2016 (Old No. 61/2016)
1. TA' AWUN TRUST REGD.
Through its Trustee and Secretary
Mr. M. Nasir Hassan Arvi
Regd. Office:
162, Jogabai Extension,
Okhla, Jamia Nagar,
New Delhi - 1100125.
2. MR. MOHAMMAD ALAM
Trustee of the TA' AWUN TRUST (REGD.)
Regd. Office:
162, Jogabai Extension,
Okhla, Jamia Nagar,
New Delhi - 1100125.
......Plaintiffs
Versus
1. SHRI MOHD. SULTAN
S/o Late Shri Siddiq
R/o Plot No. D18,
Abul Fazal Enclave, Jamia Nagar,
New Delhi - 110025.
2. MS. MEENA BEGUM
W/o Sh. Mohd. Sultan
Plot No. D18,
Abul Fazal Enclave,
CS No. 210815/2016 (Old No. 61/2016)
CS No. 210816/2016 (Old No. 62/2016) page 1 of 66
Jamia Nagar,
New Delhi - 110025.
3. SHAMSHUL
S/o Mr. Sadir
R/o Plot No. D18,
Abul Fazal Enclave, Jamia Nagar,
New Delhi - 110025.
4. REHANA
W/o Sh. Shamsul
R/o Plot No.D18,
Abul Fazal Enclave, Jamia Nagar,
New Delhi - 110025.
5. DR. MOHD. MANZOOR ALAM
Settler Trustee and Chairman
Registered Office :
162, Jogabai Extension,
Okhla, Jamia Nagar,
New Delhi - 110025.
(Proforma Defendant)
6. JUSTICE (RETD.) A.M. AHMADI
Trustee of the TA' AWUN TRUST (REGD.)
C/3, Kant Enclave
New DelhiHaryana Check Post
Anangpur, Faridabad (Haryana)
(Proforma Defendant)
7. DR. ABUSALEH SHARIFF
Trustee of the TA' AWUN TRUST (REGD.)
A702, Saraswati Apartments
Plot97, I.P. Extension
Madhav Vihar Market, Patparganj
New Delhi110092
CS No. 210815/2016 (Old No. 61/2016)
CS No. 210816/2016 (Old No. 62/2016) page 2 of 66
(Proforma Defendant)
8. PROF. MANZOOR AHMAD
Trustee of the TA' AWUN TRUST (REGD.)
Vice Chancelor, Swami Vivekanand Subharti University
Meerut2500059
Uttar Pradesh
(Proforma Defendant)
9. MR. IBNU SOUD SHAHABDEEN
Trustee of the TA' AWUN TRUST (REGD.)
241, Rangarajapuram, Near Power House,
Kodembakkam
Chennai600024
(Proforma Defendant)
10. PROF. Z. M. KHAN
Trustee of the TA' AWUN TRUST (REGD.)
A804, Pathik Vihar Society
C30/58, Sector62
Noida (U.P.)
(Proforma Defendant)
11. DR. ISHTIAQUE DANISH
Trustee of the TA' AWUN TRUST (REGD.)
N43/203A, Abul Fazal Enclave,
Jamia Nagar
New Delhi110025
(Proforma Defendant)
12. DR. SYED FAZLE RAB
Trustee of the TA' AWUN TRUST (REGD.)
104, First Floor, Deep Ganga Complex
Besides Arvind Hospital
Ashok Rajpath
Patna - 800004, Bihar
CS No. 210815/2016 (Old No. 61/2016)
CS No. 210816/2016 (Old No. 62/2016) page 3 of 66
(Proforma Defendant)
13. PROF. P. KOYA
Trustee of the TA' AWUN TRUST (REGD.)
IYC Building 5/3274A, Bank Road
Calicut673001
Kerala
(Proforma Defendant)
......Defendants
Date of filing of suit : 10.08.2016
Date of Decision : 27.05.2020
CS No. 210816/2016 (Old No. 62/2016)
1. TA' AWUN TRUST REGD.
Through its Trustee and Secretary
Mr. M. Nasir Hassan Arvi
Regd. Office:
162, Jogabai Extension,
Okhla, Jamia Nagar,
New Delhi - 1100125.
2. MR. MOHAMMAD ALAM
Trustee of the TA' AWUN TRUST (REGD.)
Regd. Office:
162, Jogabai Extension,
Okhla, Jamia Nagar,
New Delhi - 1100125.
......Plaintiffs
CS No. 210815/2016 (Old No. 61/2016)
CS No. 210816/2016 (Old No. 62/2016) page 4 of 66
Versus
1. SHAMSUL
S/o Abdul Habib or S/o Ms. Sadir
R/o D18, Abul Fazal Enclave, Jamia Nagar,
New Delhi - 110025.
2. MS. REHANA
W/o SHAMSHUL
Plot No. D18,
Abul Fazal Enclave, Jamia Nagar,
New Delhi - 110025.
3. DR. MOHD. MANZOOR ALAM
Settler Trustee and Chairman
Registered Office :
162, Jogabai Extension,
Okhla, Jamia Nagar,
New Delhi - 110025.
(Proforma Defendant)
4. JUSTICE (RETD.) A.M. AHMADI
Trustee of the TA' AWUN TRUST (REGD.)
C/3, Kant Enclave
New DelhiHaryana Check Post
Anangpur, Faridabad (Haryana)
(Proforma Defendant)
5. DR. ABUSALEH SHARIFF
Trustee of the TA' AWUN TRUST (REGD.)
A702, Saraswati Apartments
Plot97, I.P. Extension
Madhav Vihar Market, Patparganj
New Delhi110092
CS No. 210815/2016 (Old No. 61/2016)
CS No. 210816/2016 (Old No. 62/2016) page 5 of 66
(Proforma Defendant)
6. PROF. MANZOOR AHMAD
Trustee of the TA' AWUN TRUST (REGD.)
Vice Chancelor, Swami Vivekanand Subharti University
Meerut2500059
Uttar Pradesh
(Proforma Defendant)
7. MR. IBNU SOUD SHAHABDEEN
Trustee of the TA' AWUN TRUST (REGD.)
241, Rangarajapuram, Near Power House,
Kodembakkam
Chennai600024
(Proforma Defendant)
8. PROF. Z. M. KHAN
Trustee of the TA' AWUN TRUST (REGD.)
A804, Pathik Vihar Society
C30/58, Sector62
Noida (U.P.)
(Proforma Defendant)
9. DR. ISHTIAQUE DANISH
Trustee of the TA' AWUN TRUST (REGD.)
N43/203A, Abul Fazal Enclave,
Jamia Nagar
New Delhi110025
(Proforma Defendant)
10. DR. SYED FAZLE RAB
Trustee of the TA' AWUN TRUST (REGD.)
104, First Floor, Deep Ganga Complex
Besides Arvind Hospital
Ashok Rajpath
Patna - 800004, Bihar
CS No. 210815/2016 (Old No. 61/2016)
CS No. 210816/2016 (Old No. 62/2016) page 6 of 66
(Proforma Defendant)
11. PROF. P. KOYA
Trustee of the TA' AWUN TRUST (REGD.)
IYC Building 5/3274A, Bank Road
Calicut673001
Kerala
(Proforma Defendant)
......Defendants
Date of filing of suit : 10.08.2016
Date of Decision : 27.05.2020
JUDGMENT
1. The above mentioned two suits have been filed by the plaintiff Trust for Declaration of owner ship and recovery of possession of portions of property bearing No.D18, Abul Fazal Enclave, Jamia Nagar, New Delhi, forming part of Khasra No.228, situated in village Okhla, Tehsil Mehrauli, New Delhi, from the defendants; user and occupation charges and also for permanent injunction for restraining the defendants from creating third party interest.
2. Plaintiff No.1 a Public Charitable Trust duly registered in 1988, purchased a plot measuring 534.09 sq. yards out of Khasra No.228, situated in Village Okhla, Tehsil Mehrauli, New Delhi from Mr. Mohd. Abul Fazal Farooqui through Power of Attorney, Affidavit, CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 7 of 66 receipt etc executed on 19.07.1993 for a total sale consideration of Rs.80,000/ which was paid vide cheque No.893387 dated 17.07.1993. The possession of property in question was handed over to Dr. Mohd. Manzoor Alam, Chairman of the Trust(defendant No.5). The Trust in order to protect the property from encroachment, raised a boundary wall around it and put a signboard of ownership of the said plot. It is submitted that Defendant no.1 Mohd. Sultan and Defendant No.2 Ms. Meena Begum citing their poverty, made a request to permit them to live in a portion of the property in question. The plaintiff as a goodwill gesture permitted the Defendant no.1 and 2 to stay without any charge or fee in the hutment in a portion around 400 sq. feet in the corner of the property in question. The Defendant no.1 and 2 assured the plaintiff that they would vacate the suit premises as and when directed by the plaintiff Trust and also assured that they would not induct anyone in the portion in their occupation.
