Delhi High Court
Jagmohan Lal And Ors. vs Harkishan Lal on 9 March, 1994
Equivalent citations: 1994IAD(DELHI)1136, 1994(29)DRJ123
Author: D.P. Wadhwa
Bench: D.P. Wadhwa, D.K. Jain
JUDGMENT D.P. Wadhwa, J.
(1) This appeal is by the defendants. It is against the judgment and decree dated 20 January 1986 whereby the suit of the plaintiff-respondent for possession of property bearing No. E-l/3. Lajpat Nagar, New Delhi, and mesne profits/damages amounting to Rs. 1,800.00 was decreed with costs.
(2) The plaintiff filed the suit on 16 August 1982 in the court of the District Judge. Delhi. He alleged he was owner of two properties hearing No. E-1/3 and E-1/4. Lajpat Nagar. New Delhi, which, he said, he purchased from the Union of India. Perpetual lease deed of the land (Ext.PW 1/l) and conveyance deed of the superstructure (Ext.PW 1/2) were executed on 24 June 1977 and registered before the Sub Registrar, New Delhi. On behalf of the Union of India both these documents were executed by the Managing Officer (Department of Rehabilitation. Settlement Wing), New Delhi, in favor of the plaintiff. Plaintiff said that his uncle Mela Ram (father's brother) had no place to reside and he. therefore, granted him license to occupy one of the properties, bearing No. E-1/3, Lajpat Nagar, New Delhi (for short "the suit property') at a monthly license fee of Rs.30.00 which later on was increased to Rs. 50.00 per month as the plaintiff said he built some extra structure in the suit property. With the plaint the plaintiff filed the plan of the suit property. The plaintiff then said that Mela Ram died and he asked the defendants, being the legal heirs of Mela Rani. to vacate the suit property. Instead, these defendants filed a revision petition under section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short "the Act"), against the order dated 4 June 1977 whereby the lease deed and conveyance deed were executed in favor of the plaintiff. This revision petition was dismissed on 23 September 1980 by the Chief Settlement Commissioner (Ext. PW2/1). A further petition under section 33 of the same Act was as filed before the Central Government, hut the same was also dismissed on 31 January 1981 (Exl.PW2/2). The defendants thereafter filed a civil writ petition in Delhi High Court (CWP No. 646/81) against the orders of the rehabilitation authorities, hut the same was also dismissed by a Bench of this Court on 28 September 1981 (Ext.PW2/3). Plaintiff said that all these proceedings clearly established his ownership in both the properties, i.e., E-1/3 and E-1/4, Lajpat Nagar, New Delhi. He also said that the orders of the rehabilitation authorities and the judgment of this Court operated as res judicata and the defendants could not challenge the title of the plaintiff to these properties. Since the defendants failed to vacate and also did not pay damages/manse profits at the rate of Rs. 50.00 per month, the plaintiff filed the suit. He claimed damages for past three years. He fixed the market value of the suit property at Rs. 25,000.00 and thus valued the suit for purposes of jurisdiction at Rs.26,800.00 and paid the requisite court fee thereon. According to the plaintiff, cause of action arose on 27 February 1980 when vacant possession of the suit property was demanded from the defendants and they refused to surrender possession of the same. Cause of action as regards claim for mesne profits accrued on 31 August 1979 and again as and when these fell due.
(3) The defendants contested the suit. They raised a preliminary objection that the court of District Judge had no pecuniary jurisdiction inasmuch as the market value of the property was about Rs. 3 lakhs and had been wrongly stated by the plaintiff to be Rs.25.000.00 . Then they said they had been allotted the suit property by the authorities of the Rehabilitation Department. Government of India, and they had been in possession of the same for the last 32 years or so. They said the suit property formed part of the compensation pool under the Act and since the parties in the suit were to he paid compensation for their verified claims under the aforesaid Act and the Rules framed there under the plaintiff was not entitled to allotment of both the properties. They said that because the plaintiff was the karta of the Joint Hindu Family of the family of Mela Ram and his own family which consisted of about 15 members the allotment of two units was made in his name on the basis of numerical strength of the family members. The defendants also said that the suit was barred by limitation since they had been in possession for the last 32 years or so. The defendants said that they had also contributed and paid the price of the suit property to the plaintiff for him to make payment to the Government of India to acquire the membership on a specific understanding arrived at by way of an oral agreement that defendants should be the owner of the suit property and the plaintiff would convey the same to them, as and when the defendants would ask him to do so. Claim of the defendants was, therefore, that this suit property was purchased benami by the plaintiff for and on their behalf and for their benefit for the price paid by them. This arrangement, the defendants also said, was by way of a family settlement. The defendants then gave a brief history as to how the family of Mela Ram and the family of Tara Chand (father of the plaintiff) came from West Pakistan and filed their joint claims under the Displaced Persons (Claims) Act, 1950. in respect of their properties left in Pakistan. The defendants said that regarding compensation to he claimed by them an application form bearing C.A.F. NO.ND/ 1986/IV/NTA was submitted. It is then stated that on 22 April 1950 the Ministry of Rehabilitation allotted these two tenements E-1/3 and E-1/4. Lajpat Nagar, New Delhi, measuring 100 sq. yds. each to Mela Ram and the family of late Tara Chand on the basis of strength of their family members which again, it was asserted, was 15. The defendants said that the names of members of the Joint Hindu Family were duly mentioned in the aforesaid compensation application form. The defendants claimed that there was mutual partition among the members of the family whereby the suit property remained permanently occupied by the legal heirs of Mela Ram. Defendants denied that they were licensees, or the rate of license fee was as contended by the plaintiff. It was also mentioned that even otherwise the defendants had become owners by adverse possession as they had been in occupation of the suit property from the year 1950 without any hinderance or objection by the plaintiff at any time. It was stated that the plaintiff never raised any issue till October 1980 when he filed a suit for permanent injunction against them restraining them from effecting any structural additions/alterations in the suit property. Defendants said that the additional structure in the suit property had been raised by them at their own cost, and they had been paying house-tax of the suit property as well. They denied that the orders of the rehabilitation authorities under the Act operated as res judicata.
