Delhi District Court
Smt. Jai Kumari (Now Deceased) vs Shri Raghunandan Sharma on 25 August, 2012
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 608/07
Old Suit No. 1414/06
Unique Case ID No. 02402C0404362006
Smt. Jai Kumari (Now deceased)
Through her legal heirs i.e.
(a) Shri Rajesh Kumar
(b) Shri Rakesh Kumar
(c) Shri Ramesh Kumar
all sons of Late Shri Amar Nath Sharma
r/o A122/2, Ashok Nagar, Delhi110093.
........... Plaintiff.
VERSUS
1. Shri Raghunandan Sharma
s/o Late Shri Ram Pershad
r/o 15M, Riveria Apartment
45, Mall Road, Delhi110054.
2. Shri Gopal Sharma
s/o Shri Daya Ram
r/o 15M, Riveria Apartments,
45, Mall Road, Delhi110054.
......... Defendants.
Date of institution of the suit : 27.07.2006
Date on which order was reserved: 13.08.2012
Date of decision : 25.08.2012
SUIT FOR DECLARATION AND FOR THE CONSEQUENTIAL RELIEF OF
PERMANENT INJUNCTION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff if the sole and absolute owner and in possession of the property bearing no. A122/2, Ashok Nagar, Delhi, measuring about 2005 sq. yards after having purchased the same from Shri Shish Pal Singh vide registered Receipt, Affidavit, registered Will, GPA, Agreement to Sell all dated 25.06.1985. It has been further stated that Shri Shish Pal Singh had purchased the said property from Shri Kanta Prasad vide registered Sale deed dated 25.10.1971. It has been further stated that the plaintiff and her family members are residing in the suit property since the date of its purchase. It has been further stated that the suit property is mutated in the name of the plaintiff in the records of the MCD since 1985 and the plaintiff has been paying the house tax in respect of the commercial activities in the property. It has been further stated that the plaintiff obtained the water connection in her own name in the said property on 27.03.1979 and the plaintiff also obtained the electricity connection in her own name on 21.10.1986. It has been further stated that the plaintiff and her family members are having identity proofs at the address of the suit property. It has been further stated that on 01.07.2006, both the defendants alongwith two other persons came to the plaintiff and stated that they were the owners of the suit property by virtue of the judgment dated 17.08.1961 in suit no. 59/61 titled as Ram Prasad Vs. Bhu Dev and others. It has been further stated that on demand, the defendants handed over the copy of the judgment of the court of Shri D.K. Agnihotri, PCS, Sub Judge, Delhi. The plaintiff has further stated that the said judgment is not applicable upon the plaintiff in respect of the suit property because the plaintiff was not a party in that suit or in any other proceedings. It has been further stated that the plaintiff has been enjoying the suit property since the year 1985 without any interruption in respect of its title or possession. It has been further stated that the defendants have no right, title or interest in the suit property. It has been further stated that in the year 1961, no sale deed of the agricultural land could be executed under the provisions of the Delhi Land Reform Act. It has been further stated that the suit property is governed by the provisions of the Delhi Land Reform Act. It has been further stated that on 28.05.1966, the Delhi Administrator through the MCD issued notification no. F9(2)/66, Law Corp. in exercise of the powers conferred by clause (A) of Section 507 of the DMC Act according to which the agricultural lands were allowed to be sold and purchase in the said area. The plaintiff has taken the stand that in view of the said notification, prior to 28.05.1966, all the sale and purchase of the land in respect of the agricultural land were null and void. It has been further stated that since the claim of the defendants in respect of the premises in question is on the basis of the decree of the year 1961 against Bhu Dev and as such, the said decree is null and void. It has been further stated that moreover, on 15.05.1978 and 19.07.1978, the declaration from the DDA was announced and all the unauthorized colonies were regularized. It has been further stated that since the plaintiff is in possession of the suit property since 1985, and hence the title documents in respect of the suit property in favour of the plaintiff are valid. It has been further stated that the sale deed in pursuance of the orders of the year 1961 is null and void. It has been further stated that otherwise also, the plaintiff is the sole and absolute owner of the suit property by virtue of adverse possession as well. It has been alleged that on 01.07.2006 the defendants issued threats to the plaintiff of dispossession. It has been further stated that if the defendants succeed in obtaining the possession of the suit property from the plaintiff, then the plaintiff shall suffer an irreparable loss and injuries and hence the present suit.
