Delhi District Court
Shri Prem Singh vs Shri Rameshwar Dayal on 5 October, 2007
1
IN THE COURT OF SHRI M.C.GARG, ARCT, DELHI.
RCA No. 8/06
Shri Prem Singh,
S/o Late Shri Kheman Ram,
R/o B-2/16, Ashok Vihar,
Phase-II, Delhi-110052. ...Appellant
Versus
1. Shri Rameshwar Dayal
S/o Sh. Ram Narain,
R/o Ram Nagar,
Shahdara, Delhi.
2. Shri Om Prakash,
S/o Sh. Ram Narain,
3. Sh. Mohan,
S/o Sh. Ram Narain,
4. Smt. Phoolwati,
Widow of Sh. Ram Narain,
Respondents No. 2 to 4
R/o House No.16,
Plot No.10/62/16, Katra Kheman Ram,
Andha Mughal, Bagh Kare Khan,
Delhi. ...Respondents
2
Date of Institution: 28.10.2005
Judgment Reserved:27.09.2007
Date of Judgment: 05.10.2007
ORDER
1. This Civil appeal arises out of the Judgment dated 01.2.2005 passed by learned Civil Judge Delhi dismissing the suit bearing No. 991/02 as barred by limitation. The suit was instituted by the Appellant for recovery of possession of the suit property being a parcel of land bearing No, 10/62/16 Municipal No. 4/18, being part of Khasra No. 109 and 110, situated at Katra Kheman Ram, Bagh Kare Khan, Andha Mugal, Delhi shown red in the site plan attached with the plaint against the respondents.
2. The suit was filed on the allegations, that late father of the appellant Chaudhry Kheman Ram was the owner and landlord of the suit premises. He inducted late Shri Ram Naraian father of first Respondent as a tenant therein sometimes in 1945 only in respect of the land on monthly rent as was fixed. The tenant raised superstructure over the tenanted property. A 3 suit for recovery of rent was filed by his late father against deceased Ramnarain, after a dispute arose between them about the rate of rent which was decreed on 26.3.1957. The decree for payment of rent also provided for ejectment of the tenant from the suit land in the event of non payment of decreetal amount. However there was no mention in the decree for removal of superstructure. The said Decree could not be executed on account of objections raised by the deceased tenant as to the want of slum permission. It was so held and ultimately ESA filed by the tenant was dismissed in 1966 which was filed against the order of Additional District Judge holding that no such permission was required. The execution thereafter was adjourned sine die after holding that the decree was in executable as there was no provision in the decree to remove superstructure.
3. Chaudhary Kheman Ram expired in 1969 leaving behind, the appellant as his only legal heir, who inherited the suit property and became its owner/landlord since than. In the meanwhile the tenant continued to hold over the property till his death. At no point of time he questioned the 4 ownership of his father qua the suit property. Thereafter the first respondent being the son of the deceased tenant and his other family members started residing in the property. They also never disputed the ownership of his father till his death or even thereafter till 1973.
4. Respondents for the first time set up adverse title against the Appellant by filing a suit for declaration in 1973 claiming to be the owner of the suit property by way of adverse possession, which suit was however dismissed for non-prosecution without notice to the appellant. However when they wanted to install a water connection claiming as owner of the property in 1975 it was objected to by the appellant. Thereafter the appellant also filed a suit for recovery of mesne profit against the wife of deceased tenant some times in 1981. In the written statement the claim of adverse possession was again reiterated and the factum of filing of the suit for declaration and its dismissal was disclosed. Hence the appellant filed the suit subject matter of the appeal on 28.5.1982 for recovery of possession within limitation as prescribed under Article 65 of the Limitation Act but 5 the same has been dismissed as barred by limitation vide impugned order dated 1.2.2005. Hence this appeal.
5. In their written statements respondents admitted relationship of landlord and tenant between Ch. Kheman Ram, late father of the appellant and deceased Ram Narain. However they objected to the maintainability of the suit on the ground of limitation, due to non execution of the decree for ejectment passed in 1957 within a period of 12 years. It was stated that because of the aforesaid the tenancy of the deceased Ramnarain also stood determined. After his death, the respondents continued occupying the property as trespassers and after expiry of 12 years since than, they became owner by adverse possession. It was submitted that the appellant in his notices dated 6.11.1970 and 9.8.1972 himself described the first respondent as a trespasser / unauthorized occupant. Thus the suit was barred by limitation.
6. No replication was filed by the appellant. The court below framed following issues :
6
i) Whether the suit is properly valued for the purpose of court fees and jurisdiction? OPP
ii) Whether the plaintiff has locus standee to file the present suit? OPP Iii) Whether the suit is barred by limitation? OPD
iv) Whether suit is not maintainable against defendants no. 2 to 4?OPD
v) Whether suit is not maintainable as stated in preliminary objection number 2 of the written statement? OPD
vi) Whether the plaintiff is entitled for the relief of possession as prayed for? OPP
vii) Relief.