(4) The plaintiff filed his replication to the written statement of the defendants and denied the claim of the defendants, and reaffirmed what he had said in the plaint. On the basis of the pleadings and the documents, the trial court framed the following issues :- 1. Whether the suit is properly valued for the purpose of court fee and jurisdiction ? 2. Whether the defendants are in possession as licensees as alleged ? 3. Whether the suit is within time" 4. Whether any notice as objected was necessary to be served before tiling of the suit ? If so, what is effect of non-service thereof? 5. Whether the plaintiffs are entitled to the possession as claimed? 6. To what damages, if any, are the plaintiff entitled ? 7. Relief.
(5) Plaintiff, in support of his case, examined himself and and also a witness Mr. S.K. Burman (Public Witness -1 ), a clerk from the Land & Development Office. New Delhi. He produced the orders of the rehabilitation authorities. Documentary evidence which the plaintiff brought on record have been mentioned above. The defendants examined eight witnesses. Out of these two defendants, namely, Jagmohan Lal (DW-1) and Mohinder Kaur (DW-2). widow of Mela Ram,appeared as witnesses. Other witnesses were Chaman Lal Suri (DW-3) son of Bua (father's sister of the plaintiff): Chaman Lal (DW-4), his grandmother and the grand-mother of the plaintiff being the real sisters: Gurmukh Singh Sachdeva (DW-5), an architect who valued the suit property and submitted his valuation report (Ext.DW5/2) and site plan (Ext.DW5/l): Om Prakash (DW-6), a common relative of the parties; Ram Singh, Dealing Clerk from the Land & Development Office; and S.B. Lal. Dealing Clerk from the Office of the Rehabilitation Department. Defendants also brought on record notice dated 27 October 1980 (Ext. Dw 1/PA) given by the plaintiff to them through his advocate revoking the license of the defendants and requiring them to pay arrears of license fee at the rate of Rs.50.00 per month. The defendants also got proved two applications submitted by Mohinder Kaur, widow of Mela Ram, to the Office of the Regional Settlement Commissioner, both exhibited as DW8/1 hut dated 23 April 1970 and 23 April 1973. Both these applications are verbatim the same. Defendant Mohinder Kaur in this application said that both the tenements in question were allotted to Shri Harkishan Lal, the plaintiff, and that in the allotment order the name of her husband Mela Ram existed and on the strength of family members two quarters were allotted to Harkishan Lal. She said from the very beginning suit property was in her possession and occupation. She said that Mela Ram had since died on 8 July 1967 and after his death relations became strained and she, therefore, requested that her right might not be ignored and suit property be confirmed in her name. She said otherwise she would suffer great loss. She also prayed that lease and conveyance deeds might not be issued to Harkishan Lal exclusively. Oral evidence produced by the defendants is all to the effect that Tara Chand (father of the plaintiff who died in 1949 after migration) and Mela Ram were having joint Hindu Family in Pakistan with Tara Chand as the Karta and after partition of the country they were again having Joint Hindu Family and had filed joint claims for the properties left in Pakistan.
(6) That is all the evidence in the case.
(7) The learned Additional District Judge who heard the matter, on issue No. 1, returned the finding that the market value of the suit property was Rs.95,000.00 and by adding to this the amount of mesne profits amounting to Rs.l,800.00 as claimed by the plaintiff, he fixed the value for purposes of jurisdiction and court fee at Rs.90,800.00 . He required the plaintiff to make up the deficiency in court fee within a certain period. Issues No. 2 and 5 were discussed together. These issues and issues No. 4 and 6 were decided against the defendants. He. therefore, decreed the suit of the plaintiff.
(8) Grounds of appeal are a bit confusing mass. Same grounds have been repeated over and again in different paras. The grounds of attack are in the alternative and at times we find they are contradictory to or even destructive of each other. These may, however, be briefly stated: 1.No issue was framed on the question of ownership of the suit property by the plaintiff and no evidence, therefore, could have been led. 2. Defendants were not licensees, but co-owners and co-sharers in respect of both the tenements: that there was an oral partition or family settlement whereunder defendants became owner of the suit property, while the plaintiff became owner of the other tenement. 3. Assuming that Mela Ram was a licensee. the license was personal to him and after his death in 1967 the defendants' possession became unauthorised and the suit having been tiled in 1982 it was barred by limitation. As per allegations, Article 64 of the Limitation Act was applicable and not Article 65. 4. Again in the alternative, 'the plea was that the defendants by themselves and through their predecessor Mela Rani had been in continuous uninterrupted and peaceful possession of the suit property for the last over 32 years claiming ownership right in the same and they, therefore. became owner by adverse possession. 5. Yet again in the alternative, the plea was that families of Tara Chand (father of the plaintiff) and Mela Ram were joint in West Pakistan and on migration to India they filed joint claims and remained as a Joint Hindu Family. There is a presumption under the law that Hindu Family is joint and a further presumption that the plaintiff, being seniormost member of the family after Mela Ram, was karta of Joint Hindu Family and so allotment of both the tenements in his name was in fact in favor of all the members of the Joint Hindu Family and all were entitled to transfer of the property as owners. 6. Allotment of the two tenements was on the numerical strength of the family members, and since the family members numbered about 15 two tenements were allotted in 1950 and the defendants could not, therefore. be the licensees. 7. The court did not examine the family settlement and its sanctity. There was a partition/family settlement which was acted upon, and that the trial court went wrong in holding that the family settlement/ arrangement did not occur in 1954, and that this fact was not mentioned in the written statement. 8. The court had no pecuniary jurisdiction to try the suit. It had wrongly arrived at the market value of the suit property at less than Rs. 1 lakh when the value was about Rs.3 lakh, and the plaint ought to have been returned. 9. The court did not properly appreciate the oral evidence of the defendants. It was proved that Mela Ram and Tara Chand constituted Joint Family in Pakistan before and after partition of the country and were allotted two units (E-1/3 and E-1/4) and family of the plaintiff and Mela Ram continued to remain in possession of different tenements as per family arrangement. 10. Lastly, no case for award of damages was made out.