On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of declaration declaring the judgment / decree in suit no. 09/61 titled as Ram Prasad Vs Bhu Dev and others, as null and void and not binding upon the plaintiff. The plaintiff has further prayed for decree of declaration declaring the plaintiff to be the owner / occupant of the premises in question as shown in red colour in the site plan annexed with the plaint by virtue of adverse possession as well as by virtue of title documents and further that the defendants have no right, title or interest in the suit property. The plaintiff has further prayed for a decree of permanent injunction restraining the defendants and their agents from interfering the plaintiff in her peaceful possession of the premises as shown in red colour in the site plan annexed with the plaint permanently. The plaintiff has also prayed for the costs of the suit as well.
2. Written statement has been filed on record by the defendant no.1 stating therein that the present suit has been filed by the plaintiff with malafide intention and ulterior motives only to delay the execution petition pending before Shri Naresh Kumar, Ld. Civil Judge, Tis Hazari Courts Delhi. It has been further stated that suit has not been valued property for the purposes of court fees and jurisdiction; the plaintiff has no locus standi to file the present suit. It has been further stated that the claim of the plaintiff is based on the fact that she had purchased the suit property from Shri Shish Pal Singh who in turn, had purchased the suit property from Shri Kanta Prasad but the plaintiff has not disclosed that Shri Kanta Prasad had himself purchased the property in question from Shri Bhu Dev, the judgment debtor no.1, vide registered sale deed executed by Shri Bhu Dev in August 1973. The defendant no.1 has alleged that the plaintiff has concealed that he is a Transferee Pendetelite of the JD. Defendant no.1 has relied upon an authority cited as 1998 volume III SCC 723 and stated that if resistance or objections are made by Transferee Pendetelite of the JD, the scope of the adjudication would be shrunk to limited question whether he is such a transferee and on finding in the affirmative, the execution court has to hold that he has no right to resist in view of the clear language as contained in Rule 102. It was further held that the abovesaid adjudication can be weighed in admitted facts and even on the averments and the same does not require any enquiry or evidence. Defendant no.1 has further relied upon the authority cited as 2002 volume 1 SCC page 662. It has been further stated that the plaintiff is not the owner of the property in question and is not entitled to any relief. It has been further stated that defendant no.1 herein is proceeding with the decree in the capacity of the legal heir of the deceased of the DH. Defendant no.1 has stated that a decree of Specific Performance was passed in suit no. 1959/61 titled as Ram Prasad Vs. Bhu Dev by Shri B.K. Agnihotri, Sub Judge, regarding the land measuring 42 bighas 16 biswas forming part of khasra no. 180/147,188,186, 755/179, 178, 177, 151, 158/210, 208, 207, 917/95, 189, 356, 772/355, 771/338, 723/210, 789/533, 898/147, 908/429 and 639 situated in revenue estate of village Saboli ilaqa Shahdara, Delhi. It has been further stated that khasra no. 639 falls in the said land for which the suit was decreed. It has been further stated that the said decree was upheld and confirmed by the Hon'ble High Court of Delhi in RFA no 142D/1961 titled as Ramji Lal and others Vs. Ram Prasad and Anr. decided on 28.10.1971. It has been further stated that the execution proceedings were commenced against the Judgment Debtors for execution of the Sale Deed and for obtaining the possession of the said land from the JDs. It has been further stated that the objections against the decree were dismissed by the court of Shri R.L. Chugh, Ld. Sub Judge 1st Class, Delhi on 23.07.1976. It has been further stated that Judgment Debtor no. 2 to 5 except the Judgment Debtor No.1 filed first appeal