7. The than Civil Judge ( Hon'ble Mr. Justice J.M. Malik) who tried the suit initially held that the suit was barred by the principles of res-judicata on account of non execution of the ejectment order passed in 1957. The aforesaid decision was given only by deciding issue No.5. The said order was challenged in appeal and was reversed by the ld. Additional District Judge. It was held that the appellant being the son of late Ch. Kheman Ram who was the owner of the property had the locus standii to file the suit. 7 However the case was remanded back to the Civil Judge with a direction to also decide other issues. Some observations made by the appellate court are as under:
The onus of establishing the issue was on the defendant. This appeal is therefore to be disposed of by scrutiny of the correctness of the finding on issue no 5. The facts for the purpose of disposal of the issue no 5 to the effect that plaintiff's father who was admittedly the landlord of the predecessor in interest of the defendant had obtained an ejectment decree in the year 1957 and that decree had not been put to execution. There was no evidence that any attempt had been made by him to obtain the permission of the Competent Authority under the Slum Areas Act. There was, however, a clear assertion that deceased was treated to be in possession by holding over so much so that a decree for mesne profits was also passed against him in the year 1963. there is no specific denial in the written statement about the fact of passing of this decree. It has, therefore, to be taken as established that the DH Kheman Ram namely plaintiff's father irrespective of the fact that the decree had not been put to execution did not treat Ram Narayan, deceased as a tenant in the property, as evidenced by the 8 fact that he sued him for the recovery of mesne profits for use and occupation and not for rent. The judgment of Hon'ble Delhi High Court on which the Ld counsel for the appellant placed reliance reported in AIR 1983 DELHI 114 has a direct application to the facts of the present case because the facts are similar in as much as here also the ejectment decree was not put to execution and no permission even of the Competent Authority under the Slum Areas Act had been applied for and that the decree remained unexecuted against the tenant till his death and thereafter a suit for recovery for possession has been brought against his legal heirs which suit was held to be perfectly maintainable.
8. The Ld. civil Judge after remand decided issues No. 2 and 4 in favor of the appellant but dismissed the suit by returning a finding on issue No.3 against him by holding that the suit was barred by limitation. It was observed ;
"It is admitted case that decree of ejectment passed against predecessor in interest of defendants was not executed by the plaintiff due to the fact that Slum Areas Act had come into operation and after that plaintiff could not get the required permission from the 9 concerned authority. From the plaint and statement of the plaintiff also, it is very much reflected that at no point of time predecessor in interest of defendants or the defendants were allowed to remain in possession of the suit property meaning thereby they were residing against the wishes of the plaintiff.
Now, the question comes that what is meant by term 'adverse'. To my mind, this term simply refers to a situation where a particular person is in possession of the property without the consent and permission of its owner or other person as the case may be. In the present suit, plaintiff became owner of the suit property on 29.5.69. As per the judgment of Justice Sultan Singh defendants had only one status in respect of suit property i.e. of tress passer. The tress passer can not said to be having possession of the property with the consent and permission of the owner. Simply because the trees passer claimed his title over the property later on, does not make his possession in the suit property prior to such claim, to be a lawful one. It is different situation, when a person claims title on the basis of his adverse possession. However, when a person claims his title over a property otherwise, then the interpretation of the term 'adverse' does not remain the same. For the first situation the requirement under the law has been described in the case laws cited by 10 the plaintiff. But for the second situation, these case laws are not helpful.
It is a different question whether the defendants have perfected their title by way of adverse possession or not. However, this question is of no use herein as far as period of limitation provided for plaintiff is concerned. If a person is in possession of the property in hostile manner, but he does not claim any title by way of adverse possession even then his possession in property shall be said to be hostile towards the owner, though this hostile possession may not be sufficient for defendant to acquire title over the property by way of adverse possession. In the present case defendants had been in possession of the suit property in hostile manner as they were never given consent to remain in possession.
Therefore, in my considered opinion in the present case the date from which the possession of the defendant is to be termed as adverse to the plaintiff is the date when the plaintiff acquired the right to file this suit i.e. 26.5.69, as the defendants or predecessor in interest of defendants were never in permissive use of the property after 26.3.57 and therefore, time period to file this suit for possession lapsed on 26.5.81. Present suit was filed on 28.5.1982 in such circumstances I find this 11 suit to be time barred."
9. The appellant has assailed the aforesaid Judgment as erroneous and contrary to law, by submitting that the trial court ignored the essential conditions for setting up the claim of adverse possession. It is submitted that before 1973 no claim of adverse possession was ever set up by the respondents and the decree of ejectment passed in 1957 could not be executed due to the objection raised by late Shri Ram Narain that slum permission had not been obtained. However the said objection was not found sustainable by the ld. Additional District Judge who maintained the findings of the executing court in this regard. ESA filed by the respondents was dismissed by the High Court in 1966 as not pressed. However the ejectment decree could not be executed even thereafter as there was no direction in the decree to remove the super structure and thus the execution application was adjourned sine die in May 1966. Non execution of the decree therefore made no difference to the status of Ram Narain. He continued to be a tenant by holding over till his death and thereafter his 12 legal heirs inherited the same status.
10. It is stated that the findings of the trial court, that adverse possession can be claimed, merely by remaining in possession of the property for a long time is not sustainable. It is submitted that the trial court also went wrong in observing that there was no necessity to perfect one's title for a period of more than 12 years next before setting up the claim of ownership by adverse possession openly to the knowledge of the owner. That the reliance placed by the court below on the Judgment delivered by Hon'ble Mr. Justice Sultan Singh as reported in AIR 1983 Delhi 114 was misplaced as the said Judgment was given in the context of Delhi Rent Control Act which is not applicable as only the land was let out.