(9) We had to hear diverse arguments beyond the pleadings and at times these were against the evidence on record. It was, however, submitted that points which had been raised in appeal during the course of arguments were pure question of law and could be taken into account even though not taken up specifically in the grounds of appeal.
(10) Let us begin with the first issue. The plaintiff did not bring any evidence to prove the market value of the suit property except to make his own statement that its value was Rs.25,000.00 . As we have noted above, the case of the defendants was that the suit property valued more than Rs.3 lakh. In support thereof the defendants have examined three witnesses. Defendant No. 1 Jagmohan Lal said that the market value of the suit property in August 1982 was about Rs.3 lakh. He, however, could not say on what basis he made the statement. Second witness was defendant No.2 Mohinder Kaur who said that the suit property valued over Rs. 1 lakh. She also did not say on what basis she was making this statement. The third witness is the architect (DW-5). He prepared the site plan (Ext.DW5/ 1) of the suit property and also prepared valuation report (Ext. DW5/2). His site plan is not same as site plan (Ext. PW2/4) filed by the plaintiff which was not disputed by the defendants and which even the witness admitted to be correct. While the witness added value of the half of the open courtyard, but in the site plan Ext. PW2/4 open courtyard is not shown to be part of the suit property. The witness had also no idea as to the market value of the suit property inasmuch as he did not see any sale deed or any other transaction regarding sale of any property similarly situated. Again the witness took into account the additions made in the property by the defendants, but it was disputed and the claim of the plaintiff was that additions in the suit property were made by him. The witness said that he did not calculate the cost of construction on the basis of C.P.W.D. schedule of rates, hut on the basis of market rates. Defendants had told the witness that the additions were made in 1966, but the witness did not state as to how he came to know the market rates of that year. As regards his qualifications the witness said he had passed matriculation examination from Punjab University in the year 1964 and thereafter had been doing the work of architect, hut he said he did not obtain any other technical qualification. In these circumstances, the learned trial court did not rely on the valuation arrived at by the witness who valued the suit property at Rs. 1.27.400.00 as existing in the year 1982. On the one hand. the plaintiff valued the suit property at Rs.25,000.00 , and on the other, the defendants saiditwasoverRs.3 lakh. Defendant No.2 in her statement even said that it would be over Rs. 1 lakh and the valuer said it was Rs. 1.27.400.00 . The court, therefore, had not sufficient evidence before it to accept either of the versions of the parties regarding market value. The trial court also took into consideration the fact that the suit property was not vacant and it was a matter of common knowledge that a property which was occupied and which was under dispute fetched less price in the market. Considering all these facts, the court fixed the market value at Rs.95,000.00 . We find no error in this. Mr. Aggarwal said that the trial court deliberately fixed the market value at a figure less than Rs. 1 lakh so as to assume jurisdiction as otherwise the plaint would have to be returned to be filed in a proper forum which at that time was the High Court. On this assumption we asked him as to what prejudice, has been caused to the defendants even if we held that the court had no pecuniary jurisdiction to try this suit. We may refer to sub-section (2) of Section 21 of the Code of Civil Procedure which was inserted by the Amending Act of 1976 w.e.f. 1 February 1977 :- "(2)No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. "
(11) It is correct that objection as to the competence of the court with reference to the pecuniary jurisdiction was taken in the written statement. That is, however, not enough. The defendants have to satisfy us that in spite of their having taken the objection as to the pecuniary jurisdiction of the court at the earliest possible opportunity, there has been a consequent failure of justice. The defendants have, thus, to show as to what prejudice has been caused to them by the impugned judgment delivered by the court not having pecuniary jurisdiction to try the suit. That there had been a consequent failure ofjustice, has not been taken as a ground of attack in the grounds of appeal. We, however, allowed the defendants to raise this plea. It was submitted that after the evidence had been led, an application was filed by the defendants praying that issue regarding jurisdiction and court fee be tried as a preliminary issue. The court allowed this application on I October 1984. The matter was fixed for arguments on three different dates and then the court considered yet another application of the defendants filed under Order 18 Rule l7-A of the Code for recalling of certain official witnesses. However, the defendants limited their prayer in this application to recalling of Mr.S.B.Lal, Dealing Clerk of the Land & Development Office. The court was not inclined to allow the application, but on the statement of the defendants the application was allowed on 26 July 1985 and one more opportunity was granted to the defendants to summon the Dealing Clerk with the records. It was made clear that for whatever reason if the record was not made available the application would be deemed to have been dismissed. "The witness was to be summoned at the responsibility of the defendants. The case was adjourned to 13 September 1985. On this date, the witness was present but it so happened that counsel for the defendants was unwell and the matter was adjourned to 25 October 1985 as per order of 26 July 1985. Again on this date, the witness was present, but again a request was made on behalf of counsel for the defendants that he was unwell. Any further adjournment was opposed by the plaintiff. After considering this earlier order the court closed the evidence of the defendants and listed the case for final arguments to 7 November 1985. On this date, arguments could not be addressed as the counsel for the defendants sought adjournment. The court adjourned the matter but said that would be the last opportunity. It was made clear that if for any reason counsel for the defendants did not recover (it appears he was still unwell), the defendants would engage another counsel. It was also made clear that no further adjournment would be given. On the adjourned date arguments were heard and judgment delivered which is now impugned.