against the dismissal of the objections which was registered as EFA 5/1976 before the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi, vide orders dated 03.02.1978 directed the Decree Holder to deposit before the executive court an additional sum of Rs.7000/ for execution of the sale deed in respect of the land for compliance of the decree by the JDs and further ordered the JDs no. 2 to 5 to hand over the possession of the land to the DH. It has been further stated that the DH after depositing the amount of Rs.7000/ in favour of the JDs in the execution proceedings got the sale deed executed and registered in his favour from the JDs. It has been further stated that the DH obtained possession of the entire land except the land situated in khasra no. 898/147 (211) and 908/429 (010) and 639 (300) on 10.05.1982 through warrants of possession and police aid under the orders of the court. It has been further stated that the property in the present suit falls in khasra no. 639. It has been further stated that thereafter, possession of khasras no. 898/147 and 908 was also obtained and now only the possession of khasra no. 309 is to be taken from the Objectors. It has been further stated that plaintiff despite the fact that she is aware about the pendency of the execution petition has filed the present false suit only to cause confusion and delay the execution. It has been further stated that the documents in favour of the plaintiff are merely notarized and there is no sale deed in favour of the plaintiff. It has been further stated that merely the paying of the house tax, the existence of the mutation does not give any title or ownership. It has been further stated that the plaintiff is not the owner of the suit property by virtue of the documents relied upon by the plaintiff. Defendant no.1 has denied that by virtue of adverse possession in the suit property since 1985, the plaintiff is the owner. It has been further stated that the plaintiff is Transferee Pendetelite. It has been further stated that the deceased DH Shri Ram Prasad had bequeathed the suit property which is in khasra no 639 to defendant no.1 and defendant no.2 but defendant no.2 is not claiming any right. It has been further stated that defendant no.1 is the owner and he has been brought on record as heir of the deceased DH. It has been further stated that the plaintiff is in illegal occupation of the suit property. It has been further stated that the decree dated 17.08.1961 is final and execution petition is already pending disposal. The jurisdiction of this court has not been denied by defendant no.1. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.
3. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed on record by defendant no.1. In the replication, the plaintiff has taken the stand that she was not aware about the execution proceedings and she came to know about the execution proceedings only on 01.07.2006, when the defendants with two other persons came to the plaintiff. The plaintiff has further stated that the defendant is playing fraud under the garb of the decree, (if any). It has been further stated that the plaintiff was not a party in that suit and the defendants have no sale deed. It has been further stated that the defendants have obtained more than 62 bighas of the land whereas, the decree was only for 34 bighas.
Vide orders dated 01.05.2007, the defendant no.2 was proceeded exparte by my Ld. Predecessor and as such, defendant no.2 has not filed on record any written statement or led any evidence.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 09.10.2007.
1) Whether the plaintiff is entitled to relief of Declaration as prayed for ? OPP
2) Whether the plaintiff is entitled to relief of Permanent injunction as prayed for ? OPP
3) Relief.
EVIDENCE In order to prove their respective cases, the plaintiff has examined her son and SPA as well Shri Rakesh Kumar Sharma as PW1. The defendant no.1 has examined himself as DW1.
As stated by me herein above, defendant no.2 has neither filed any written statement nor led any evidence.