3. In the intervening night of 4th and 5th August, 2014 an incident took place in the property in question in regard to which an FIR was registered at P.S Jamia Nagar, New Delhi. The plaintiffs thus, terminated the permission to stay of the Defendant no.1 and 2 on 07.08.2014 and requested them to vacate the suit premises and to hand over the peaceful possession by 14.08.2014. When the defendant no.1 and 2 failed to hand over the possession, a legal notice dated 22.08.2014 CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 8 of 66 was served upon the two defendants vide registered A.D/ courier despite which the possession was not returned to the plaintiffs.
4. The plaintiffs have further explained that they had initially filed a suit for possession and injunction vide Civil Suit No.502/14 before Ld. Civil Judge at District Court Saket on 07.11.2014. Defendant no.1 and 2 filed their written statement in the said case. During the pendency of the said suit, the plaintiff came to know that the illegal occupants Shamsul and Mohd. Sultan had obtained electricity connection on the said plot through BSES Rajdhani Power Ltd. Since the electricity connection had been obtained by misrepresentation on the basis of false, forged and fabricated documents, a request was made by plaintiff for disconnecting the electricity connection. The civil suit filed before the Ld. Civil Judge was withdrawn on 16.02.2015 on account of pecuniary jurisdiction and has been again filed before this Court.
5. The plaintiffs have further asserted that since the Defendant no.1 and 2 have failed to hand over the possession, they are liable to pay damages for use and occupation @ Rs.50 per sq. feet per month i.e Rs.30,000/ from the date of expiry till the handing over of the possession. Hence, the present suit bearing No.61/16 has been filed for possession, damages and occupation charges and permanent injunction.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 9 of 66
6. The plaintiffs have filed another suit bearing no.62/16 for declaration, possession and injunction against the defendants Shamsul and Rehana. In the said, suit similar averments have been made that it is the plaintiff Trust which is the owner and in physical possession of suit property in question, since 1993. It has been asserted that the defendants Shamsul and Rehana citing their poverty made a request to permit them to live in the suit property. They were allowed to reside in a portion of property of 600 sq. ft as a goodwill gesture by the plaintiffs and they assured that they would vacate as and when directed by the Trust. It is further submitted that despite a request, the defendants Shamsul and Rehana failed to vacate the property and hence, a legal notice dated 22.08.2014 was served upon them. They gave a reply dated 17.09.2014 through their advocate raising baseless pleas. Despite due determination of notice, Defendant no.1 and 2 failed to vacate the property and hence, a suit was filed for declaration, injunction and possession.
7. The defendant no.1 and 2 Mohd. Sultan and Meena Begum in their written statement filed in Suit No.61/16 took a preliminary objection that the plaintiffs have concealed the material facts. It is submitted that the defendant no.1 and 2 had been allowed to live in a jhuggi in the said plot along with their family members and they along with their sons Md. Salman and his wife Raizwana, Mohd. Ikram, Raheem, Mohd. Sameer and daughters Afsari, Rukshar and Gulafsha occupied the suit premises. It is explained that defendant's soninlaw CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 10 of 66 Mohd. Muslim is working in Institute of Objective Studies, Jogabai, New Delhi as office attendant since 1997. Mr. Mohd. Manzoor Alam who is Settler and Chairman of the plaintiff's Trust is also heading the Institute of Objective Studies which happens to be the sister organization of the plaintiff Trust. After 3 years of working in the Institute, Mohd. Muslim was given permission to reside in the suit premises by constructing a temporary room in the year 2000. Accordingly, he constructed a temporary room and started residing there. Mohd. Muslim then married Akhtari Begum, daughter of defendant on 30.01.2006 and she also joined Mohd. Muslim in the suit premises. After a few months Defendant no.1 and 2 sought permission from Dr. Mohd. Manzoor Alam Chairman of the plaintiff Trust and started residing in another part of the plot assigned to them by the officials of plaintiff Trust. He constructed a jhuggi in one corner and started residing there.
8. It is further stated that Shamsul was living in another corner of the plot opposite the jhuggi of the defendant and their soninlaw Mohd. Muslim. Shamsul's son Ishtiyaq Shah eloped with Gulafsha daughter of the defendants No.1 and 2 and they got married on 27.09.2008.
9. In the year 2010, the plaintiff Trust asked the defendants Mohd. Muslim as well as Shamshul to shift to another plot of plaintiff's Trust as they wanted to construct the plot for educational and Charitable CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 11 of 66 Medical Centre. Believing the assurance, the defendants, their sonin law Mohd. Muslim and their neighbour Shamsul shifted to plot of Defendant no.3 in Shaheen Bagh where they lived for around one year in the year 2010. In the year 2011, Defendant no.3 again told the defendants to shift back to the property in question as the plan for construction of building had been postponed. The defendants along with Shamshul and their soninlaw Mohd. Muslim, again shifted to the temporary rooms/ jhuggi that were constructed there. An assurance was also given by the plaintiff that defendants shall not be disturbed or made to vacate the jhuggi without giving sufficient time to find alternate accommodation which shall not be less than 6 months.
10. It is claimed that despite the assurance, the plaintiffs have terminated their licence illegally without giving sufficient time. It is further claimed that Shamsul and his family are not favourably disposed towards the defendant's elder soninlaw Mohd Muslim as he used to scold Ishtiyak Shah for various undesirable acts and was supporting the defendants against Shamsul, Rehana, Ishtiyak Shah and their family members, who used to torture the defendant's daughter Gulafsha for bringing insufficient dowry. Shamsuland Rehana also started making false complaints against Mohd. Muslim. In order to save themselves, Mohd. Muslim temporarily shifted out of jhuggi in property in question and is presently residing in the rented accommodation in the same CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 12 of 66 locality, while the defendants continue to occupy the jhuggi/ temporary rooms in the property in question.
11. It is asserted by the defendants that the present suit has not been filed by a competent person and no authorization has been filed in support thereof. Material facts have been concealed by the plaintiff and they have not approached the Court with clean hands.
12. On merits, the defendants no.1 and 2 have admitted that they are residing in a portion of the suit plot and have further claimed that Shamsul is in possession of his jhuggi which is also constructed on the plot in question. The service of legal notice has been admitted, but it is claimed that its contents are factually wrong and illegal and untenable. It is asserted that they are not liable to pay damages. It is submitted that the suit is liable to be dismissed.
13. During the pendency of the suit Sh. Shamsul and Rehana who are also in occupation of the part of the property in question (against whom separate Suit No.62/16 has been filed) moved an application under Order 1 Rule 10 CPC for their impleadment as party. The application was allowed vide order dated 22.09.2018 and they were impleaded as Defendant no.3 and 4 in the present suit while the other defendants no.5 to 13 are the proforma defendant being the Chairman and Members of the plaintiff Trust.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 13 of 66
14. The Defendant no.3 and 4 Shamsul and Rehana (defendants no3&4 in suit No.61/16 and defendant No.1&2 in suit no 62/16) in their written statement have explained that they have been impleaded as party in the present suit on their application under Order 1 Rule 10 CPC which was allowed vide order dated 22.09.2018. It is claimed that similar averments have been made by the plaintiff against them in their Civil Suit No 62/2016 and it is claimed that they have not been intentionally made a party in the present suit since their case is based on false and fabricated documents. It is asserted that Defendant no.3 and 4 Shamsul and Rehana have been enjoying the suit property without interruption since last more than 30 years while the plaintiff Trust has been created only in the year 1993 and it does not have any concern with the suit property. The present suit has been filed by the plaintiff in collusion with Defendant no.1 and 2. It is Defendant no.3 and 4 who had in fact provided the accommodation to Defendant no.1 and 2 when they were facing accommodation problem as Defendant no.1 is the samadhi of Defendant no.3 and 4 as their son Ishtiyak Shah got married to the daughter Ma. Gulafasha of Defendant no.1 and 2. A case under Domestic Violence Act has been filed by daughter of Defendant no.1 and 2 against Defendant no.3 and 4 for which reason they are supporting the plaintiff in their case.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 14 of 66
15. It is asserted that the Defendant no.3 and 4 were never given the suit property by Defendant no.1 and 2 Mohd. Sultan and Meena Begum; and neither the plaintiff nor Defendant no.1 and 2 have any right, title in respect of the suit property. It is further explained that Defendant no.1 and 2 used to reside at Shaheen Bagh, but on their request Defendant no.3 and 4 allowed to reside them in the suit property as they were in possession of the entire plot. It is only Defendant no.3 and 4 who have right to claim back the possession from Defendant no.1 and 2 and suit of the plaintiff is not maintainable. It is further asserted that the Defendant no.3 and 4 are in occupation of the suit property for the last more than 30 years and his elder son aged 29 years was also born in the suit property. It is further asserted that the plaintiffs have relied upon false and fabricated documents to claim ownership. It is further submitted that the present suit is liable to be dismissed.