(12) When the court on 25 October 1985 adjourned the matter for final arguments and when these arguments were heard on 8 January 1986, there were two dates in between. The defendants did not object to hearing of the final arguments and did not press that arguments on preliminary issue be heard first. It is not clear to us as to how by hearing the final arguments there has been a consequent failure of justice. No injury is shown to have been resulted on account of the course adopted by the court in hearing the final arguments and not deciding the preliminary issue particularly when all the evidence had been led in the case. It cannot be said that the order of hearing final arguments is in any way detrimental to some right of the defendants. Any party has a right to a fair trial as per procedure prescribed. But then every departure, however small, from the procedure would not mean that any injury has been caused to any party. There is no right or claim of the defendants which can be said to have been infringed. As a matter of fact, we could not appreciate as to why the court directed in the first instance hearing the issue of jurisdiction and court fee after whole of the evidence on ail the issues had been recorded. Under Rule 2 of Order 14 of the Code. the court has normally to pronounce judgment on all the issues notwithstanding that a case could be disposed of on a preliminary issue. However, when the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only it might try that issue first, if that issue relates to the jurisdiction of the court or a bar to the suit created by any law for the time being inforce. This course can be adopted when issues both of law and of fact arise in the same suit, and then if the court decides to adopt the course of hearing the issue of law only, it may, if it thinks fit, postpone the settlement of other issues only after the preliminary issue had been determined and may deal with the suit in accordance with the decision on that issue.
(13) At this stage, we find the situation for the defendants is rather paradoxical. Before the establishment of Delhi High Court in 1967, even a Sub Judge First Class had jurisdiction to try a suit of unlimited value. When the suit was filed the court of the Additional District Judge or the District Judge could try a suit of the value of Rs. I lakh and if the value was more it could be tried by the High Court. But today after the amendment of the Delhi High Court Act effective from 18 December 1992, a court of District Judge or the Additional District Judge has been vested with the jurisdiction to try a suit of the value up to Rs. 5 lakh. Now if we accept the contention of the defendants that there has been a failure of justice, the impugned judgment would have to be set aside and the matter again sent hack to that very court for hearing the matter afresh. We, therefore, hold that issue regarding valuation for purposes of court fee and jurisdiction was rightly decided, and in any case there has not been any failure of justice. Section 21 of the Code would bar any objection thus raised as to the pecuniary jurisdiction of the trial court.
(14) To prove his case on other issues the plaintiff had only to rely on the perpetual lease deed (Ext. PW1/1) and deed of conveyance (Ext. PW1/2) executed in his favor under the provisions of the Act and the Rules framed there under. This the plaintiff did. He also said that he had been asking the defendants to vacate the suit property and also pay him the license fee. He said the defendants had challenged the sale of the suit property to him and when they failed even up to this Court in writ petition, he gave them a notice (Ext. DW1/PA). This notice is dated 27 October 1980 and since the defendants defaulted in complying this notice, the plaintiff filed the suit. As noted above, the defendants denied any demand made by the plaintiff requiring them to vacate or to pay the license fee. and they even denied the receipt of any notice, but these were the defendants themselves who produced the notice sent to them by the plaintiff. On this evidence the plaintiff became entitled to have issues 2, 4 and 5 decided in his favor.
(15) As we have seen above, the defendants, however, raised multiple pleas and some in the alternative. The defendants' evidence is all oral except for two applications (both Ext.DW8/l) filed by defendant No.2 before the Regional Settlement Commissioner under the Act. Defendants 1 and 2 and other witnesses DW-3, DW-.4 and DW-6 all state about the families of Tara Chand and Mela Ram residing together before partition of the country and having a joint business and even a joint mess. After their migration to India, the witnesses stated, that they stayed together at a certain place in Bangali Market, New Delhi, and then they were allotted the two tenements in question 1950 where they had been residing since then. There are some glaring contradictions in the statements of the witnesses which we would comment upon later in the judgment. This evidence also shows that the parties were again joint and they separated in business in 1954 (DW-3) and that families of Mela Ram and plaintiff have been living separately in the two tenements. Only defendants. 1 and 2 stated about the oral partition or family arrangement. It is an admitted case that the allotment of the two tenements in the name of the plaintiff was made in 1950 by way of rehabilitation measure and families of the parties have been residing therein since then, and that allotment under the Act was made in favor of the plaintiff in 1954. We do not think much advantage can be drawn by the defendants on the basis of the oral evidence led in view of the documents on record which we would presently discuss. The case later set up by the defendants that three tenements had been allotted was nowhere pleaded by the defendants and it was only in the evidence that such a plea had been raised. In oral evidence it did come on record that tenement bearing No. E- 1/5 was allotted and that was surrendered, but there is no documentary evidence on record and in the absence of that and in the p73 absence of the pleadings it is difficult to accept such a plea that three tenements had been allotted. Rather it appears to us that this plea was advanced when it became known that a family of 15 members was entitled to 3 tenements and that family of plaintiff was entitled to two tenements on the strength of its members.