11. It has been urged that Ld Civil Judge failed to follow settled principal of law that once a tenant is always a tenant unless and until he claims adverse possession against the owner / landlord openly and by doing some overt act which conveys his intention to be the the owner of the property. Such hostile intention must be continuous and should have been perfected 13 over a period of more than 12 years next preceding the claim. It was stated that Respondents who are the off springs of late Shri Ram Narain admits about passing of a decree of ejectment in suit no 390/1956 against late Shri Ram Narain which could not be executed for the reasons stated above and are estopped from denying his status as that of a tenant till his death, and thereafter succeeding to similar rights till they proclaimed adverse possession . The suit in question which has been filed within 12 years of setting up of such claim is within limitation.
12. Relying upon the provisions of the Transfer of Property Act, it is submitted that if a lessee continues occupying the property once let, even after termination of tenancy, and the lessor assents to his possession by acceptance of rent or otherwise, the lease in his favor stands renewed from year to year or from month to month according to the purpose for which the property is leased as specified under Section 106 of the said Act. It is also submitted even otherwise due to non execution of the decree for technical reasons till 1966 the relationship between the parties did not change. 14 Choudhary Kheman Ram expired in the year 1969 and thereafter the Appellant stepped into the shoes of his father when the suit property dewelled upon him. Admittedly, he served two legal notices dated 6.11.1970 and 9.8.1972 by asserting his ownership in the suit property which fact was never disputed by the respondents as no reply was given to the aforesaid notices. In the absence of any reply it must be presumed that they neither claimed adverse possession nor denied the title of the Appellant, before 28.3.1973 when the suit for declaration claiming ownership by adverse possession was filed. The said suit was dismissed for non-prosecution without even serving a notice upon the Appellant. It is only when the respondents applied for a water connection claiming to be the owner sometimes in 1975 this intention was reflected which was objected to by the appellant. Such intention was reiterated when written statement was filed to a suit for recovery of damages, thereby furnishing a cause of action for the appellant to file a suit for possession based upon title as the respondents were tenant only of land. Thus it became the starting point for limitation to 15 file the suit for possession. Hence the suit filed by the appellant was within limitation as provided for in Article 65 of limitation Act.
13. The appellant has relied upon the following judgments:
(a) AIR 1917 Madras 735
(b) AIR 1927 Calcutta 279
(c) AIR 1925 Allahabad 698
(d) AIR 1954 Allahabad 478
(e) (2004) (3) SCC 376
(f) 1981 (2) RCR 63
(g) 1982 RLR 192
(h) 1959 SCR 799
(i) AIR 1954 SC 337
(j) AIR 1971 SC 2556
(k) AIR 1966 Patna 8
(l) AIR 1971 SC 1312 16
(m) 2002 (1) CCC 182 (Bombay)
(n) 2002 (1) CCC 193 (Delhi)
14. In AIR 1975 Calcutta 173 the concept of holding over after the termination of the lease has been discussed It has been held;
"In the absence of an agreement to the contrary, the tenant's continuance of possession after the termination of the lease, coupled with the landlord's assent, would continue a tenancy by holding over and the lease would be renewed from year to year or from month to month, according to the purpose of the tenancy about the S.106 of the Transfer of Property Act. The landlord's assent again may be expressed or implied and, even when there is no direct evidence, it may be inferred from circumstances. The length of the tenant's possession may have importance when it is pretty long. Slight evidence, circumstantial or otherwise, may be sufficient to tilt the balance in favour of the landlord's assent. Mere absence of dissent would not be enough to constitute assent, but if the assent continues for a sufficiently long period, it may, with the aid of other circumstances, and in the absence of any 17 contrary indication, reasonably give rise to an inference of assent. The cumulative effect would be to give rise to an inference of assent as a presumption of fact which is certainly rebuttal but shall prevail unless rebutted. The length of the period may only reduce the requirement of other circumstances to a minimum, so that when it is sufficiently long, only a slight aid will be necessary from the other circumstances and, to that extent, it may facilitate the drawing of the presumption."
15. In AIR 1954 SC 1254 tests to claim adverse possession have been laid down in the following words;
" that the person claiming adverse possession will also have to point out as to since when, i.e at what point of time he started claiming possession adverse to the real owner and further will have to satisfy that even though the possession was such it cautioned the real and true owner of the property to take steps, he remained in possession uninterruptedly, peacefully without any obstruction from the true owner of the property. Therefore a concise statement of material facts constituting plea of adverse possession is necessary. A bare statement without there being any material 18 particulars pleaded in the written statement if allowed to be proved will lead the plaintiff's into confusion and taken him by surprise at the trial."
16. Relying upon AIR 1996 Patna 8 it is submitted that in the present case, nothing was pleaded on behalf of the Respondent to point out even a single overt act where from it could be ascertained as to when their possession became hostile and adverse prior to the filing of the suit for declaration in 1973. It is submitted that in the absence of such pleadings, mere possession would not confer title by way of adverse possession. It is stated that in view of that the Trial Court committed an error of judgment in holding that the respondents were in adverse possession for a period of more than 12 years next preceding the filing of the suit for the recovery of possession and consequently the judgment and decree passed by the Court below deserves to be set aside.