16. The Defendants Shamsul and Rehana had taken the additional plea in Suit No.62/16 that plaintiff is neither the owner nor has any concern with the suit property. They are basing their claim on the documents which are forged and fabricated. It is further asserted that no licence was ever created in favour of the answering defendants and the plaintiff has misunderstood the concept of license under Section 52 of the Easement Act. They have been enjoying the property for the last more than 30 years and are not liable to be ejected.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 15 of 66
17. The defendants have also taken a plea that the suit property is more than Rs.3,02,50,032/ in valuation and thus, the requisite court fees has not been paid on the suit. It is further asserted that a criminal complaint dated 20.07.2013 was filed by the defendants against one Mohd. Muslim, who is an employee of the plaintiff and wanted to tress pass in the suit property. Even though the trust had no right, title in the property in question. Another complaint dated 07.06.2014 was lodged against Mohd. Muslim and his brotherinlaw Ikram who wanted to grab the property and had extended threats to the defendants. Another complaint dated 01.08.2014 was lodged against Muslim, Salim and Israil for giving threats to the defendants. It is submitted that these persons were extending threats to forcibly dispossess the defendants at the behest of the plaintiff. On 05.08.2014 Muslim came along with anti social elements to grab the property of the aforesaid, but the PCR was called and they were all taken to the police station and made to sign some documents. No action was taken by the police for the next 45 days and complaints were made to the senior officers. One unknown FIR was registered on 05.08.2014, copy of which was provided to the defendants only on 09.08.2014. Another complaint dated 04.12.2014 was made to the higher authorities claiming that the threats were being given to the defendants by Dr. Manzoor Alam in order to grab the property of the defendants. It is also claimed that a defective site plan has been filed of the suit property and the exact position of the suit property is not known to the plaintiffs. This clearly shows that the documents and title have CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 16 of 66 been manipulated and fabricated by the plaintiffs. On merits, it is denied that the plaintiff is the owner of the property in question. It is thus, submitted that the suit of the plaintiff is liable to be dismissed.
18. The plaintiffs in their respective replications in the two Suits, have reiterated their assertions as contained in the plaint.
19. Defendant no.5 to 13 are the members of the Plaintiff Trust and are the proforma defendants.
20. Issues on the pleadings were framed in Suit No.61/2016 on 08.10.2016 as under :
(I) Whether the licence of the defendants has not been properly terminated? OPD (II) Whether the plaintiff is entitled for the possession of the suit property? OPP (III) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? Opp (IV) Whether the plaintiff is entitled to damages/ mesne profit or occupation charges and, if so, at what rate and for what period? OPP (V) Relief.
21. The issues were framed again after the impleadment of Defendant no.3 and 4 on 09.04.2019 as under :
(I) Whether plaintiff is owner of the suit property? OPP CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 17 of 66 (II) Whether defendants have become owner of the suit property by adverse possession? OPD (III) Whether plaintiff had inducted the defendants into the suit property as licensee? OPP (IV) Whether plaintiff is entitled to recovery of possession of the suit property? OPP (V) Whether plaintiff is entitled to the decree of injunction as prayed? OPP (VI) Whether plaintiff is entitled to any occupation charges or mesne profits as claimed? OPP (VII) Relief.
22. The present suit shall now be decided on the basis of issued framed on 09.04.219.
23. Issues on the pleadings were framed in Suit No.62/2016 on 08.10.2016 as under :
(I) Whether the plaintiff is owner of the suit property? OPP (II) Whether the defendants are the owners of the suit property by adverse possession? OPD (III) Whether the plaintiff has not affixed the appropriate court fees? OPD CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 18 of 66 (IV) Whether the plaintiff is entitled for the possession of the suit property? OPP (V) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP (VI) Whether the plaintiff is entitled to declaration as prayed for? OPP (VII) Whether the plaintiff is entitled to damages / mesne profit or occupation charges and, if so, at what rate and for what period? OPP (VIII) Relief.In suit No.61/2016
24. The plaintiff in support of its case examined PW1 M. Nasir Hassan Arvi Secretary of the plaintiff Trust, through whom the suit has been filed. His evidence by way of affidavit is Ex.PWE1/X. The other documents relied upon by the plaintiff are Ex.PW1/1 to Ex.PW1/8, Ex.PW1/22 and Ex.PW1/24 to Ex.PW1/27.
25. PW2 Abdul Hannan Chandna is a certified Chartered Accountant who had conducted audit of the accounts of the plaintiff Trust for the Financial Year 199495 which is Ex.PW1/8X and the Income Tax Return for the year 199495 are Ex.PW1/9.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 19 of 66
26. PW3 Sh. Ratan Pal Singh Assistant from DCD, SDMC Office, Saket had produced the original revenue record from 1993 to 1997 and the copy of the same has been proved as Ex.PW3/A. It is deposed by him that revenue record for the year 2013 to 2014 is not available in the office.
27. PW4 Sh. Jai Bhagwan Patwari from SDM office, Defence Colony, has produced the Khasra Girdawari for the year 201314, the copy of which is Ex.PW4/A.
28. The defendant Rihana appeared as DW1 and tendered her evidence by way of affidavit as Ex.DW1/A. Her Voter's I Card is Ex.DW1/1 and that of Shamsul is Ex.DW1/2.
29. DW2 Smt. Rajwati is the neighbour who has deposed that she has been regularly visiting defendants Shamsul and Rihana since 1988 on the suit property and they have been residing and enjoying the complete property absolutely since then. The defendant Mohd. Sultan and his wife were facing accommodation problem after their marriage and they on their request were allowed to occupy a portion of the property in question by Shamsul since son of Shamsul had married daughter of Mohd. Sultan.
In Suit No.62/2016CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 20 of 66
30. In addition to the witnesses already examined in Suit No.61/2016, the plaintiff's in Suit No.62/2016 also examined PW2 Amin Usmani who is the attesting witness of the General Power of Attorney dated 19.07.1993 Ex.PW1/3 which is one of the document through which the suit property was purchased by the plaintiffs.
31. The defendants Mohd. Sultan and Meena Begum had failed to contest the suit and proceeded exparte. Both the suits were contested only by Mohd. Shamsul and Rihana. The other defendants were proforma defendants.
32. DW1 Rihana and DW2 Rajwanti deposed on similar lines as in case No.61/2016.
33. Ld. Counsel on behalf of the plaintiff has argued that ownership is not in dispute. The possession of the property in question has been always with the plaintiff as it is the Truest which constructed the boundary wall. Moreover, the Trust has been organizing various functions on the property in question and there are various newspaper reports, brochures and photographs showing the plaintiff organizing functions on the property in question. A Soil Test was also got done by the plaintiff, the report of which has been placed on record. It all clearly shows that it is the plaintiff who is the owner and also in possession of the property in question. It is further submitted that only an oral license CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 21 of 66 was given to both the defendants Mohd. Sultan and Meena Begum as well as to Shamsul and Rihana which has been terminated vide legal notice which has been duly served upon the defendants. They were only permissive users and permission having been withdrawn they are liable to vacate the property in question. It is further submitted that defendants have no document whatsoever to explain their rightful occupation on the suit property. Though defendants Shamsul and Rihana have claimed to have in possession of the suit property since last 30 years but the only document is Voter's Identity Card which is only of the year 2005. This supports the contention of the plaintiff that the defendants were permitted to live in the property in the year 20052007. Since the defendants despite being directed to vacate the property, have failed to vacate, they are liable to pay damages for use and occupation @ Rs.50 per sq. feet per month i.e Rs.30,000/ from the date of expiry till the handing over of the possession. It is further submitted that the suit of the plaintiff is liable to be decreed.
34. Ld. Counsel on behalf of the defendants Shamsul and Rihana has argued that the documents of title on which reliance has been placed by the plaintiffs mentions Khasra No.228 while the suit property is located in Khasra No.229. More over the GPA Ex.PW1/3 dated 19.07.1992 is neither notarized or attested and has no legal sanctity. It is infact, Shamsul who is in occupation of the property since last more than 30 years and had even got a FIR dated 05.08.2014 CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 22 of 66 registered against the plaintiff for threatening to forcibly evict and also for the threats extended by the plaintiff.
35. It is further argued that no property documents have been placed on record by the plaintiffs showing authorization in the name of the Secretary to file the present suit. The suit has not been instituted by a duly authorized person and his evidence is also evasive and does not establish the ownership in the name of the plaintiff. It is also argued that the plaintiff has also not been able to show as to when and under what circumstances, the defendants were inducted in the property. The suit of the plaintiff is therefore, liable to be dismissed.