Shri Rakesh Kumar Sharma, the son and SPA of the plaintiff has been examined by her as PW1 and in his evidence by way of affidavit, PW1 has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record SPA in his favour executed by the plaintiff as PW1/1, photocopy of the Receipt as Ex. PW1/2, photocopy of the affidavit by Shri Shish Pal Singh as Ex. PW1/3, photocopy of the Will as Ex. PW1/4, photocopy of the GPA as Ex. PW1/5, photocopy of the Agreement to Sell as Ex. PW1/6, photocopy of the sale deed in favour of Shri Shish Pal Singh executed by Shri Kanta Prasad as Ex. PW1/7, photocopy of the house tax bill as Ex. PW1/8, photocopy of the water bill in the name of the plaintiff as Ex. PW1/9, photocopy of the electricity bills in the name of the plaintiff as Ex. PW1/10, photocopy of the election I card of her son Shri Rajesh Sharma as Ex. PW1/11, photocopy of the election I card of Smt. Kamal Sharma w/o Shri Rajesh Sharma as Ex. PW1/12, photocopy of the election I card of her son Rakesh Sharma as Ex.PW1/13, photocopy of the election I card of Smt. Rashmi Sharma w/o Shri Rakesh Sharma as Ex. PW1/14, photocopy of the election I card of Shri Ramesh Sharma as Ex. PW1/15, photocopy of the election I card of Smt. Bhawna w/o Shri Ramesh Sharma as Ex. PW1/16, photocopy of the driving licence of Shri Rakesh Kumar at the address of the suit property as Ex. PW1/17, photocopy of the site plan as Ex. PW1/B, photocopy of the ration card of Shri Rakesh Kumar as Ex. PW1/17A. (The original of the documents have been returned and the photocopies have been exhibited after returning the original documents as is reflected from the proceedings conducted on 27.07.2010 when the affidavit of PW1 was tendered in evidence).
In the cross examination, PW1 has stated that he has not brought any medical papers of the plaintiff but he had earlier filed the same. PW1 has further stated that the SPA was signed by her mother. PW1 has further stated that he cannot tell the meaning of Adverse Possession and his counsel can tell. PW1 is unable to find out the judgment and decree dated 17.08.1961 from the court file. PW1 further states that he has met defendant no.1, 45 years ago for the first time in the court itself and he did not know the defendant earlier. PW1 further states that he has never met defendant no.1 at his house. PW1 further states that his mother never met defendant no.1 as she never used to go to the court. PW1 further states that defendant no.1 never came to his house to meet his mother. PW1 further states that in the year 1985, he was around 13 years old. PW1 further states that his mother purchased the suit property from Shri Sri Pal who purchased the suit property from Shri Kanta Prasad and he cannot tell as to from whom Shri Kanta Prasad purchased the suit property. PW1 further states that defendant does not have any site plan or sale deed or title documents. PW1 has admitted it to be correct that Ex. PW1/5, the GPA, and Ex. PW1/6 Agreement to Sell are not registered. PW1 further states that the site plan Ex. PW1/B was prepared in his presence. PW1 further states that the architect and the valuer had come to his house for preparation of the site plan. PW1 has admitted it to be correct that the documents Ex. PW1/1 to Ex. PW1/6 were not executed before him as he was a small boy at that time. PW1 has further admitted it to be correct that for getting the electricity and water connections, they did not obtain any permission from defendant no.1. PW1 further states that two persons had come, whom he did not know, about 45 yeas ago and told them that they were the owners of the property in question. PW1 is unable to tell as to whether judgment dated 17.08.1961 is binding on them or not.
The defendant no.1 has examined himself as DW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the defendant no.1 in the written statement. He has filed on record the certified copy of the orders dated 15.10.2008 passed by Shri Deepak Dabas, the then Ld. Civil Judge, Delhi as Ex. DW1/1.