(16) After the documents being the perpetual lease deed and conveyance deed were registered in the name of the plaintiff by the Managing Officer the defendants, instead of filing an appeal under section 22 of the Act to the Settlement Commissioner, filed a revision petition before the Chief Settlement Commissioner under section 24 of that Act. The Deputy Chief Settlement Commissioner with delegated powers of the Chief Settlement Commissioner by his order dated 23 September 1980 (Ext.PW1/2) dismissed the revision petition of the defendants. He did find that the revision petition was incompetent as the defendants did not file an appeal under section 22 of the Act. However, he went through the records and, after recording submissions of the parties in detail, came to the following conclusion :- "II.Perusal of Caf [claim application form under the Displaced Persons (Compensation & Rehabilitation) Act, 1954] shows that respondent No. 3 (HarkishanLal, plaintiff) on page 1 mentioned the names of S/Shri Tara Chand, Bhim Sen, Vijay Kumar, Basant Kumari, Chanan Devi, Harkishan Lal, Prem Kumar, Satpaul, Swaran Kumari and Raj Kumari. He has not mentioned the name of his uncle Shri Mela Ram. It is also in correct that in para 10 of the Cap the respondent No. 3 stated that allotment of two tenements IE/3 and IE/4 Lajpat Nagar, New Delhi, was for the benefit of two families including the family of his uncle, Shri Mela Ram. Page 1 sof the property file also does not support the case of the petitioners. It is nowhere mentioned that the allotment was made for Shri Harkishan Lal as well as Shri Mela Ram. There is nothing on the file to show that Shri Mela Ram contributed towards the payment of rent/cost of property. I further find that Shri Mela Ram was also a claimant and if he had any interest in the tenement, he would have got the cost of the tenement adjusted. The record shows that he utilised his compensation towards some other properties purchased by him. I feel, that the title follows the consideration and passes in favor of the person, who pays the consideration money. I find that this view was also taken by the Central Government in case No. 38(28)/72-IMP(A) decided on 11.12.72. To my mind, conveyance deed/lease deed have rightly been issued - to respondent No.3. There is also no merit in the revision petition which is hereby rejected. "
(17) Not satisfied with this order the defendants filed a further petition under section 33 of the Act before the Central Government. This again was dismissed on 31 January 1981 (Ext.PW2/2). The Central Government again examined the record. The Central Government found with reference to Caf filed by Mela Ram as well as Harkishan Lal and his brothers that at no stage the claims of the parties were considered as claims of Joint Hindu Family but they were treated as separate and paid as separate for half share each. It was also found that even the brothers of Harkishan Lal had been paid their separate l/8th share. The contention that the defendants and the plaintiff were Joint Hindu Family did not find favor with the rehabilitation authorities as this contention of the defendants was not supported by any evidence or any other material on record. With reference to Caf of Harkishan Lal, the Central Government further found that certificate of registration in the case of Harkishan Lal showed a strength of nine members of family and on that basis Harkishan Lal was entitled for allotment of two quarters. With reference to Caf filed by Mela Ram it was found that in Questionnaire "Appendix D" at page 9 of the Caf No. ND/ 2057/IV Nta against entry of Col.A (i) regarding the allotment of property, he had stated "Shop No.6, Partap Market, Jangpura, Mathura Road. New Delhi" and he had not mentioned anything about the allotment of Qr. No. IE/3-4. Thus, the Central Government found that if it were a fact (as contended by the defendants) that these quarters were allotted on the strength of Joint Hindu Family, certainly Mela Ram would have mentioned about the allotment of quarters also against this column. Mela Ram till his death in 1967 made no claim on the two tenements and made no effort to get his compensation adjusted either towards cost or the rent of these quarters or to pay the cost in cash. The Central Government was of the opinion that if the allotment of these quarters was made to Mela Ram also he would have certainly asserted his right on these quarters and would have made efforts to make payment towards the cost of the quarters. Rather, on the contrary, Mela Ram made full payment towards the shop No. 6 in the Partap Market, Jangpura, New Delhi, from out of his compensation amount and utilised the balance compensation for the purchase of another shop No.5 in the Partap Market. The Central Government, therefore, arrived at the finding that allotment of the tenements was made to Harkishan Lal on the basis of strength of the family members and it was he who made the payment of the entire cost of the tenements, and, thus, the lease deed and conveyance deed were rightly issued in his favor in 1977. The Central Government remarked that the claim of the defendants was absolutely baseless.
(18) Section 27 of the Act records finality to the orders made by an officer or authority under this Act. This section is as under :- "27.Finality of orders.- Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act, including a managing corporation, shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceeding. "
Section 36 of the Act bars the jurisdiction of the civil court as well when any question raised before the Civil Court could be decided by any authority appointed under the Act. This section is as under : - "36.Bar of jurisdiction, Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
Off course the argument of defendants on this section was that it bars a suit but not the right to raise defense-in the written statement. It is not necessary for us to decide the scope of this section. The Supreme Court in Dhulabai's case has laid principles regarding exclusion of jurisdiction of civil court. But one thing is clear - if suit is barred, defense will also be barred because civil court would not have jurisdiction to decide that issue whether raised by the plaintiff or by the defendant. The defendants challenged the orders of the authorities in this Court in a writ jurisdiction (CWP 646/89). This writ petition was dismissed on 28 September 1981 (Ext.PW2/3) by a Bench of this Court after notice to the plaintiff. This Court upheld the orders of the authorities. The court found that the two tenements were allotted to Harkishan Lal on the strength of his family members and it was he who made payment towards the cost of these two tenements. It was also found that Mela Ram got his compensation adjusted against his two shops and that Mela Ram or any of his heirs at no time made any effort to make payment towards the cost of these two tenements. This Court found that the claim of the defendants that allotment and sale deed be treated on behalf of the Joint Hindu Family was incorrect and this claim was rightly rejected by the authorities.