36. Written arguments have also been submitted on behalf of the plaintiff and the defendants Shamsul and Rihana.
37. I have heard the arguments and have perused the record and the evidence recorded therein. My issuewise findings are as under :
Issue No. 1 in Suit No. 61/2016(I) Whether plaintiff is owner of the suit property?
OPP Issue No. 1 in Suit No. 62/2016 CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 23 of 66 (I) Whether the plaintiff is owner of the suit property? OPP
38. A preliminary objection has been taken by the defendant that there is no proper authorisation in favour of the plaintiffs to institute the present suit.
39. Mr. Nasir Hasan Secretary of the plaintiff Trust, appeared as PW1 and admitted in his cross's examination that there was no Board Resolution placed on record authorising him to institute the present suit. The deed of declaration of Trust dated 9 September 1988 exhibit PW1/1 has been proved which shows that the trust was constituted with PW5 Dr Mohd Manzoor Alam as its Chairman and six persons as its members. He has relied on the Board Resolution dated 30 July 1997 vide which the resignation of erstwhile Secretary Mr AR Agwan and first Treasurer Mr Saud Shahabudin were accepted and Mr Nasir Hasan and Mr Mehmood Ali were made the Secretary and Treasurer respectively. Though the Resolution has been filed, but the same has not been proved, but at the same time has not been challenged by the defendants. The suit has been filed by the Trust through Mr Nasir Hasan and Mr Mehmood Ali as Secretary and Treasurer. The objection taken by the defendants would have been of significance had all the Trustees including the Chairperson (defendant No.5) had not been made a party to the suit. The chairperson and all the members of trust have CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 24 of 66 been made the defendants and they are not questioning or contesting the present suit. Since the Chairperson and the entire members of the Trust are a party to the present suit, it cannot be said that the suit has not been properly instituted through the Secretary and the Treasurer. It may also be noted that PW1 has also proved the minutes dated 19.04.2016, 06.05.2017 and 28.04.2018 collectively Ex.PW1/X2 vide which the status of the two cases has been reported to the Trust in its Meetings. The suits thus have been validly instituted on behalf of the Trust.
40. The case of the plaintiff is that the plaintiff Trust had purchased the property in question through its Chairman Dr. Mohd. Manzoor Alam (Defendant no.5) having purchased the same on the basis of Agreement to Sell, General Power of Attorney, Affidavfit, Receipt etc. collectively Ex.PW1/3 on 19.07.1993 from Mr. Mohd. Abul Fazal Farooqui. To prove this PW1 M. Nasir Hassan Arvi Secretary of the plaintiff Trust has proved the entire chain of documents in respect of the property in question. Md. Farooqui had purchased this property in question vide registered Sale Deed dated 10.03.1980 Ex.PW1/5 from Mohd. Ashraf Khan Sharifi. The name of Mohd. Ashraf Khan Sharifi is clearly indicated in the Khasra Girdawari and Jamabandi of 1993 to 1996 Ex.PW1/6 as well as in the Khasra Girdawari for the period 31.10.2013 to 14.09.2014 along with translation Ex.PW1/7. The Khasra Girdawari and the Revenue record has also been proved by PW3 Sh. Ratan Pal Singh, Assistant, SDMC Office, Saket for the year 1993 to CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 25 of 66 1997 as collectively Ex.PW3/A. The Khasra Girdawari for the period 2013 to 2014 has also been proved as Ex.PW4/A by PW4 Sh. Jai Bhagwan Patwari. The authenticity of these documents has not been questioned by the defendants.
41. Ld. Counsel on behalf of the defendants has argued that the Agreement to Sell etc. in favour of the plaintiff mentioning the property to be in Khasra No.228 while the sale documents pertain to Khasra No.229 which clearly shows that the suit property is different from the property in respect of which the plaintiff is claiming his ownership. To resolve this dispute the most pertinent document is Khasra Girdawari for the period 1993 to 1996 Ex.PW1/6 (also Ex.PW3/1). The relevant part of Khasra Girdawari Ex.PW1/6 reads as under:
Khasra Girdawari Village Okhla Tehsil Mehrauli District Delhi Khasr Owner with Cultivator Areas Class of Land Changes of a No. Short and with rent according to Rights Jamabandi No. written Last Possession Short with Jamabandi and Rent Khatauni (29.10.199 No. 6) (1993) 219 E.No.894895 E.No.1073 011 Plot Kharif 221 96 Mohd. 1996 of 222 Baijnath Ashraf Trust 223 Bhaskar S/o Khan S/o Chairman 224 Amar Nath Hakeem Dr. Md.
228 Bhaskar 2/5 Mohd. Manzoor CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 26 of 66 229 share, Ayub Alam R/o 223 Savitri Devi D/o Khan 2154 552/E20, Amar Nath 1/5 Pahadi Jakir Share, Mridula Bhojla Nagar in Bhaskar Widow Possession of Richa Bhaskar &Sanjay Bhaskar S/o Ravinder Nath 1/5 share, Bharat Bhaskar Vijay Bhaskar sons and Smt. Gargi Devi Widow, Smt. Bharti Devi Trivedi, Kumar Vandana, Daughters of Tribhuvan Nath equal 1/5 share
42. The bare perusal of the Khasra Girdawari shows that there was total 11 Biswas of land forming part of seven khasra numbers as mentioned above which include Khasra No.228 and 229. Moreover, while in the Agreement to Sell the 11 Biswas are stated to be forming part of Khasra No.228. In the receipt the same has been shown to be part of Khasra No.229 Min. It is quite evident that since there were various khasras involved at the some places it is mentioned 228 while in other places as 229. The Khasra Girdawari as duly proved thus, establishes CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 27 of 66 that originally there were five owners of the property in question who vide sale Deed dated 10.03.1980 Ex.PW1/5 sold it to Mohd. Ashraf Khan Sharifi whose name also finds mention in Khasra Girdawari. Mohd. Ashraf Khan Sharifi then executed the documents of transfer namely agreement to Sell etc. Ex.PW1/4 in favour of the Mohd. Abdul Fazal Farooqui along with other documents i.e GPA, Receipt etc. Mohd. Abdul Fazal Farooqui thereafter, executed the sale documents in favour of the Trust vide set of documents collectively Ex.PW1/3 dated 19.07.1993.
43. Again, the possession of plaintiff Trust since 1993 when they purchased the property, is also mentioned in the Khasra Girdawari Ex.PW3/A and PW4/A. From the chain of documents it is established that they are referring to same property and validly establish the possessory ownership of the property in the plaintiff Trust. The plaintiffs have thus, proved the entire chain of documents through which they have legally come in possession of the suit property.
44. Ld. Counsel on behalf of the defendants have heavily relied on the various statements of Sh. Nasir to argue that he was not a competent witness to prove the purchase of the property as he was not aware of any of the relevant facts. A reference was made to his cross examination where he had admitted that he did not remember when the first meeting was called by the Trust in regard to purchase of suit CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 28 of 66 property. According to him, he was not a part of the meeting and Dr. Manzoor Alam along with some other members had inspected the suit property before its purchase. He was also not aware of any resolution prior to1994 for purchase of suit property. He also admitted that he had not given any notice to convene the meeting of Board of Trustees in respect of suit property. Also, no foundation stone was laid after its purchase. No electricity connection was applied for the suit property. He admitted that he was personally not involved in the purchase of the property and his knowledge is based on the records.
45. Clause 3.21 of the Trust Deed ExPW1/1 dated 9th September 1988 lists one of the objects of the Trust to be to purchase or hire or take on lease lands, buildingsor other immoveable or moveable properties in the name of the Trust. It is in consonance with this object that the property has been purchased through its Chairperson. The Chairperson has acted according to the mandate of the Trust and the property so purchased is being used for the activities of the Trust. Further, whether there existed a Resolution for purchase of the property may be relevant for the purpose of management of the Trust but surely it does not make the purchase transaction witnessed by duly executed legal documents, null and void. The sale documents and the Revenue records establish the possessory rights in the nature of ownership. Merely because PW1 was not aware of the meetings that took place before purchase would not render the sale documents otiose. The oral testimony CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 29 of 66 of the plaintiff fades into insignificance in the face of the documents. In any case the oral testimony in regard to the contents of documents has no evidentiary value. The authenticity of the documents is not under challenge and once proved in accordance with law, are sufficient to be read in favour of the plaintiff. The emphasis of the Ld. Counsel for defendants on the PW1's ignorance about prior meetings or non production of Board Resolution for purchase of suit property, is misplaced.
