Delhi District Court
Sh. Govind Narain vs Sh. Vijender Singh @ Munna on 9 October, 2020
Govind Narain V. Vijender Singh @ Munna & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 64/2020
UNIQUE CASE ID NO.: 611086/2016
IN THE MATTER OF :
Sh. Govind Narain
S/o Late Sh. Brij Kishore
R/o 10A, Under Hill Lane,
Civil Lines, Delhi110054. ....Plaintiff
VERSUS
1. Sh. Vijender Singh @ Munna
@ Vijender Chowdhary
S/o Late Sh. Kanwal Singh
R/o Quarter No. 10,
Under Hill Road,
Civil Lines, Delhi110054.
Also at:
Open Court Yard (Servant Quarters)
10A, Under Hill Lane,
Civil Lines, Delhi110054.
2. Sh. Ranjeev Seth
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S/o Late Sh. Ishwar Dass Seth
R/o 12A, Under Hill Lane,
Civil Lines, Delhi110054. ....Defendants
SUIT FOR POSSESSION AND RECOVERY OF DAMAGES
FOR WRONGFUL USE AND OCCUPATION
Date of institution of the Suit : 20/08/2008
Date on which Judgment was reserved : 04/09/2020
Date of Judgment : 09/10/2020
:: J U D G M E N T ::
By way of present judgment, this court shall adjudicate upon
suit for possession and recovery of damages for wrongful use and
occupation filed by the plaintiff against the defendants.
CASE OF THE PLAINTIFF AS PER PLAINT
Succinctly, the necessary facts for just adjudication of the
present suit, as stated in the plaint, are as under:
(a) The plaintiff is owner of property bearing no. 10A/A, Under
Hill Lane, Civil Lines, Delhi which he got as an exclusive
owner by virtue of a Partition and he became coowner of
common area, shown in green, which is part of entire property
that was partitioned. The other coowner of this common area
shown in green is Ranjeev Seth. The common area/ passage
terminates in an open court yard between the properties no.
10A and 12A, under Hill Lane, Civil Lines, Delhi.
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(b) The defendant no.1 is a trespasser, who in May, 1998
trespassed into a portion of the common area coowned by the
plaintiff and defendant no .2. The matter was reported to the
area police and the police got the trespassed area vacated
from defendant no.1. Thereafter, the defendant no.1 filed a
suit on 16.07.1998 for perpetual injunction titled as Vijender
Singh Vs. Ishwar Dass Seth & Ors. Bearing Suit no. 78/03
(Old no. 1415/1998). In the said suit, the defendant no.1 got
an exparte interim stay on 17.07.1998 from dispossession.
Under the protection of that Order, the defendant no.1 again
started the process of trespass by gradually putting building
material into the property. Without the knowledge of this
suit, the plaintiff herein alongwith Late Sh. Ishwar Das Seth,
the other coowner of the common area and one Sh. Dalip
Kumar, filed suit titled as Ishwar Dass Seth & Ors. Vs.
Vijender Choudhary being Suit no. 79/03 (Old no. 1416/98)
on 16.07.1998 and got a restraint Order on 20.07.1998
restraining the defendant no.1 from trespassing the open
court yard forming part of properties bearing no. 10A and
12A, Under Hill Lane, Civil Lines, Delhi110054.
(c) The defendant no.1, taking advantage of the two conflicting
Orders, made a temporary structure by putting bricks over
bricks without mortar in an area of 10 * 10 feet and put a
Tarpaulin as a temporary roof.
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(d) The defendant no.1, during the pendency of the two Suits,
further extended his trespass and he is in wrongful
possession as a trespasser of an area of about 10*20 feet
measured from the boundary wall of the adjoining Apartment
(Municipal no.14) as well as one lavatory measuring about 5*5
feet and in this manner, the defendant no.1 is in wrongful
possession of about 225 sq. feet or 25 sq. yards.
(e) In the suit filed by defendant no.1, the material averment read
as under:
"That the plaintiff and his brother Devender Singh
were living in the back portion i.e. the servant
quarters, marked red in the rough site plan for the
last 16 years. They have occupied this portion of
the premises from Seth Badri Prasad who was the
owner of the portion. That Seth Badri Prasad sold
his portion of the property to one Shri Naval Kishore
Aggarwal who has constructed flats on the
property. Possession of one room, marked green in
the rough site plan, was handed over to Sh. Naval
Kishore Aggarwal by the plaintiff. That the other
rooms and a lavatory is in the possession of the
plaintiff and his family."
In the Suit filed by the plaintiff herein, the material
averment in the Written Statement of the Defendant
no.1 is as under:
"It is submitted that the court yard's half portion
falls in the property No.10A where the servant
quarter still exist and there are three lavatories and
the other half portion falls in the property No.14,
now known as property No.10, where the
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defendant is in possession of a room and a
lavatory.
...In order to avoid any litigation, after taking
possession of the servant quarters from various
occupants they had demolished them and
constructed a wall and did not raise any claim on
the property in dispute which were in possession of
the defendant, a room and a lavatory."