17.On the other hand, the Respondents have justified the Judgment of the court below by making oral as well as written submission and submitted 19 that the limitation, in a case like the present one is governed by Article 66 and 67 of the Limitation Act. Reliance has also been place on Section 27 of the Act. They also claimed that even the findings of the civil Judge on issues No.2 and 4 needs reversal. It is submitted that on 5.12.1967 Shri Ram Narayan expired leaving behind the respondents as legal heirs. After his death the respondents are in continuous possession of the suit property, but the ejectment decree was still not executed and the time of 12 years for filing execution was allowed to expire. On 29.5.1969 when the decree-holder also expired leaving behind the Appellant as his sole heir served upon the respondents notices dated 6.12.1970 and 9.8.1972 describing the first respondent as unauthorized occupant and a trespasser. It is submitted that once late Choudhary Kheman Ram lost his title to the property by not executing the decree of 1957 within limitation, he ceased to be the owner of the property by virtue of Section 27 of the Limitation Act and consequently the appellant also had no right in the property. 20
18.The Respondents have cited following Judgments:
(a) AIR 1983 Delhi Page 114 (para 8 and 10)
(b) AIR 1978 SC PAGE 941 (para 5)
(c) 1993 Civil Court Cases at page no 634 (para 7)
(d) 1995 (2) Civil Court Cases page 640 (para 2 and 4)
(e) 1997 (1) Civil Court Cases page 330 (para 13 and 15)
(f) AIR 1970 SC Page 1019 (para 10)
(g) 2006 (3) Civil Court Cases at pate 479 (para 11)
(h) 2002 (3) Civil Court Cases at page 191 (para 8)
(i) 1997 (1) Civil Court Cases at page 330 (para 15)
(j) 1995 (2) Civil Court Cases at page 640 (para 4)
(k) AIR 1990 P & H page 50
(l) 2001 (1) SCC 717
19. In AIR 1978 SC 941 it has been held:-
"The effect of S. 28 of the Limitation Act was that right to the property was extinguished resulting in conferment of a title by adverse possession on the persons in possession of the concerned properties. It is well known that the effect of S. 28 of the Limitation Act is not only to bar the remedy but also extinguish the right."
20. It is submitted that after the expiry of period of limitation to execute the decree passed in the previous suit and after the death of late Shri Ram 21 Narayan, the respondents became trespassers in the suit property as has been held in the Judgment delivered by Delhi High Court reported in AIR 1983 Delhi 114. It is submitted that the suit for declaration was filed only by the first Respondent but not by others. Yet in the plaint it is nowhere stated as to how cause of action became available against Respondents 2 to 4 . The Appellant having not filed the suit for possession against respondent Nos.2 to 4 within a period of 12 years after acquiring ownership is not entitled to file the same even on the basis of title. Thus the findings returned by the trial Court in respect of issues No.2 and 4 cannot be sustained and needs to be reversed.
21. I have given my thoughtful consideration to the rival submissions made by the parties oral as well as by way of written submissions, I have also gone through the Judgments cited at the bar.
22. It would be relevant to take note of the events and admitted facts which emerges from the record and the synopsis filed by the parties during the course of proceedings before this court as well as in lower court 22 revealing chequered history of litigation . The same are as under:-
1943 Ch. Kheman Ram, father of the plaintiff let out a plot measuring 120 sq. yds to Shri Ram Narain, father of defendants no. 1 to 3 and husband of defendant no. 4 on a monthly rent of R. 6/6/ January, 1956 The dispute regarding rate of rent had arisen between Ch. Kheman Ram and the tenant Shri Ram Narain because he demanded arrears of rent @ Rs.13/3/ instead of Rs. 6/6/. 19.6.1956 Ch. Kheman Ram filed suit for recovery of rent and damages against the tenant Shri Ram Narain, registered as suit No. 390/56 26.3.1957 Shri Sudershan Aggarwal, the then Sub Judge, Delhi passed an order for recovery of arrears of rent and damages on the condition that the rent and damages would be paid in monthly installment and in the event of default the decree of ejectment and recovery of arrears of rent would become executable.
29.3.1958 The decree holder Ch. Kheman Ram filed execution and notice of the said execution petition was issued to the judgment debtor.
10/01/59 The execution petition was consigned to record as unsatisfied.
27.11.1959 The decree holder Ch. Kheman Ram filed second execution petition which was registered as execution case No.. 211/59. In the execution petition it was specifically mentioned that the plot is not covered by the definition of "BUILDING' and as such it is not necessary to obtain permission from the Competent Authority (Slum).
2319.1.60 The judgment debtor filed objection challenging the maintainability of execution petition without obtaining permission from the Competent Authority (Slum) 04/11/61 Shri K.L. Wasen, Sub Judge, Delhi framed the following two issues: "i) Whether the application is not competent in view of the previous directions of the court that the decree holder should bring permission of that Slum Authorities for execution. If so, what is the effect of that orders?
ii) Relief."
01/12/62 Shri K.D. Mohan, Sub Judge, Delhi decided the above said issues against the judgment debtor with the following conclusion: "I, therefore, hold that there is no previous order directing the decree holder to obtain permission from the Slum Authorities and as such I decide this issue against the judgment debtor. The case should come up for further proceedings on 15.12.1962.