46. The competency of PW1 M. Nasir Hassan to depose as a witness has been questioned by defendants. It has been argued that PW1 was unable to remember the date of meeting in which he was appointed the Secretary and he has not produced any Board Resolution vide which he was authorized to depose on behalf of the plaintiff. PW1 was appointed as a Secretary of plaintiff Trust in the Board Meeting held on 30.07.1997, as per the testimony of PW1 and since then he has been Secretary till date. He has deposed as a witness on the basis of his personal knowledge and also record and is a competent witness as any other witness to depose. A Board Resolution is not required for a person to depose as a witness in a case. This argument on behalf of defendants also does not hold water.
47. Further, to corroborate the purchase of property, the PW1 has proved the Statement of Account for the year 19941995 Ex.PW1/8. The duly audited Balance Sheet dated 31.03.1995 has been proved by CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 30 of 66 PW2 Sh.Abdul Hasan Chandna, the Chartered Accountant which also reflects that a sum of Rs.80,000/ has been paid for purchase of suit property located in Abul Fazal Enclave.
48. Ld. Counsel on behalf of the defendant has assailed the audit Accounts by arguing that PW1 had deposed that the Records of the Trust upto 20122013 were not available as they got destroyed due to rain water flooding in the basement where the records were kept. Yet the original audit record Ex.PW1/8X has been produced. An explanation was sought to be given that this record was available with Chartered Accountant though he was unable to tell when the Chartered Accountant handed over the records to PW1. It was argued that admittedly, the audit accounts should have been with the plaintiff and PW1 was unable to give any reason as to why it was with Chartered Accountant. In fact, it shows that the plaintiff has selectively produced documents and their authenticity was questionable.
49. Now again the audited account have also been proved by PW2 Abdul Hannan Chandna, the Chartered Accountant as Ex.PW1/8X and ITR for 199495 as Ex.PW1/9. These documents are more than 20 years old and it is evident from their perusal that these are genuine documents. The defendants have also not questioned their authenticity but only the manner of production. These audited accounts reflect the amount of Rs.80,000/ having been paid for purchase of suit property, CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 31 of 66 which further corroborates the purchase of the plot in question by the plaintiff Trust.
50. The defendants had also tried to challenge the ownership of plaintiff by claiming that plaintiff was unable to prove the construction of boundary wall after the property was allegedly purchased by plaintiffs. It is argued that the PW1 in his crossexamination has admitted not being able to produce any record in regard to the construction of boundary wall or the cost so incurred. There is no iron gate fixed in the boundary wall and no lock of the plaintiffs. These admissions fortify that neither the boundary wall was ever constructed nor possession ever taken by plaintiffs.
51. This argument is specious as undeniably there is a boundary wall which is also established by the report of Local Commissioner Ex.PW1/27. Moreover, it is nowhere the case of defendants that they had ever constructed the wall.
52. The question which however arises is that the documents of sale relied upon by the plaintiff Trust are Agreement to Sell, GPA etc.; whether these documents create ownership rights in favour of plaintiff Trust.
Legal sanctity of Agreement to sale, GPA and Will CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 32 of 66
53. It was a known practice in India that the sale transactions of the immovable property was being undertaken on the basis of Agreement of Sell , Affidavit, General Power of Attorney, Will etc. At times the Will and the General Power of Attorney used to be registered. The pernicious practice of sale of properties on these documents led to fraudulent sale and purchase and many innocent people got cheated. Vide Amendment Act 48/2001 Section 53 of Transfer of Property Act, 1882 and Section 17 and Section 49 of Registration Act were amended. After the amendment, an Agreement to Sell which contains a recital regarding possession of property is required to be compulsorily registered. If an Agreement to Sell is not registered, then it cannot be received in evidence of any transaction affecting the property.
54. Section 53A of the Transfer of Property Act before amendment described that where in pursuance of part performance of contract, the transferee took possession of property and did some act in furtherance thereto and the transferor has performed or is willing to perform his part of the contract, then despite the contract not being registered, the transferor could be debarred from enforcing against the transferee any right other than a right expressly provided by the contract. Section 53 A Transfer of Property Act thus, recognized part performance of the contract even if the contract was unregistered and the right of the transferee to remain in possession was protected. However, by way of Amendment Act no.48 of 2001 (w.e.f 24.09.2001) it has been CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 33 of 66 specifically provided that the possession of such transferee cannot be protected under a contract which required compulsory registration. Now any person taking possession in pursuance of an unregistered document, cannot set up a right to remain in possession of the property.
55. To give effect to this principle, Section 17(1A) has been inserted in the Registration Act amending that such contract requires compulsory registration. If such contract is not registered then as per Section 49 of the Registration Act, the same can neither affect any immovable property comprises therein nor it can be received as evidence of any transaction affecting such property or conferee such property.
56. In the case of Sukhwinder Kaur Vs. Amarjeet Singh Criminal Revision 2616 of 2011 decided on 12.01.2012 by High Court of Punjab & Haryana it was noted that there can be two distinct situations; one is where in pursuance to a contract which is unregistered a transferee takes possession, the law maintains that now the possession of transferee cannot be transferred on the basis of unregistered contract which required compulsory registration, cannot be protected. If an agreement to Sell is executed between the parties, the agreement itself does not create, declare assign, limit or extinguish any right, title or interest in the property; rather it gives a right to obtain another document which will when executed create, declare, limit or extinguish any such right, title or interest. Such document which is simplicitor an Agreement CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 34 of 66 to Sell does not require registration as per Section 17(2) (V) of the Registration Act and is receivable in evidence.
57. The most celebrated judgment in regard to the validity and rights created under unregistered Agreement to Sell etc. were decided by the Hon'ble Apex Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana & Anr. 183 (2011) DLT 1 SC. It was observed that any contract of sale (Agreement to Sell) which is not registered would fall short of requirements under Section 54 and 55 of the Transfer of Property Act and will not any right and will not any right, title nor transfer any interest in the immovable property, except to the limited extent granted under Section 53(A) of the Transfer of Property Act. The sale of immovable property as per Section 54 of Transfer of Property Act can be made only through a registered document and an Agreement to Sell does not create any interest or charge on its subject matter.
58. The sanctity of documents namely Agreement to Sell, General Power of Attorney and Receipt to create sale transaction in respect of immovable property came up for consideration in the case of Suraj Lamps & Industries Pvt. Ltd. (supra). Hon'ble Mr. Justice R. V. Raveendran observed that the sale transactions in respect of the immoveable property was being undertaken on the basis of what was commonly known as General Power of Attorney or Sale Agreement, CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 35 of 66 General Power of Attorney, Will Transfer. These descriptions are misnomers as there cannot be a sale by execution of a Power of Attorney nor can there be a transfer by execution of an Agreement of Sale and a Power of Attorney and Will. These kind of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money and to avoid payment of unearned increases. It was noted that these transactions are not to be confused or equated with genuine transactions where the owner of a property grants a Power of Attorney in favour of a family member or friend to manage the property. The ill effects of such transaction was that it makes title verification and certification, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers.
59. In the case of Rekha Gupta Vs. Ashok Kumar and Anr. RFA No.279/2018 decided on 23.03.2018 Hon'ble High Court of Delhi observed that if a sale transaction takes place on the basis of unregistered General Power of Attorney, Agreement to Sell etc., then no legal right would be conferred in terms of such documentation. Also, Section 53 (A) would not enure any protection or benefit to the transferee on the basis of such unregistered documents.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 36 of 66
60. In Hari Gopal Manu Vs. B.S. Ojha 2016 Law Suit (Delhi) 872 Delhi High Court observed that where the defendant comes into possession of the premises in part performance of the Agreement to Purchase which is not registered, then such unregistered document cannot create a valid possessory title in the suit property. Therefore, a person claiming a change in status in the premises from a tenant to the owner can do only by virtue of a registered document. In the absence of any such registered document, his status vizaviz the property cannot change and he cannot claim to have become the owner. It was further observed that a mere Agreement to Sell the immovable property does not create any right in the property save the right to enforce such Agreement. Thus, even if an owner is found to have agreed to sell the property let out to a person, such person would not get any right to occupy that property as an Agreement Purchaser.
61. In the present case, the transaction is of 1993, i.e. prior to 2001 when the amendment was made in Registration Act. Therefore, even though Agreement to Sell was not registered and notarized, it was not so required prior to amendment and the possession of plaintiff by virtue of Agreement to Sell was protected under Section 53A of Transfer of Property Act.