(19) Mr. Aggarwal, learned counsel for the appellants (defendants) said that the question whether there was a Joint Hindu Family of which Harkishan Lal was Karta and whether the allotment of two tenements was made on that basis could be gone into by this Court as the rehabilitation authorities while deciding the claim of the defendants incidentally touched upon this point. We do not think that is a correct submission. Whether there was a Joint Hindu Family or that Joint Hindu Family held a property in Pakistan and whether the allotment was made to Joint Hindu Family are the questions which directly arose before the authorities and were decided by them. These are not incidental questions. If we refer to Caf, an applicant has to satisfy whether he would desire to receive payment of compensation in title form of cash, Government bonds, property, shares and debentures or in any other form. He was also to specify whether he was a member of Joint Hindu Family inpakistan, and further was the claim filed on behalf of the Joint Hindu Family as constituted in Pakistan, and if not, whether claim in respect of properties had been separately filed, and names and addresses of principal members of the Joint Hindu Family were also to be specified. In Appendix "D" to Cap, as mentioned in the order of the Central Government referred to above, information had to be given regarding joint claims, and in para (i) an applicant had to state if he had applied for compensation against a specified share in joint claims and was required to give full particulars of all those interested in the claim indicating which of them were minors under his guardianship. We are also not impressed with the argument that after the death of Tara Chand his son Harkishan Lal became Karta of the alleged Joint Hindu Family consisting of the heirs of Tara Chand and Mela Ram and his family members. If what the defendants say is correct that there was a Joint Hindu Family, normally Mela Ram would have been the Karta of that Joint Hindu Family. There is nothing on the record before the authorities under the Act that Harkishan Lal was the Karta of the Joint Hindu Family. Defendants said that because Harkishan Lal was educated so he was made Karta of that Joint, Hindu Family. It is submitted before us that there was an elder brother (Bhim Sain) of Harkishan Lal and nothing has been said if he was literate or illiterate and why he was not made Karta. There is no documentary evidence at all worth the name that Harkishan Lal was Karta of the Joint Hindu Family. In fact this argument appears to be made in desperation to get a right over the suit property. Widow of Mela Ram in her statement as DW-2 stated that since Harkishan Lal was educated, her husband Mela Ram always asked him to accompany him as her husband used to look after the affairs of the Joint Hindu Family after the death of Tara Chand. She said that the plaintiff was made to look after the work of allotment of quarters. She again asserted in her statement that her husband Mela Ram was the Karta of the family after the death of Tara Chand, and that plaintiff being educated was taken by her husband along with him in connection with allotment of quarters. This would not certainly make Harkishan Lal as Karta of any Joint Hindu Family.
(20) Another submission by the defendants and yet again in the alternative was that since the defendants were in lawful occupation of the suit property and on its transfer to the plaintiff, the defendants will be protected under section 29 of the Act from dispossession. This section 29, so far as it is relevant, is as under: - "29.Special protection from ejectment to certain classes of persons.- (1) Where any person to whom the provisions of this section apply, is in lawful possession of any immovable property of the class notified under sub-section (2), which is transferred to another person under the provisions of this Act, then, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in the property, be deemed to be a tenent of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer: Provided........ (2) The Central Government may, from time to time by notification in the Official Gazette, specify the class of persons to whom, and the class of immovable property in the compensation pool. other than agricultural land. in respect of which, the provisions of this section shall apply and in issuing any such notification the Central Government shall have regard to the following matters, that is to say.- (a) the length of the period turn which any such persons may have been in lawful possession of the property; (h) the difficulty of obtaining alternative accommodation; (c) the availability of any other suitable residential accommodation for the use of the transferee; and (d) such other matters as may be prescribed. "
From this section one thing is quite clear that the transferee of immovable property from the compensation pool constituted under section 14 of the Act cannot proceed against the lawful occupant unless perpetual lease deed and conveyance deed have been executed in his favor. Moreover, the lawful occupant has to be of the authorities appointed under the Act to manage the properties in the compensation pool. That is not the case here. The defendants, as noted above, have claimed that their predecessor Mela Ram was licensee of the plaintiff. We have not been shown by the defendants any notification issued under sub-section (2) of section 29 of the Act by the Central Government for us to hold otherwise. Mr. Aggarwal referred to a decision of the Punjab and Haryana High Court in Kesar Das and others v. Jalsa Ram and others, (1967) Vol. 69 P.L.R.499. We are afraid this judgment does not help the defendants at all. In this case it was held that a person who was a tenant under the custodian of evacuee property which ultimately formed part of the compensation pool, or was an allottee thereof under the Evacuee Property Act, would be covered under section 29 of the Act. The suit property was not an evacuee property. It was built by the Central Government for the purpose of granting rehabilitation relief to the displaced persons who had migrated from Pakistan and formed part of the compensation pool. It was a Government built property. It is not the case of the defendants that they were either the tenants or the licensees under the Act.
(21) A great deal of arguments were addressed that the defendants had become owners by adverse possession, or that the suit was barred by limitation. It was submitted that inspite of specific plea in the written statement that the defendants were owners by adverse possession, no issue was framed by the trial court. We, however, find that issue No. 5 was comprehensive enough to include all the defenses of the defendants, though perhaps it would have been better for the trial court to have framed issues separately. In any case. no prejudice has been shown to have been caused to the defendants. They led evidence and that evidence was discussed in the impugned judgment. No doubt, it is for the court to frame the issues as required under sub-rule (5) of Rule 1 of Order 14 of the Code, but the issues can be framed only after reading of the pleadings, examination of the parties under Rule 2 of Order 10 and after hearing the parties or their pleaders, and then ascertaining upon what material proposition of facts or law the parties are at variance The assistance of the parties or the pleaders in the framing of issues is inherent in the subrule. Then under Rule 5 of Order 14. court has power to amend issues or frame additional issues, or even to strike out any issue. This the court can do on the application of either of the parties as well. Defendants did not choose to file any such application and their grievance at this stage that a separate issue on their plea of adverse possession was not framed has to be rejected. Duty is also cast upon the parties to bring to the notice of the court to frame issues as may be necessary for determining the matter in controversy between the parties.