January, 1963 The judgment debtor filed appeal against the order dated 01.12.1962 in the court of Senior Sub Judge, Delhi which was entrusted to the court of Addl. Sr. Sub Judge, Delhi and was registered as MCA No. 5/63 24 1963 During the pendency of the execution petition, father of appellant filed a suit bearing no.
2323/1963 for mesne profits and a decree was passed against Sh. Ram Narain (As stated in the notices dt. 6.11.70 and 9.8.72 of Mr. V.K. Kapila Advocate. The intimation about the filing of the suit has also been mentioned by Justice S. Duggal in the order disposing of RCA No. 73/85 to which there is no rebuttal by the respondents). 23.12.1965 Shri K.S. Sidhu, the then Addl. Sr. Sub Judge, Delhi dismissed the appeal of judgment debtor and affirmed the order dated 01.12.1962 of the Executive Court.
The judgment debtor filed execution second appeal No. 71D of 1963 against the judgment dated 23.2.1963 of Shri K.S. Sindhu, Addl. Sr. Sub Judge, Delhi in the Circuit Bench of the Punjab High Court at Delhi 26.5.1966 The E.S.A. No. 71D of 1963 was dismissed as withdrawn.
26.12.1966 The execution file was consigned to the record room due to nonexecution of the decree due to technical objections of non inclusion of direction to demolish super structure in the order, the decree became in executable and thus Sh. Ram Narain became a tenant at sufferance (Admitted by the respondent in his plaint of the suit filed in 1973).
05/12/67 Shri Ram Narain judgment debtor expired at Delhi leaving the respondents as his legal heirs and representatives.
06/11/70 The appellant served a notice and demanded mesne profits @ Rs.14.50 per month and also the vacant possession of the tenanted plot.
2509/08/72 A similar notice was served upon respondent no.
1. However, both the notices remained unreplied. 20.3.73 As a counter measure despite not even being in possession, respondent no. 1 filed a suit bearing no. 151 of 1973 for being declared as owner on the ground of adverse possession. Without service of summon upon the appellant the respondent no. 1 withdrew the said suit on the ground that he did not have the knowledge of the address of the defendant (appellant) as he was unable to serve the appellant in the suit. In that suit it was alleged that the decree for possession of the premises in dispute could not be executed within the statutory period of 12 years because of technical objection as there was no direction for the demolition / removal of the construction raised on the plot in dispute.
09/06/75 The respondent claimed ownership when they applied for water connection and the appellant for the first time came to know of the said claim of ownership. Objections were filed by the appellant.
10/03/81 In this case defense was taken by respondent no 1 who acting as attorney of the wife of deceased tenant that they became owner by adverse possession.
2627.11.81 That defendant's son in opposition to plaintiff's objections filed his affidavit dated 9.6.75 before the concerned authority of Municipal Corporation; wherein he clearly asserted his ownership. Along with affidavit the copies of notices dt. 6.11.70 and 9.8.72 were also filed. Therefore, the plaintiff's objections were rejected and water meter was installed in the premises in dispute." At this stage, intention for holding the possession of the plot adverse to the appellant was reiterated.
28.5.1982 The appellant filed present suit for possession and mesne profits after the disclosure of claim made by respondent no. 1 and other legal heirs of late Sh. Ram Narain regarding adverse possession.
10/08/84 Sh. J.M. Malik, the then Ld. Civil Judge, Delhi dismissed the suit of the appellant only by deciding issue no. 5 by holding that the suit was not maintainable as the decree dt. 26.3.57 had not been executed.
06/09/84 Being aggrieved of dismissal of his suit, the appellant preferred an appeal bearing RCA NO.52/84.
20.3.87 Hon'ble Justice Santosh Duggal, (the then ADJ) allowed the appeal of the appellant and held that the suit was maintainable against the legal representatives of the deceased tenant. She remanded the case to the Ld. Trial Court directing it to give findings on issues no. 2, 3, 4, 6 & 7 also.
2702/01/05 The suit filed by the appellant was finally dismissed on the ground of limitation which is the impugned order in this appeal. On 28.10.2005 the present appeal was filed.
23. Perusal of the aforesaid events goes to show that there is no dispute between the parties on the following facts, i.e.:
i). That the first Respondent is the son of late Shri Ram Narayan who was inducted as tenant in the suit property by late Choudhary Kheman Ram the owner / landlord of the land in question later inherited by the Appellant.
ii).A decree of ejectment was passed against Shri Ram Narayan in 1957 but the same was not executed for the reasons as stated above. The execution was adjourned sine die in Dec 1966;
iii).Late Shri Ram Narayan continued opposing executon of the eviction order in his life but never questioned the relationship. He continued to occupy the suit property despite the ejectment order obviously due to the pendency of the execution application . After his death his legal heirs stepped in to his shoes on account of the right of inheritance and kept on enjoying the possession with the consent of the appellant. There possession was Juridical.
iv).After the decree of ejectment was passed in 1957, a suit was filed by the Appellant against the wife of late Shri Ram Narayan which was decreed in his favor in 1963. No appeal was filed against the said suit. The suit was filed for recovery of measne profit during the pendency of execution application.28
v).No claim of adverse possession was raised by the respondent before the filing of the suit for declaration filed in 1973, nor any other overt act was done by them to deny the title of the Appellant.
vi).The appellant filed the suit for possession in 1982, i.e within 12 years of the claim of adverse possession set up by the respondents.