62. A unique feature has emerged in the present case which is that the plaintiffs though have purchased the property on GPA etc. in CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 37 of 66 1993 but their title flows from Md. Farooqui, who had purchased the property through registered sale deed from the erstwhile owners. Significantly, the name of Shri Ashraf Khan, predecessor in interest and that of Ta Awun Trust, the plaintiff are mentioned in the Jamabandi and khasra khatoni since 1993, Ta Awun Trust have been exerting their ownership rights and have been so acknowledged since 1993. None has come forth to claim the ownership in property since 1993 till date, which is about 26 years. The plaintiffs have been claiming their rights in the capacity of an owner since last more than 26 years and have derived their title from the recorded owners and the same has never been challenged till date. Plaintiff by way of long legal possession meet the classical requirement of adverse possession which are nec vi nec clam nec precario as has been explained in Secretary of State for India v. Debendra Lal Khan (1933) LR 61 IA 78. This judgment was endorsed by Justice Jagannadhadas, speaking for a three judge Bench in P Lakshmi Reddy v. L Lakshmi Reddy 1957 SCR 195. It was explained that possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
63. The settled position of law has been laid down by the Privy Council in Perry v. Clissold 1907 AC 73 (PC) (AC p. 79) "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 38 of 66 rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title."
64. The Apex Court in the case of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. (2019) 8 SCC 729, it has been held as under :
"60. The adverse possession requires all the three classic requirements to coexist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession."
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 39 of 66
65. In Ravinder Grewal (supra) the Apex Court considered the earlier view expressed in Gurudwara Sahib v. Gram Panchayat Village Sirthala (2014) 1 SCC 669 that the plea of Adverse Possession cannot be set up by the plaintiff to claim ownership but such plea can be raised by defendant to protect his possession and concluded that it does not lay down the correct law. It was held that there is no bar under Article 65 or any of the provisions of Limitation Act 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession.
66. The ownership rights of the plaintiffs are not only established from the set of purchase documents Ex.PW3/A but their names as owners and are in possessory rights since 1993 in Khasra Girdawari for the period from 31.10.2013 to 14.09.2014 Ex.PW4/A. The defendants in the present case are also not claiming any ownership rights or have challenged or denied the ownership of the plaintiffs in the suit property. Defendants have not claimed to be having any legitimate title in the capacity of an owner in the suit. Nor have they asserted any other person to be the owner in respect of the property in question. Their possession is adequate in continuity in publicity and in extent; it has been perfected in last 26 years into ownership.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 40 of 66
67. Issue no. 1 is decided in favour of the plaintiffs. The plaintiff is shown to be the owner of the property in question.
Issue No. 3 and 4 in Suit No. 61/2016 (Mohd. Sultan & Meena Begum) (III) Whether plaintiff had inducted the defendants into the suit property as licensee? OPP (IV) Whether plaintiff is entitled to recovery of possession of the suit property? OPP
68. PW1 M. Nasir Hasan Arvi in his testimony had deposed that defendants no. 1 and 2 Mohd. Sultan and Ms. Meena Begum, citing their poverty, had made a request to permit them to live in a portion of the plot in question. As a good will gesture, they were permitted to reside in a hutment in a portion measuring 400 sq. ft. as shown in red in site plan Ex.PW1/2. It was deposed that the permission was given in 2007. The defendants Md. Sultan and Meena in their written statement have explained that their soninlaw Mohd. Muslim was working in Institute of Objective Studies, Joga Bai Extension, New Delhi which was the sister concern of Ta Awun Trust, the plaintiff headed by Dr. Manzoor Alam. Md. Muslim had sought permission to reside in the portion of property in question sometime in the year 2000 and on being granted permission, he constructed a temporary room and started residing there. Md. Muslim married Akhtari Begum, daughter of CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 41 of 66 defendants no. 1 and 2 i.e. Mohd. Sultan and Ms. Meena Begum on 30.01.2006. Thereafter, the defendants no. 1 and 2 sought permission from the plaintiff Trust through its Chairman Dr. Manzoor Alam and thereafter, started residing in a portion of the property in question. They constructed a jhuggi and started residing in a portion of the property in question. Defendants no. 1 and 2 have thus, admitted that they had started residing in the suit premises as shown in red in site plan Ex.PW1/2 with the permission of the plaintiff Trust. Their possession in suit property is also confirmed by the report of the Local Commissioner dated 04.04.2015 Ex.PW1/27 who was appointed by the Hon'ble High Court of Delhi to ascertain the physical possession of the defendants in the suit premises. The report of Local Commissioner dated 04.04.2015 noted that on the visit to the property in question, two rooms alongside the right wall were in possession of Mohd. Sultan and his wife Meena while the two rooms under shed alongside the left wall were in occupation of Shamshul and Rihana, who were living in the premises along with their family. The photographs of the scene have also been placed on record which corroborate the report as well as the claim of the plaintiffs in regard to defendants no. 1 and 2 being in possession of the respective portions.
69. The defendants no. 1 and 2 Mohd. Sultan and Meena Begum have failed to contest the present suit and have not led any evidence. It is proved that defendants no. 1 and 2 were in permissive user CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 42 of 66 of the suit property. The permission to continue in the suit premises stand withdrawn by the plaintiff orally and it was also manifested in the legal notice dated 22.08.2014 and thereafter again by filing of the present suit. The defendants no. 1 and 2 being in permissive user of the suit premises, are liable to vacate the same once the permission has been withdrawn by the plaintiff. The plaintiffs are thus, entitled to possession of the suit premises.
70. The issues no. 3 and 4 are decided in favour of the plaintiffs.
Issue No. 4 in Suit No. 62/16 (Mohd. Shamshul & Rehana) (IV) Whether the plaintiff is entitled for the possession of the suit property? OPP
71. The PW1 M. Nasir Hassan Arvi has deposed that defendants no. 1 and 2 Mohd. Shamshul and Rehana, citing their poverty, had requested the plaintiffs to permit them to live in a portion of suit premises and as a goodwill gesture they were allowed to live in a hutment measuring 600 Sq. ft. without any charges and is shown in red in site plan. They had given the assurances that they would vacate as and when they are asked to do so by the plaintiffs. It is further deposed by him that an incident happened in the intervening night of 4 th and 5th August 2014 concerning defendants Shamshul and Rehana which led to CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 43 of 66 registration of FIR No. 612/14 dated 05.08.2014 PS Jamia Nagar Ex.PW1/22. Consequently, the Trustees decided to terminate the license / permission and to ask the defendants to vacate the premises which was communicated orally on 07.08.2014 and thereafter, a legal notice dated 22.08.2014 (Mark G) was served to which a reply dated 17.09.2014 (Mark H) was sent by the defendants.
72. Learned counsel on behalf of defendants has argued that PW1 M. Nasir Hassan Arvi has admitted in his crossexamination recorded on 13.03.2019 that he did not remember the year when he was approached by the defendants to be inducted as licensees in suit property, some resolution may have been passed but it got destroyed in rain. Further, he admitted in crossexamination that there had never been any written communication between the plaintiff Trust and the defendants since 1993 to 2014 but volunteered that he used to visit the property and had interaction with them. No complaint was filed against them from 1993 to 2014.
73. This vague suggestion of defendants to PW1 in cross examination cannot be considered as an admission of possession of defendants since 1993 in the absence of any cogent or documentary evidence. In fact the assertions of defendants is that they are in possession for more than 30 years but they had failed to give either the date or explain the nature of possession. Even if, their claim is accepted, CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 44 of 66 it is abundantly clear that their possession was in the nature of trespasser / encroacher if not as a licensee of plaintiff and so being the case, then too they are liable to be evicted by the plaintiffs who are the rightful owners and have superior possessory / ownership rights in the property in question.
74. PW1 M. Nasir Hassan Arvi had admitted in his cross examination that he had lastly visited the property about two years ago and was aware that some persons are residing in the said plot but he never visited the rooms and was not aware if any electricity fan and television were installed in the rooms. PW1 has also admitted in his crossexamination that he does not remember the year in which the defendants had approached him to be inducted as licensee in the suit premises and that he volunteered that there may have been Resolution passed by the Trust in this regard but further volunteered that the record was destroyed in the rains and the said record was not available.
74. PW1 may not have been able to give the exact date of induction of defendants Mohd. Shamshul and Rehana in the suit premises, but it is not in dispute that defendants Mohd. Shamshul and Rehana are in occupation of the suit premises. It was for the defendants to explain the nature of their possession. It is not claimed by them that they were the owners but merely asserted that they are in possession since last 30 years. However, they were unable to produce even a single CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 45 of 66 document to establish their long possession. It was asserted by the defendants that their son who is 29 years old was also born on the plot in question. However, they were unable to produce any birth certificate or any other document in proof of the birth of their son. In fact, the only document produced by the defendant Ms. Rihana (DW1) is her election identity card Ex.DW1/1, which is also of 08.12.2005. There is no evidence whatsoever in regard to their possession being as old as more than 30 years.