In the cross examination DW1 has admitted it to be correct that the suit property was purchased by the plaintiff from Shri Kanta Prasad by virtue of registered sale deed. DW1 has further stated that the legal proceedings against the suit property are pending from the year 1961. DW1 has admitted it to be correct that no suit or other legal proceedings was initiated by him against the plaintiff herein except the present suit. DW1 is unable to admit or deny the suggestion that the suit property was sold out by Shri Kanta Prasad in favour of the plaintiff on 25.10.1971. DW1 is unaware as to whether the plaintiff and her family members were residing in the suit property right from the year 1971. DW1 is further unaware as to whether the suit property was mutated in the name of the plaintiff in the records of the MCD. DW1 is further unaware as to whether house tax of the suit property was deposited by the plaintiff in the capacity of registered owner of the suit property. DW1 does not have any specific document in respect of the suit property in his favour. DW1 has denied the suggestion that the plaintiff was the rightful owner of the suit property. DW1 further states that plaintiff herein was never added as a party by him in the execution petition or in any other legal proceedings filed by him. DW1 has admitted it to be correct that the entire bigha falling in khasra no. 639 was the agricultural land in the year 1961. DW1 further states that he does not know as to whether in the year 1966, i.e. on 08.05.1966, Delhi Administration had issued notification regarding the change of use of the agricultural land. DW1 does not know as to whether on 15.05.1978 and 19.07.1978, the DDA had regularized the entire land for abadi. DW1 has admitted it to be correct that he has not filed on record any sale deed on the court record or any site plan with regard to the suit property. DW1 has further stated that there was only one agreement between Shri Ram Prasad and Shri Bhu Devi for 42 bigha and 16 biswas. DW1 further stated that Shri Bhu Devi did not tell him at any point of time that he was the owner of 126 bighas of the land. DW1 has admitted it to be correct that against the orders Ex. DW1/1, a CM (main) is already pending before the Hon'ble High Court of Delhi. DW1 has admitted it to be correct that the government has already acquired 3 bigha 16 biswas of the land out of the land of 42 bighas 16 biswas. DW1 has admitted it to be correct that agreement executed in between Shri Ram Prasad and Shri Bhu Devi was with respect to the vacant land only and now in respect to the built up houses. By way of volunteer DW1 has stated that at that time, there were no built up houses. DW1 has admitted it to be correct that in the surroundings of the suit property, the abadi is there right from the year 1971. DW1 has admitted it to be correct that the land mentioned in the agreement in between Shri Ram Prasad and Shri Bhu Devi was never mutated in his name as well as in the name of his father in the revenue records of the MCD. DW1 has admitted it to be correct that the suit property fell in the area of Ashok Nagar. By way of volunteer DW1 has stated that the same is situated on the land of Saboli village. DW1 has admitted it to be correct that in the year 1971, Shri Kanta Prasad carved out the plots of the land falling in khasra no. 639 and sold out the same. By way of volunteer, DW1 has stated that the same was done by Shri Kanta Prasad illegally because a decree was already there in the year 1961. DW1 has denied the suggestion that he has filed the false execution before the court by not impleading Jai Kumari.
I have carefully gone through the entire material on record and heard the submissions of the Ld. Counsel for the plaintiff. The Ld. Counsel for the plaintiff has also filed on record the written final arguments. I have also carefully gone through the written final arguments filed on record by the plaintiff. However, despite the grant of repeated opportunities, the defendants failed to address the arguments orally or to file on record the written final arguments.
5. My issuewise findings on the abovesaid issues are as under:
Issues No. 1 and 2.
Both these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit.
The factual controversy and the evidence led by the parties, has already been narrated herein above.
The vital question to be considered by this court is as to whether the judgment and decree dated 17.08.1961 in suit no. 59/61 titled as Ram Prasad Vs. Bhu Dev Sharma and others is null and void and not binding upon the plaintiff.
In the written final arguments filed on record by the plaintiff, the plaintiff has narrated the sequence of the facts which has not even been pleaded by the plaintiff in the plaint. The plaintiff has argued that it is a case of excess land than the decree. The alleged khasra no. 639 has been wrongly mentioned in the sale deed. No decree was passed for possession and no sale deed has neither been filed by the defendant on record nor the same has been proved. It has been further argued that the defendant has failed to raise any objection in respect of the title of the plaintiff in the property. It has been further argued that PW1 has not been cross examined by the defendant on the documents proved on record by the plaintiff and on the factual aspect of possession. It has been further argued that the defendant never came in possession of the property nor the defendant has any right, title or interest therein. It has been further argued that the plaintiff is occupying the property as owner by virtue of the title as well as by way of adverse possession. It has been further argued that DW1 in the cross examination has admitted that the plaintiff has purchased the property from Shri Kanta Prasad. DW1 has further admitted that no suit or other legal proceedings were initiated by him against the plaintiff. It has been further argued that DW1 has admitted the contents of the plaint and the plaintiff has been able to prove his case. It has been further argued that no suit was ever filed by the defendant against Shri Kanta Prasad or Shri Sri Pal or the plaintiff at any point of time.