(22) Mr. Aggarwal said with reference to the title deeds that the plaintiff became owner of the suit property w.e.f. 1 November 1954. If we refer to the lease deed (Ext. PW1 /1) it has been executed on 24 June 1977 for a period of 99 years commencing from 1 November 1954. Conveyance deed (Ext.PW1/2) respecting superstructure being tenements E-l/3-4, Lajpat Nagar, New Delhi, was also executed on 24June 1977, but there is nothing in this document to show that the plaintiff became owner of the tenements from any earlier date. Reference was made to a decision of the Supreme Court in Bishan Paul v. Mothu Ram, , where the court held with reference to Rules 90 and 92 of the Rules framed under the Act that the title to the property passed when sale became absolute and not when certificate of sale was issued. The court also held that when certificate of sale is issued it would relate back to the date when the sale became absolute. These Rules pertain to sale of property by public auction, and have no application in the present case. Contention of Mr. Aggarwal was that when claim of plaintiff had been adjusted against the two tenements, or when nothing was due from him, he would be deemed to have become owner from the date of allotment of these tenements w.e.f. 1 November 1954 under the Act. He, therefore, said that even though plaintiff had not become owner, he, being an allottee, could file a suit for possession against the defendants, and cause of action arose in his favor on I November 1954. On the basis of lease deed (Ext.PW1/ l) and conveyance deed (Ext.PW1/2) it is difficult to appreciate the argument of Mr. Aggarwal, even though in the alternative. The judgment of the Supreme Court aforementioned and the judgments of the courts which were taken note of by the Supreme Court pertain to properties which were freehold unlike here where there is a perpetual lease deed respecting the land and conveyance deed regarding the superstructure. The suit is for possession of the superstructure.
(23) As we have seen above, the plaintiff said that cause of action for filing the suit accrued for the first time on 27 February 1980 when the vacant possession was demanded and finally (a week back) when the defendants refused to surrender the possession of the suit property. As regards cause of action for mesne profits, the plaintiffs case was that it first accrued on 31 August 1979 and again as and when it fell due. The plaintiff claimed mesne profits for the last three years. The defendants gave a cryptic reply just denying the averments of the plaintiff and then said that no cause of action had ever accrued in favor of the plaintiff and against them. Defendants had denied receipt of any notice from the plaintiff requiring them to quit and also denied that any demands were made by the plaintiff requiring them to vacate the suit property. defendants said that suit was barred by limitation as they had been in possession of the suit property for the last more than 32years. They said that Article 64, and not Article 65, of the Schedule to the Limitation Act, 1963, was applicable. Article 64 and Article 65 (in relevant part) are as under :-
____________________________________________________________________________ Description of suit Period of Time from which limitation period begins to run. ____________________________________________________________________________ 64, For possession of Twelve The date of immovable property based on years dispossession. previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. 65. For possession of Twelve When the posse- immovable property or any year session of the interest therein based on defendant tide. becomes adverse to the plaintiff. Explanation - xx xx xx ____________________________________________________________________________ These Articles are independent of each other. Article 64 applies when plaintiff had been dispossessed from a property which was earlier in his possession. This is not the case here. Defendants have not pleaded that on termination of license of Mela Ram or their otherwise becoming in unlawful occupation of the suit property, would amount to dispossession of the plaintiff. This argument, even if taken, would appear to be rather farfetched. It was never the case of the defendants that plaintiff was previously in possession of the suit property and had been dispossessed.
(24) For non-suiting the plaintiff on the basis of Article 65 it had to be shown by the defendants that their possession had become adverse to the plaintiff from a particular date. In the grounds of appeal, the defendants said that Article 65 was not applicable, but before us a great deal of argument was addressed that possession of the defendants had become adverse to the plaintiff. This plea is based on the assumption that Mela Ram was licensee and since the license is always personal to the licensee it cannot be inherited by his heirs, and that license would terminate on the death of the licensee. Merely because the defendants had been in possession of the property for over 30 years would not mean that their possession had become adverse to the plaintiff. This has never been and could not be pleaded in the facts of the present case. Their stand had been that the allotment of two tenements was in the name of the plaintiff as Karta of Joint Hindu Family of which the defendants were also the members. It was also pleaded that there was an oral partition or family settlement under which the suit property came to their share. As to when this oral partition or family settlement took place, there is no evidence. We have to accept the stand of the plaintiff that Mela Ram and his family members were allowed to occupy the suit property as they had no other place to stay and, thus, a license was granted to them to occupy the suit property.
(25) We do not think that license to occupy the suit property was granted by the plaintiff only to Mela Ram. It had to be for Mela Ram and his family members. After the death of Mela Ram his family members would continue to be licensees of the plaintiff. In any case the grant of license could be implied as well from the conduct of the grantor. This is section 54 of the Indian Easement Act, 1882. It is not that immediately on the death of Mela Ram plaintiff asked his family members to vacate and hand overpossession of the suit property to him. Defendants have not pleaded of such date. Rather, as we have noted above, they denied that any demand was made by the plaintiff requiring them to quit. Thus, even if license was not expressly granted it was clearly implied from the conduct of the parties. As a matter of fact, in the cross-examination of the plaintiff, the defendants have set up a case that after defendant No. 1 (Jagmohan Lal) joined service he obtained a rent receipt from the plaintiff with a view to submit the same in his office. In Beni Madhavprasad and others v. Rasiklal Ambalal and others, , the contention raised was that license to occupy a house was to one 'C' and not to 'C' and all members of his family, and that, therefore, the license terminated on the death of 'C' and the heirs' possession of the house after the death of 'C' was no better than that of a trespasser and became adverse to the owners of the house. This contention was repelled and the court held that the license to live in the house was for the residence of 'C' and the residence of his family. It. therefore, could not have been terminated after the death of 'C'. A license is no doubt not annexed to the property in respect of which it is enjoyed, nor is it a transferable or heritable right, but is a right purely personal between grantor and licensee, Unless a different intention appears it cannot he exercised by the licensee's heirs on his death. However, when license is granted to the licensee for his residence and for residence of his family it does not terminate on the death of the licensee, but the license enures to the benefit of the members of the family of the licensee. Even otherwise, we find that on the death of Mela Ram. even if the license was personal to him, the plaintiff acquiesced in the possession of defendants being heirs of Mela Ram. Defendants remained in possession of the suit property in that capacity. Animus is an important ingredient in the claim of adverse possession. Assuming that after the death of Mela Ram possession of the defendants became unlawful, but that would not in itself mean that possession of the defendants had become adverse to the plaintiff. Animus to advance claim to title by the defendants is lacking. In this view of the matter the decisions referred to by Mr.Aggarwal in Makina Atchayya Patrudu v. Jalaluddin Sahib and others Air 1938 Madras 454. and Chinnan and others v. Ranjithammal, Air 1931 Madras 216, have no relevance.