75. It is significant to refer to certain admissions made by Ms. Rihana in her crossexamination when she appeared as DW1. It is explained by her that she originally belongs to District Madhapura, Bihar and when she came to Delhi, she had no residential place. She was initially residing for one month in the house of Shri Nasir beside the suit property. She was allowed to reside in the suit property by one person Babu resident of Old Delhi. She has not seen Babu for last 25 years. She denied the suggestion that she was not allowed by Babu, but by the plaintiff Nasir Hussan on humanitarian grounds to reside there and that he is also a resident of Bihar. Though defendant had claimed to have been permitted to reside there by Babu, but she admitted that these facts were not pleaded either in the written statement or in the affidavit of evidence and this Babu had been introduced for the first time by her in her crossexamination. DW1 Rehana has admitted that she was permitted to reside in the suit premises by Nasir and Mr. M. Nasir Hassan Arvi is CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 46 of 66 the Trustee and Secretary of plaintiff No. 1. These admissions corroborate the case of the plaintiffs that the defendants Mohd. Shamshul and Rehana had been given permission to reside in the premises. The assertions of the defendants no. 3 and 4 Mohd. Shamshul and Rehana that they are in occupation of the premises in question for last 30 years is not believable.
76. Defendants Mohd. Shamshul and Rehana had claimed in their written statement in Suit No. 62/2016 to be in possession of the entire property in question. However, as defendants no. 3 and 4 in Suit No. 61/2016, they had explained that defendants no. 1 and 2 Mohd. Sultan and Meena Begum were their samdhis as the son of defendants no. 3 and 4 had got married to the daughter of defendants no. 1 and 2 and they were facing problem of accommodation and were allowed to occupy a portion of suit premises. Subsequently, matrimonial disputes arose between the daughter of defendants no. 1 and 2 and son of defendants no. 3 and 4 and case under Domestic Violence Act were registered against defendants Mohd. Shamshul and Rehana. Consequently, Mohd. Sultan and Meena colluded with the plaintiffs and took the stand against defendants no. 3 and 4 Mohd. Shamshul and Rehana, even though they had been allowed in the premises by them. Defendant Ms. Rihana as DW1 in her testimony had also deposed to this effect.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 47 of 66
77. First and foremost, if defendants Mohd. Sultan and Meena had indeed been inducted by defendants Shamshul and Rehana, then this fact should have been disclosed in the written statement of Suit No. 62/2016 which was filed only against Mohd. Shamshul and Rehana. However, it is only after impleadment as defendants no. 3 and 4 in Suit No. 61/2016 that the defence was set up that Mohd. Sultan and Meena had been allowed to stay in the portion of the property in question only for the purpose of explaining their possession in the entire suit property.
78. It was asserted by defendants that defendants no. 1 and 2 Mohd. Sultan and Meena Begum were their samdhis as their son was married to daughter of defendants no. 1 and 2 for which reason they permitted defendants no. 1 and 2 to live in the portion of suit property. Defendants no. 1 and 2 in their written statement had mentioned that their daughter had eloped with the son of defendants no. 3 and 4. This implies that defendants no. 1 and 2 came to live in property before they became samdhis of defendants no. 3 and 4. It shows that defendants no. 3 and 4 have falsely claimed to have permitted defendants no. 1 and 2 to live in suit premises. Even otherwise, defendants no. 3 and 4 could not have created a title better than their own, which was that of a licensee.
79. The possession of defendants Mohd. Shamshul and Rehana is only confined to portion shown in red in site plan Ex.PW1/2 which is also confirmed by the report of the Local Commissioner Ex.PW1/27.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 48 of 66 The claim of defendants Shamshul and Rehana that they are in occupation of property for last more than 30 years has not proved. It is also not established that they were in possession of the entire property and the evidence clearly shows that the portion of the property is in possession of Mohd. Sultan and his wife Meena.
80. The plaintiffs in order to establish their possessory rights in respect of entire property have relied upon various newspaper clippings and photographs Ex.PW1/11 to Ex.PW1/16 to assert that they have been carrying out various charitable activities from the plot in question to establish that they always been in possession of the entire property in question and had only given a small portions as already mentioned above to the two sets of defendants merely for permissive usage. These photographs have not been challenged by the defendants and they have also not questioned these various activities being carried out by the plaintiffs from the property in question from time to time. Had the possession of entire pot been of defendants no. 3 and 4, the plaintiffs would not have been able to use the plot for its charitable activities. The defendants have not seriously challenged the holding of charitable activities but have obliquely sought to explain that these activities were merely to gain sympathy and the activities were held with the permission of defendants Mohd. Shamshul and Rehana as there was ample open space.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 49 of 66
81. The defendants have not been able to prove their possession in an independent capacity, but it has been proved to be have been inducted and permitted to stay by the plaintiff Trust. The permission having been terminated vide legal notice dated 22.08.2014 (to whcih a reply had also been sent by the defendants) as well as by filing of the suit, the defendants no. 3 and 4 Mohd. Shamshul and Rihana are liable to be evicted.
Issues No. 2 in Suit No. 62/2016 (II) Whether the defendants are the owners of the suit property by adverse possession? OPD
82. It has already been held in Issue No. 3 and 4 that defendants Mohd. Shamshul and Rehana have been inducted in the premises sometime in 20052007 and they have not been able to prove that they have been in possession of the suit premises for last more than 30 years. Even if their claim is accepted; it needs to be considered whether they have become owners by way of adverse possession. In order to appreciate the claim of ownership of defendants no. 3 and 4 by way of adverse possession, it would be appropriate to first discuss the law in regard to adverse possession.
83. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 50 of 66 tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up the plea of adverse possession.
84. 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 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.
85. The title to property should not remain uncertain and in dispute, but that continued de facto exercise and assertion of a right should be conclusive evidence of the de jure existence of the right. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 51 of 66 possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all, as has been held in Annasaheb Bapusaheb Patil v. Balwant AIR 1995 SC 895, p. 902.
86. The logic of adverse possession was explained in P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 thus:
"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."
87. Nature of title acquired by adverse possession has been discussed in the Halsbury's Laws of England in Para 785 hereunder:
"785. Nature of title acquired: The operation of the statutory provision for the extinction of title is merely negative; it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him."
88. Nature of acquisition has also been explained in Toltec Ranch Co. v. Cook, 191 U.S. 532, 542 (1903). It was observed that CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 52 of 66 adverse possession vests the possessor with the complete title as effectually as if there had been a conveyance by the former owner. But the title is independent, not derivative, and "relates back" to the inception of the adverse possession, as observed. The adverse possessor does not derive his title from the former owner, but from a new source of title, his possession. The "investitive fact" is the disseisin and exercise of possession as observed in Camp v. Camp, 5 Conn. 291 (1824).
89. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274, Justice R S Sarkaria, speaking for a three judge Bench of the Apex Court noted that the concept of possession is "polymorphous embodying both a right (the right to enjoy) and a fact (the real intention).It was observed that it is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Reference was made to Dias and Hughes in their book on Jurisprudence where it was said that if a topic ever suffered from too much theorising it is that of "possession". Much of this difficulty and confusion is caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 53 of 66
90. In Halsbury's Laws of England, 4th Edn., Vol. 28, position of person in adverse possession has been discussed in Para 777 as under:
"777. Position of person in adverse possession: While a person who is in possession of land without title continues in possession, then, before the statutory period has elapsed, he has a transmissible interest in the property which is good against all the world except the rightful owner, but an interest which is liable at any moment to be defeated by the entry of the rightful owner; and, if that person is succeeded in possession by one claiming through him who holds until the expiration of the statutory period, the successor has then as good a right to the possession as if he himself had occupied for the whole period."
91. The settled position of law has been laid down by the Privy Council in Perry v. Clissold 1907 AC 73 (PC) (AC p. 79) "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title."
92. The above statement was approved by the Apex Court in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165 and CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 54 of 66 quoted in Ram Daan (Dead) through LRs. v. Urban Improvement Trust, (2014) 8 SCC 902.
93. The "classical requirement" of adverse possession should be nec vi nec clam nec precario as were explained in Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78 and endorsed by Justice Jagannadhadas, speaking for a three judge Bench in P Lakshmi Reddy v. L Lakshmi Reddy 1957 SCR 195. It was explained that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
94. It was thus held:
"7...Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus."
95. In S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi AIR 1964 SC 1254 it was thus observed by the Apex Court that the possession of a party claiming adverse 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 dispossession of CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 55 of 66 the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
96. The question of perfecting title by adverse possession again came to be considered by the Privy Council in Gunga Govind Mundul & Ors. v. The Collector of the Twenty Four Pergunnahs & Ors. 11 M.I.A. 212, it observed that there is an extinguishment of title by the law of limitation. The Privy Council has observed thus:
"4.The title to sue for dispossession of the lands belongs, in such a case, to the owner whose property is encroached upon ; and if he suffers his right to be barred by the Law of Limitation, the practical effect is the extinction of his title in favour of the party in possession; ...'