24. The questions to be determined by this court in this appeal are:
(i) What was the status of deceased Ram Narain after the order of eviction passed in 1957 till his death;
(ii) Weather the respondents acquired the possession of the suit property as trespassers and if so since when;
(iii) When did they raise the plea of adverse possession for the first time;
(iv) If the appellant inherited the suit property & if so, since when the limitation started running against him for filing the suit in question.
25. While deciding a plea of adverse possession and more so by a person who was (admittedly) once inducted into the premises as a tenant, i.e., permissible possession, the principle is that there is a presumption that the existing state of affairs continues. I should not be understood as saying that there can never be adverse possession at the instance of one, who was once upon a time a tenant against the owner but it will be a very uphill task 29 and would require a clear proof. The rationale for this legal principle is that an owner is entitled to presume that the relationship continues. Otherwise, the owner may be thinking that it is in possession of a tenant while the period for prescription might be running. Moreover applicability of many social welfare laws which gives protection to tenants cannot be ignored while raising these presumptions and interpreting the general law of limitation and ownership. It is well known that there are many laws to protect the tenant. Many suits filed for possession are objected to as barred under such laws.
26. In the present case too, the bar of Slum Area (Clearance & Improvement) Act (which is applicable only to a tenant and not to a ranked trespasser) was raised. This continued till at least 1966. Thus at least till that date, the permissive nature of the possession was acknowledged. The execution which was filed in 1959 was adjourned sine die. In other words, in some ways, technically it is still pending. It was the notice dated 6.11.70 which first alleged trespass. It was perhaps in response to this notice that a 30 suit was filed on 20.3.1973 claiming ownership but this was withdrawn in the same year. The withdrawal in the facts of this case can also be presumed / inferred to operate as giving up of the claim of the hostile possession. The suit subject matter of appeal filed in 1982 was well within 12 years from 6.11.1970. Whatever might have been said in the said notice, the appropriate question is as to when the respondents/defendant (tenant or his heirs) first said: "We are no longer in possession as tenant. We do not want protection as tenant. We are in possession as owners and you are free to file a title suit for possession against us if you so wish." No such intention was manifest till 1973. On the contrary the events display a desire to use the protection of law available to tenants to remain in possession. Even otherwise, examining all these provisions, the conclusion is irresistible that for a property which was once tenanted, unless restoration is shown to the landlord (under Section 108-G of the Transfer of Property Act which is the statutory duty of the tenant) for a tenant to assert adverse possession and title is not to be readily accepted in absence of clear proof. 31
27. In appreciating the plea, the court has also to look into the entire conspectus of laws including landlord-tenant laws.
28. It would also be relevant to quote certain observation from the case of T Anjappa and ors vs Somalingappa and another reported as (2006) 7 SCC 570 where the concept of the adverse possession has been discussed and it has been held :
"The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly denies the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right but denies them. The principle of law is firmly established that a person who basis his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged act of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is 32 commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property".
29. In another judgment titled as Konda Lakshmana Bapuji vs Government of Andhra Pracesh reported as 2002 AIR (SC) 1012:2002 (3) SCC 258 it was held :
"The question of a person perfecting title by adverse possessions is a mixed question of law and fact. The principle of law in regard to adverse possession is firmly established. It is well settled proposition that mere possessions of the land, however, long it may be, would not ripe into possessory title unless the possessor has 'animus possidendi" to hold that land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would in an appropriate case, be sufficient indication of the animus 33 possidendi to hold adverse to title of the true owner. But such an assertion of title must be clear and unequivocal thought it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as animus possidendi must be shown to exist. Where, however, at the commencement of the possession there is no animus possidendi, the period for the purpose of reckoning adverse possession will commence from the date when both the actual possession and assertion of title by the possessor are shown to exist".
30. The aforesaid judgments lays down that plea of adverse possession must be firmly established by a person claiming title on the basis of the adverse possession. He must show by clear and unequivocal evidence that his possession was hostile to the real owner, for a period of more then 12 years since before such claim is set up.
34
31. The judgment of the Supreme Court in Ajit Chopra V. Sadhu Ram and others AIR 2000 SC 212 seems to be direct in point. In the aforesaid case tenant denied relationship of landlord and tenant before the Rent Controller against the original owner. In appeal he was held to be a tenant and an eviction order was passed against him. A revision petition filed by him in the High Court was also dismissed and he was given three months time to vacate. In the mean while the suit property was sold to one Mr. R.C.Chopra who filed a suit for possession. He was not a party to the original eviction petition. The tenant set up the bar of limitation. However rejecting the plea of the tenant it was held ;
In the result, the judgment and decree which was passed in a previous suit under the Rent Control Act by which it was held that respondent was tenant and that he was required to vacate the premises on or before 19.12.1958, would not bar a fresh suit for recovery of possession from a tenant. Reason being that the tenant has not 35 acquired title over the property by adverse possession. It is true that the appellant could have executed the decree passed in the said suit.