Needles to mention that despite grant of opportunities, the defendants failed to address the arguments orally and also failed to file on record the written final arguments in counter to the written final arguments filed on record by the plaintiff.
The settled law is that the plaintiff has to prove his own case and has to stand upon his own legs in order to obtain the relief from the court. The plaintiff cannot be allowed to take benefit of the lacunas, if any left by the defendants in proving his own case. The plaintiff has to prove his own case by way of independent, cogent and reliable evidence.
First of all, it has to be seen that in the case in hand, the plaintiff has not appeared in the witness box. Rather, the son and attorney of the plaintiff has been examined by the plaintiff as PW1. The aforesaid son and attorney of the plaintiff submits that he has not filed on record any medical papers of the plaintiff in the evidence by way of affidavit PW1. PW1 has further stated that his mother is very critical and suffering from kidney problem and various ailments. As stated by PW1 in the cross, nothing has been placed on record by PW1 to prove the abovesaid submission and to prove the stand that plaintiff is suffering from various ailments and not able to appear and depose before the court. In the authority cited as AIR 2005 Supreme Court 439 titled as Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd., wherein it has been held as under: "Civil P.C. (5 of 1908) O. 3, Rr. 1, 2 Power of attorney holder Cannot depose in place and instead of principal."
In the light of the ratio of the above stated authority, I am of the opinion that the testimony of PW1 who is the son and attorney of the plaintiff cannot be relied upon. Furthermore, it has to be seen that the attorney and son of the plaintiff is not in the knowledge of the factual position and as such, he has no personal knowledge of the case as is reflected from the cross examination of PW1. PW1 in the cross examination categorically submitted that two persons had come, whom he did not know, about 45 years ago and they told them that they were the owners of the property in question. PW1 has further stated that he cannot tell whether the judgment dated 17.08.1961 is binding upon them or not. In these circumstances, I have no hesitation to hold that in the light of the factual matrix, in the case in hand, the testimony of PW1 cannot be relied upon.
Otherwise also, it has to be seen that the plaintiff has claimed the ownership on the basis of Ex. PW1/1 to Ex. PW1/6 which are the GPA, Agreement to Sell and receipt etc. PW1 in the cross examination has categorically admitted that the GPA and Agreement to Sell are unregistered. PW1 further admits in the cross that the said documents were not executed before him as he was a small boy at that time. The executor of the said documents Shri Sri Pal Singh has not been examined by the plaintiff at all. As such, I have no hesitation to hold that the above documents have not been proved at all by the plaintiff in accordance with the provisions of the Indian Evidence Act. It is true that DW1 has admitted in the cross that the suit property was purchased by the plaintiff from Shri Kanta Prasad by virtue of the registered sale deed but it has to be seen that the case of the plaintiff in the cross is to the effect that the suit property was purchased by her from Shri Sri Pal Singh who in turn had purchased the suit property from Shri Kanta Prasad. Furthermore, the admitted position is that there is no registered sale deed in favour of the plaintiff. As such, the above admission of DW1 in the cross cannot come to the help of the plaintiff. Furthermore, the abovesaid documents cannot confer any right, title or interest with respect to the suit property i.e. the immovable property in favour of the plaintiff in the light of the ratio of the authorities cited as 2011 (4) Civil Court Cases 558 (S.C.) titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. wherein it has been held as under: "Transfer of Property Act, 1882, S. 54, Registration Act, 1908, S. 17 Transfer of immovable property Sale agreement, general power of attorney and Will do not convey any title nor create any interest in an immovable property Immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance."