(26) Under section 14(2) of the Act, all the properties in compensation pool shall vest ill the Central Government free from all encumbrances. That being so, when lease deed and deed of conveyance were executed and suit property transferred to the plaintiff in 1977 it was free from all encumbrances. Till then question of defendants' claiming any adverse possession would certainly not arise. As we have held above that the defendants were licensees of the plaintiff, they could not deny the title of the plaintiff. Under section 116 of the Evidence Act no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such license was given. In support of plea of adverse possession reference was made to a decision of the Supreme Court in K. V. Swamynathan & ors v. E. V. Padmanabhan & ors., Jt 1991 (1) S. C. 83. In this case the court held that adverse possession by nature implies the ownership of another. Where one person is in possession of the property under any title, and another person claims to be the rightful owner of the property under a different title, the possession of the former is said to be adverse with reference to the latter. Adverse possession is a statutory method of acquiring title to land by limitation. It depends on animus or intent of occupant to claim and hold real property in opposition to all the world: and also embodies the idea that the owner of the property has knowledge of the assertion of ownership by the ocupant.
(27) Onus is on the defendant to prove that he had been in adverse possession against the plaintiff continuously for more than 12 years immediately before the filing of the suit. Once the plaintiff establishes his title, onus will be on the party who sets up a title by adverse possession. When the plaintiff and the defendant are close relatives, strong evidence of hostile possession has to be there. Long possession is not necessarily an evidence of adverse possession. To claim title by way of adverse possession animus possidendi must be evidenced by acceptable evidence. Thus, a person who intends to perfect his title by adverse possession must necessarily have animus having a bona fide belief that property belongs to him and as such he has been in possession continuously for a period of 12 years and more. A defendant cannot perfect his title by adverse possession when he is under a bona fide belief that the property belongs to him and a.s such he has been in possession as necessary animus is lacking for perfecting the title by adverse possession. In P. Lakshmi Reddy v. L. Lakshmi Reddy, . the court considered the law relating to adverse possession while considering Article 144 of the Limitation Act. 1908. It .said ''now. the ordinary classical requirement of adverse possession is that it should be nec vinec clam nec precario. (See Secretary of Slate for India v. Debendra Lal Khan. . The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna. 27 Ind App 136 at p. 140(PC)(B). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the coheirs. When one co-heir is found to he in possession of the properties it is presumed to he on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy, 1912 Ac 230 (C). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. "
(28) In the present case, we find that at no point of time it could be said that defendants' title to the suit property was hostile to the plaintiff. Defendants have taken various pleas ill the alternative which are inconsistent and at time destructive of each other. A party can plead inconsistent pleadings and inconsistent set of facts can be pleaded and relief claimed in the alternative, but the parry cannot he permitted to allege two absolutely inconsistent facts each of which is destructive of other. As a matter of fact. such type of evidence on inconsistent pleas does not inspire confidence, and when the pleas are merely destructive of each other evidence would certainly becontradictory. When the defendants for the first time approached the authorities under the Act (Ext. DW8/1 ) it was stated that the two tenements were allotted in the name of Tara Chand and after his death these were transferred to the plaintiff who is son of Tara Chand. They said the suit property was in their possession and the other tenement was in the possession of the plaintiff, and "the property in question was transferred on the strength of joint family." They said that the suit property was transferred to them and the other tenement to the plaintiff. It was also claimed that when these tenements were allotted to the plaintiff the name of Mela Ram did also exist in the allotment letter. We have already seen above that the stand of the defendants did not find favor with the authorities. The defendants, therefore, on the one hand, assert their right on the suit properly being members of the Joint Hindu Family of which plaintiff was the Karta, and in the alternative they say that they had agreed to the allotment in the name of the plaintiff on the understanding that he would transfer I /2 share, i.e., the suit property, to them whenever Mela Ram wanted it, and that the plaintiff held the property only as a benami, the defendants being the real owners.
(29) It is incongruous that defendants are claiming adverse possession when on the the one hand they themselves claim to be owners of the suit property in their own right. As noted above, the important ingredient of adverse possession, i.e., animus, is totally lacking in the present case. In Parsinni (Dead) by L.Rs. & Ors, v. Sukhi & Ors, , the Supreme Court said that party claiming adverse possession must prove that his possession was peaceful, open and continuous, and that possession must be adequate, in continuity, in publicity and in extent to show that their possession was adverse to the true owner. The court said that "when the appellants claimed title to the suit lands it is sufficient for them to show that their possession is overt and without any attempt at concealment so that the respondents against whom time is running, ought, if to exercise due vigilance to be aware of what is happening." We are of the opinion that no case of adverse possession has been made by the defendants in the present case.
(30) In view of the Benami Transactions (Prohibition) Act, 1988, the defendants could not claim any title to the property assuming that suit property was held by the plaintiff benami in their name (Section 4). However, such a prohibition is not applicable where the person in whose name the property is held is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners in the family. This is not so in the present case as orders of the authorities under the Act, which we have noted above, would show. We will hold issues 2, 3, and 5 in favor of the plaintiff. Notice (Ext. DW1 /PA) served by the plaintiff on the defendants terminating their license and requiring them to vacate has been brought on record by the defendants themselves and proved and issue No.4, therefore, does not survive for any further consideration. Nothing has been said on issue No. 6, and, as noted by the trial court, the defendants did not lead any evidence that claim of the plaintiff for damages at the rate of Rs.50/ -per month was in any way excessive. Rather the court took the judicial notice that the amount of damages claimed was quite nominal considering the size of the suit property and the locality where it is situated. This issue is, therefore, also held in favor of the plaintiff.
(31) Accordingly, the appeal fails and is dismissed. Judgment and decree of the trial court are affirmed. Parties are left to bear their own costs in this appeal.