He had not executed the same on the alleged grounds that there was a fresh agreement of tenancy.
Whatever may be position, after lapse of three years it was not open to the appellant to file an application for executing the said decree under the Limitation Act, 1908, still there is, no bar under the Rent Act or under the Code of Civil Procedure for filing a suit for recovery of possession from the tenant, who had failed to deliver the possession on the basis of a decree passed against him, unless the defendant-tenant establishes that he has become owner of the suit property by adverse possession, the suit filed by the owner on the basis of his title cannot be dismissed despite the fact that application for the execution of the decree passed under the Rent Act was barred after lapse of three years.
The title of the plaintiff over the suit property was not extinguished (i) by 36 the act of the parties including claim of adverse possession (ii) by the decree of the court or (iii) by not executing the decree which was passed in a previous suit. If there is any agreement between the parties after passing of the decree, permitting the tenant to continue in the premises, he may either be a tenant, lisencee or a trespasser.
Presuming that no fresh tenancy was created or license was granted then also respondent has failed to acquire title by adverse possession on the date of the suit ie 5.8.70, because as per the decree he was entitled to occupy the premises . By lapse of time,plaintiff has lost right to execute the previous decree as it became time barred but has not lost the title.
Unless the title is extinguished, second suit by the owner if filed within period of limitation is not barred".
32. From the aforesaid it is clear that a tenant even after termination of his lease would remain a tenant till such time he 37 hand over the possession of the property to landlord or set up adverse possession openly to the knowledge of the landlord which must be perfected at least for a period of 12 years before the suit for possession is filed.
33. In the present case father of first respondent was inducted as tenant. Even though eviction order was passed against him, same could not be executed for the reason as stated above; status of the tenant does not change and consequently relationship between parties continued. As such his legal heirs cannot plead adverse possession without taking such plea openly to the knowledge of the landlord/owner which should have been perfected for the period more then 12 years, prior to such hostile declaration.
34. It would also be of relevance to take note of another judgment cited on behalf of the appellant as reported in case of 38 titled as Patel Naranbhai Marghabhai and ors. reported as JT 1992 (4) SC 381. , wherein, it has been held:-
"The further contention that the appellant's perfected their title by adverse possession lacks force. There is no evidence as to when the appellants asserted adverse title to the property to the knowledge of the respondent and that they acquiesced to it. There is no period of limitation prescribed under the Act for execution. The contention placing reliance on a full bench judgment of Gujrat High Court in Ramanbha Trikamlal vs Vaghri Vaghabhai Oghabhai and another that for possession, the execution shall be filed within 12 years and the respondent filed their application after 22 years, no relief for possession could be granted the execution after 22 years is barred by limitation. We find no force in the contention".
35. In the aforesaid judgment Hon'ble Supreme Court also dealt with Section 27 of the Limitation Act in relation to a suit for recovery of possession filed by owner on the basis of title made. In para 9 of the aforesaid judgment it was held: 39
More over the words in section 27 that at the determination of the period hereby limited to any person for instituting a suit for possession would imply that the limitation has begun to run against a person for instituting a suit under section 9 of the CPC had expired. The Legislature advisedly did not prescribe any period of limitation for recovery of the possession under the Act which is a beneficial legislation. Section 51 A expressly bars the jurisdiction of the Civil Court. It would follow that where a person could not or need not have filed suit for possession, there is no question of any determination of the period of limitation to his instituting a proceedings or a suit for possession. Consequently no question of the applicability of section 27 would arise. Thereby the legislature manifested, by necessary implication, that the period of limitation is not applicable to an application for recovery of possession under the Act. The application for possession is not barred by limitation. More over a suit for possession by owner of any property will not be barred if the possession of the defendant is not adverse to him. So hostile title to the knowledge of the plaintiff must be asserted and proved. The contention therefore that the appellants perfected title by adverse possession is devoid of substance."40
This judgment also supports the case of the appellant.
36.Ld counsel for the respondent also relied upon the two judgments (i) 2006 (2) Civil Court Cases 353 (SC) (ii) 1995 (2) Civil Court Cases 662 (SC) to reiterate his submissions that after the death of Ram Narain, who became a tenant by holding over after the passing of the eviction order before his death, the respondents who continued in possession of the suit property became tresspassers after he expired. Thus the suit field by the appellant after 12 years of the death of Ram Narain was barred by limitation in view of Article 66 and 67 of the Limitation Act.
37. In the judgment titled as Prabhakaran and ors. Vs. M. Azhagiripillai reported in 2006 (2) CCC 353 SC it is 41 held:
"after expiry of limitation for redemption of a mortgage, the mortgager cannot file a suit for possession even on the basis of title in view of Section 27 of the Limitation Act.
38. There cannot be any dispute about the aforesaid preposition of law but this Judgment is not applicable to the facts of this case.