97. The two elements of claim by adverse possession were explained in In Annakili v. A. Vedanayagam, 2007 (14) SCC 308, as under:
"24. (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 56 of 66 not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title."
98. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254 It was held that a mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title was not enough to raise such a plea. Long possession was not necessarily an adverse possession and the prayer clause is not a substitute for a plea of adverse possession. The opinion expressed is that plaintiff can take a plea of adverse possession but with full particulars.
99. In ChattiKonati Rao Vs PalleVenkataSubba Rao (2010) 14 SCC 316 it was summed up that mere 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 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 CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 57 of 66 within 12 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.
100. These observations were quoted with approval by The Hon'ble Supreme Court of India in Mallikarjunaiah VS Nanjaiah (Civil Appeal No.7768 of 2011 decided on 26th April, 2019).
101. In Annakili v. A Vedanayagam, (2007) 14 SCC 308, the Apex Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limiataion Act.
102. The ingredients to be proved in the case of adverse possession were explained in Karnataka Wakf Board V Government of India, (2004) 10 SCC 779, as under:
"Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 58 of 66 was open and undisturbed....The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law."
103. As to whether the plaintiff can claim title on the basis of adverse possession, the Apex Court in its judgment Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. (2019) 8 SCC 729 after discussing the case law as mentioned above, held as under:
"Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession."
104. The matter has been examined by a Constitution Bench in M Siddiq (D) through LRs v. Mahant Suresh Das & Ors. 7 (2019) SCC OnLine SC 1440 wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. "Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed."
105. This cited with approval in Sri Uttam Chand (D) Th Lrs . vs Nathu Ram (D) Thr. Lrs. on 15 January, 2020 in CIVIL APPEAL CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 59 of 66 NO. 190 of 2020 (arising out of SLP (CIVIL) No. 16321 of 2011) and it was observed that :
"the limitation period of 12 years of assertion of tile hostile to the true owner to establish title by adverse possession is of utmost significance."
106. From the above case law, it may be summed up that in the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. 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 dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. In order to claim the ownership by way of adverse possession the defendant's possession must be open and hostile and continuous for at least 12 preceding years. Mere possession even if it is for any number of years, will not clothe the person in enjoyment with the title by adverse possession; the important ingredients of adverse possession should be satisfied. The limitation of 12 years creates a title in favour of the person who is in possession of property, which is continuous, open, CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 60 of 66 hostile and adverse to the original owner; it simultaneously extinguishes the remedy of the owner to claim possession after expiry of 12 years.
107. As already discussed in earlier issues, the defendants no. 3 and 4 have not been able to establish that they are in possession of suit property for more then 30 years. Even if for the sake of arguments, it is accepted that they were in possession for more than 12 years, as already discussed mere long possession is not sufficient to establish ownership in the property. It also has to be adverse and hostile to the true owner which is not the case.
108. Whether as licensee or as trespasser / encroacher, mere long possession is not sufficient to create title by adverse possession. Defendants no. 3 and 4 have failed to prove that their possession was open and hostile to that of plaintiffs or that they became owners by way of adverse possession.
109. Issues No. 2 is decided against defendants Mohd. Shamshul and Rehana.
Issue No. 2 in Suit No. 61/2016 (Mohd. Sultan and Meena) (II) Whether defendants have become owner of the suit property by adverse possession? OPD CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 61 of 66
110. Though the issue has been framed in regard to ownership having been acquired by defendants Mohd. Sultan and Meena by way of adverse possession but they have neither raised a claim of being in long possession in their own right nor they have challenged the ownership of the plaintiffs nor asserted their own ownership. The possession is also not of more than 12 years. They have not claimed and also not shown to be in adverse possession of the suit premises and thus, have not become owners by way of adverse possession.
111. Issue no. 2 is decided against defendants no. 1 and 2 Mohd. Sultan and Meena Begum.
Issue No. 3 in Suit No.62/2016(III) Whether the plaintiff has not affixed the appropriate court fees? OPD
112. The defendant has taken an objection that the suit has not been properly valued for the perquisite court fee. In the Suit No. 61/2016, the plaintiff has valued the suit property at Rs.21,52,320/ being the value of 400 sq. ft as per the circle rate for which the defendants Mohd. Sultan and Meena are in unauthorized occupation and has paid the court fee of Rs.23,351/. Likewise, in Suit No. 62/2016, the suit property which is 600 sq. ft. in unauthorized occupation of the CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 62 of 66 defendants Shamshul and Rehana has been valued at Rs.31,71,840/ being the value of the suit property according to the circle rate and has accordingly paid the court fee of Rs.33,310/.
113. It has already been held on the above issues that defendants no. 1 and 2 Mohd. Sultan and Meena are in possession of 400 sq. ft. and defendants no. 3 and 4 Mohd. Shamshul and Rehana are in possession of 600 sq. ft., the suit has been rightly valued for recovery of possession according to the circle rate for the portion in possession of the respective set of defendants.
114. The issues no. 3 decided against the defendants and in favour of the plaintiffs.
Issue No. 6 in Suit No. 61/16(VI) Whether plaintiff is entitled to any occupation charges or mesne profits as claimed? OPP Issue No. 7 in Suit No. 62/16 (VII) Whether the plaintiff is entitled to damages / mesne profit or occupation charges and, if so, at what rate and for what period? OPP CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 63 of 66
115. It has already been held in the discussion above that the defendants no. 1 and 2 Mohd. Sultan and Meena as well as defendants no. 3 and 4 Mohd. Shamshul and Rehana are in unauthorized occupation of the suit premises since the date the permission for stay has been withdrawn by the plaintiffs orally as well as through legal notice dated 22.08.2014. Once, the permission has been withdrawn the defendants are in the capacity of trespasser and are liable to pay the user and the occupation charges.
116. PW1 Nasir Hassan Arvi claimed user and occupation charges at a rage of Rs.50/ per sq. ft. per month i.e. Rs.20,000/ in Suit No. 61/2016 and Rs.30,000/ in Suit No. 62/2016. Though there has not been much challenge to this aspect of the testimony of PW1, but the initial onus was on the plaintiff to establish that this was the prevailing rate of letting out the suit premises. It cannot be overlooked and ignored that the respective portions in possession of the two sets of defendants namely defendants no. 1 and 2 and 3 and 4 are only jhuggies / hutment as is also evident from the photographs Ex. There is only a small portion of the property in occupation of the respective defendants and that too which is more like a temporary hutment that is a temporary constructed building. There is no cogent evidence led by the plaintiff to prove the prevailing rate for the area. Considering the nature of construction, it may be reasonably held that it can be about Rs.10/ sq. ft. which comes to Rs.4,000/ per month from defendants no. 1 and 2 Mohd. Sultan and CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 64 of 66 Meena and Rs.6,000/ from defendants no. 3 and 4 Mohd. Shamshul and Rehana from the date of institution of the suit till the handing over of the possession.
117. Issue No. VI in Suit No. 61/16 and Issue No. VII in Suit No. 62/16 is decided in favour of plaintiffs in both the cases.
Relief
118. In view of the findings on the above said issues, the plaintiffs are declared to be owners in property in question i.e. D18, Abul Fazal Enclave, Jamia Nagar, New Delhi, forming part of Khasra No.228, situated in village Okhla, Tehsil Mehrauli, New Delhi. They are entitled to recovery of possession from defendants no. 1 and 2 Mohd. Sultan and Meena Begum and defendants no. 3 and 4 Mohd. Shamshul and Rehana in respective suits from the portion in red as shown in site plan Ex.PW1/2. The defendants no. 1 to 4 are restrained from creating any third party right in the suit property. The plaintiffs are entitled to damages @ Rs.4,000/ per month in Suit No. 61/2016 and Rs.6,000/ per month in Suit No. 62/2016 from filing of suit till possession from defendants no. 1 to 2 respectively in the two suits. Deficit court fees be paid.
CS No. 210815/2016 (Old No. 61/2016) CS No. 210816/2016 (Old No. 62/2016) page 65 of 66
119. The two suits are hereby decreed. Decree sheets be accordingly drawn. Parties to bear their own costs. File be consigned to record room.
ANNOUNCED in the open Court (Neena Bansal Krishna)
today 27th day of May, 2020 District & Sessions Judge
South East, Saket Courts,
Digitally signed
by NEENA New Delhi.
NEENA BANSAL
BANSAL KRISHNA
Date:
KRISHNA 2020.05.28
17:02:24 +0530
CS No. 210815/2016 (Old No. 61/2016)
CS No. 210816/2016 (Old No. 62/2016) page 66 of 66