The present suit is a suit for possession filed by the plaintiff on the basis of her title. In the light of the above discussion, I have no hesitation to hold that the plaintiff has utterly failed to prove her title over the suit property.
Now coming to the plea of adverse possession, in the authority cited as Saroop Singh v. Banto and Ors. (2005) 8 SCC 330, Apex Court held :
"In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. ....... "Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. The said statement of law was reiterated in T. Anjanappa and Ors. v. Somalingappa and Anr. 2006) (8) Scale 624 : (2006) 7 SCC 570, stating :
"It is wellrecognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
In the light of the ratio of above stated authorities, I am of the opinion that the plaintiff cannot claim any right, title or interest over the suit property by way of adverse possession.
Furthermore, the defendant no.1 i.e. DW1 has filed on record the orders dated 15.10.2008 passed by Shri Deepak Dabas, the then Ld. Civil Judge, Delhi, in execution no. 82/05. Vide the abovesaid orders, the objections of the objectors were decided. The above stated execution petition was filed out of the judgment and decree dated 17.08.1961 which has been assailed by the plaintiff in the present suit. A perusal of the abovesaid orders clearly reveals that the ground which have been taken by the plaintiff in the present suit have been categorically dealt with in the above stated orders dated 15.10.2008. In the case in hand, the plaintiff purchased the suit property from Shri Shish Pal Singh, who in turn had purchased the suit property from Shri Kanta Prasad. It has already been held in the orders dated 15.10.2008, Shri Kanta Prasad was Transferee Pandetelite and as such, he was bound by the decree. I am of the opinion that if Shri Kanta Prasad was Transferee Pendetelite then Shri Shish Pal and consequently the plaintiff cannot derive a better title from them than he himself had. Furthermore, the paying of the house tax and having the electricity and water connections, cannot change the true legal character. In the authority cited as Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Anr. reported as 1998 Vol. III SCC723, it has been held that if the resistance or objection is made by Transferee Pendetelite of the Judgment Debtor, the scope of adjudication would be shrunk to limited question whether he is such a transferee and on finding in the affirmative, the executing court has to hold that he has no right to resist in view of clear language as contained in Rule 102. It was further held that the above said adjudication could be made even on the admitted facts and on averments as well and did not require any enquiry or evidence. As such, I am of the opinion that even if the submission of the plaintiff to the effect that she was not aware about the pendency of the suit or the judgment and decree in question, then also, she is bound by the decree. I am also of the opinion that the notification which has been relied upon by the Ld. Counsel for the plaintiff was having a limited effect because as per the notification, the land in question seems to be a rural area and was to be considered as an urban area and besides, this, there was no effect of the said notification. Ld. Counsel for the plaintiff has further argued that no sale deed has been filed on record by the defendant. Be that as it may. I have already stated herein above that it is the plaintiff who has come to the court to seek the relief and it is for the plaintiff to prove his case by way of independent, cogent and reliable evidence and the plaintiff cannot be allowed to take benefit of the lacunas left by the defendant. I am also of the opinion that the plea of the plaintiff that the defendant no.1 has already obtained the possession of the excess land when he was entitled for judgment and decree is also of no help to the plaintiff because khasra no. 639 has been mentioned in the above stated judgment and decree dated 17.08.1961 and the plaintiff who has derived her title from Shri Shish Pal who in turn derived his title from Shri Kanta Prasad who was Transferee Pendetelite is bound by the said judgment and decree.
In the light of the above discussion, I have no hesitation to hold that the plaintiff has utterly failed to prove issues no.1 and 2 in her favour. As such, both the abovesaid issues are hereby decided against the plaintiff.
Relief.
In the light of my findings upon the issues no.1 and 2, the suit of the plaintiff is hereby dismissed but with no orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 25th day of August 2012 JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.