39. In the case of R.V Bhupal Persad vs State of Andhra Pradesh and others (Supra) relied upon by the respondents, Hon'ble Supreme Court dealt with the status of a person who was inducted as a tenant, and continued in possession of the property even after the termination of lease with or without the consent of the landlord. It was held that "possession of such person may not be lawful but would be juridical possession. Such person also cannot be ousted from the suit premises except in accordance with 42 law. It would be relevant to take note of para 7 and 8 of the judgment which reads as under:
"Section 105 of the Transfer of Property Act (for short the TP Act) defines 'lease' of immovable property as a transfer of a right to enjoy such property made for certain time, express or implied or in perpetuity, in consideration of a price paid or promised or of money a share of crops service or anything of value to be rendered periodically or on specified occasion to the transfer by the transferee, who accept the transfer on such terms' therefore the lessor of immovable property by contract in writing or otherwise can transfer his property to the lessee perpetuity in consideration of a price paid or promised or of money etc and the lessee accept the transfer on such terms. Under section 111 of the T P Act a lease of immovable property determines inter alia by efflux of the time limited. Section 116 envisages the effect of holding over and provides that' if a lessee or under lessee of property remains in possession there of after the determination of the lease granted to the lessee and the lessor or his legal representatives accepts rent from the lessee or otherwise assents of his continuing in 43 possession the lease is in absence of an agreement to the contrary is renewed from year to year or from month to month, according to the purpose for which the property is leased as specified in section
106. Section 106 of the TP Act deals with the duration of the certain cases in the absence of written contract or local usage."
"Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the terms or expiry of the lease by efflux of time, the tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn) at page 633, the position of tenancy at sufferance has been stated thus; a tenant at sufferance is merely a fiction to avoid continuance in possession operating as a tresspass, it has been described as the least and lowest which subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the 44 person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of the tenant holding over thus; The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. A distinction should be drawn in between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position then a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will, with the assent of the landlord. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to 45 be tenant is also protected by law. Although he may not have a right to continue in possession after the termination of tenancy, his possession is juridical.
40. In the present case the status of the deceased tenant at the time of his death was that of a tenant by holding over as the late father of the appellant allowed him to remain in possession of the property after execution was adjourned sine die and could not be executed. His possession was not that of a trespasser. It was permissive possession. The respondents being the family members of the deceased tenant were permitted to use the property as they inherited the status of the deceased tenant. Till such time they claimed adverse possession of the property, their possession remained permissive or at the most that of a tenant by holding over. The moment a adverse title was set up by them, 46 the appellant became compelled to file a suit for possession within 12 years since than to save the property. Thus the Judgment also does not come to the rescue of the respondents.
41. It may be observed here that after the termination of the lease of a tenant, his possession becomes permissive. It could be as a tenant by holding over which can also be converted in a monthly tenancy if the landlord accept rent by virtue of section 116 of the Transfer of property Act or in the alternative, it could be merely permissive. In such a case there is no limitation prescribed under the Limitation Act to evict such a person unless and until the owner wants to do so. However, when such a person who was inducted lawfully and remains in possession of the property as a permissive user, sets up an adverse title then Article 65 47 comes in and the limitation starts running.
42 In view of that the submissions of Ld counsel for the respondent can not be appreciated for two reasons i.e., firstly the aforesaid judgment only distinguishes the case of rank trespasser and the one who remains in possession of the property by holding over or is tenant at sufferance. In the first case, the occupant can be thrown out by using reasonable force, in the second case, he can not be evicted except in accordance with law. Secondly this judgment also makes a distinction between a tenant by holding over and a tenant at sufferance. In the present case the status of the first respondent after the death of his father became only that of a tenant by holding over with the assent of the landlord as no objection was taken by father of the appellant or by the appellant till such time the respondents claimed adverse 48 possession. Before that their possession was permissive and therefore the moment they set up an adverse title the appellant limitation began to run for the appellant to evict them on the basis of his title as prescribed under Article 65 of the Limitation Act.
47. In view of the aforesaid, it is held :
i) That on account of non execution of the ejectment order passed in 1957 which was in executable as there was no provision in the decree to remove the super structure, the status of Ram Narain in his life time remained as that of tenant by holding over.
ii) The respondents who are legal representative of the deceased tenant inherited similar rights as vested in the deceased tenant till such time they set up the claim of ownership by way of adverse possession
iii) The claim of adverse possession was set up by respondent for the first time in 1973 by filing a suit for 49 declaration to have become owner by adverse possession and thereafter when they also filed an application for supply of water connection which was within 12 years of the filing of the suit for possession.
iv) The appellant acquired ownership of the suit property from his father and has been held to be landlord/owner of the property and therefore was entitled to file the suit in question on the basis of the title; and as such the suit filed by him was within limitation in accordance with Article 65 of the Limitation Act.
48. Consequently, the finding of Ld Trial court in respect of issue no 3 is set aside. The appeal is allowed and a decree of possession of the suit property is passed in favour of the appellant against the respondent qua the property 10/62/16 Municipal No. 4/18, being part of Khasra No. 109 and 110, situated at 50 Katra Kheman Ram, Bagh Kare Khan, Andha Mugal, Delhi shown red in the site plan attached with the plaint. Respondent shall be at liberty to remove the super structure within one month of the passing of the decree and in the alternative appellant shall be entitled to take possession of the land as well as building constructed there upon. The appeal is disposed of accordingly with no order as to cost. Decree sheet be drawn accordingly. Copy of the order be sent to the Ld Trial Court along with trial court record. Appeal file be consigned to record room.
05.10.2007 (M. C. GARG) ADDITIONAL DISTRICT JUDGE DELHI