The Ld. Court of Sh. H.S. Sharma, A.D.J, Delhi was
seized of both the Suits and on 20022005 when
the Ld.Judge made the observation "...I have gone
through the plaint. It is not clear from the entire
plaint as to in what capacity the plaintiff is
occupying the premises. It has been enquired from
the plaintiff as to whether he is owner or tenant or
a permissive occupier of the premises...." and
specifically called upon the Defendant No.1 herein
in his Suit to state as to what is his right to possess
the aforestated portion, the defendant No. 1 has
stated as under:
"He has submitted that Shri Badri Prasad was a
big landlord and he (Badri Prasad) had orally
gifted this property to him."
(f) The bare comparison of the statement/averment made by the
defendant no.1 at different stages show that the whole story is
false as Badri Prasad had no right whatsoever in the common
area in this portion shown as green. Furthermore, there is no
question of making an oral gift of immovable property of more
than Rs.100/.
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(g) The defendant no.1 being illegal/unauthorized occupant of
the portion shown in red in Site Plan comprising a temporary
structure and toilet measuring approx. 225 sq. ft. or 25 sq.
yards in Open Court Yard, has never paid till date any
damages for wrongful use and occupation at the market rate
and the defendant no.1 has rendered himself liable for
payment thereof.
(h) The plaintiff is claiming damages i.e. wrongful use and
occupation charges at the nominal market rate i.e. at the rate
of Rs.200 per sq. yards for last three years from the date of
filing of suit i.e. from August 2005 to July 2008. The
outstanding amount becomes Rs.1,80,000/. The defendant
no.1 has failed to vacate and handover vacant peaceful
possession of the suit premises to the plaintiff.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT
Summons for settlement of issues were issued to the
defendants and the defendant no.1 has filed Written Statement in
the present case. Succinctly, the case of the defendant no.1 is as
under:
(1) The present suit has been filed beyond the period of limitation
and thus, time barred. In so far as the plaintiff is concerned,
Articles 64 and 65 of the Limitation Act, 1963 come into play
against the plaintiff.
(2) The suit of the plaintiff is liable to be dismissed and/ or
stayed in view of Section 10 CPC as the plaintiff has already
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filed a suit against the defendant. The issues are directly and
substantially involved in the present matter are the same
which are being adjudicated in the previously instituted
matter.
(3) The suit of the plaintiff is liable to be dismissed on account of
nonjoinder and misjoinder of parties as the plaintiff is not the
owner of the suit property of which decree of possession is
being sought by him and further, the plaintiff has not sought
the declaration of the suit property to be its owner till date.
As the averment of the plaintiff in the earlier suit filed by him
against the defendant, it has been stated that "The said two
properties (10A and 12A) are divided by a common passage
terminating in an open court yard which under the said
partition, was left in common for use and enjoyment of the
residents/ occupants of both the properties no. 10A and 12A.
A Plan showing the location of the said passage and open court
yard is annexed hereto and marked as AnnexureB. The
present suit is concerned only with the said passage and open
court yard, hereinafter referred to as the suit property.
The suit property, being the said passage and open court
yard continues to belong exclusively in and has been so used
and enjoyed in common by the owners and occupants of
properties no. 10A and 12A, Under Hill Lane."
As per the averments of the plaintiff herein in the earlier
suit filed by him against the defendant no.1, it was averred
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that properties no.10A and 12A are divided by a common
passage terminating in an open courtyard which was left in
common for use and enjoyment of the residents/ occupants of
both the properties/ occupants and the said common passage
and open courtyard continues to belong exclusively to and
has been so used and enjoyed in common by the owners and
occupants of properties no.10A and 12A, Under Hill Lane. In
view of this, how can the plaintiff alone assume and presume
that he is the owner of the present suit property and without
declaration presumed himself to be the owner and claimed
possession and mesne profits for the same. Even properties
no. 10A and 12A have further been partitioned and/ or sold.
Thus, the plaintiff is not the owner of the suit property in his
own right whatsoever. The plaintiff has not filed any
document on record to show that he is the owner of the suit
property or the premises which are in occupation of defendant
no.1 and hence, cannot claim any decree for partition.
(4) The suit is liable to be dismissed in view of Section 6 of the
Specific Relief Act in so far as the plaintiff is claiming that the
plaintiff herein trespassed in the suit property in May, 1998.
(5) In the brief facts, it has been submitted that defendant is in
occupation of the suit property since 1982 and enjoying
peaceful possession of the property since then. The properties
no. 10, 10A and 12A, Under Hill Road, Delhi are huge
bungalows having number of servant quarters and the
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property was initially owned by the late Grandfather of late
Shri Badri Prasad, Late Shri Ishwar Das Seth and the
plaintiff herein. The said properties were divided/partitioned
interse the LRs. The said LRs further divided the properties
amongst themselves and either resided therein or sold their
shares. The property no.10 came to the share of late Shri
Badri Prasad, 12A to the share of Ishwar Das Seth and 10A
to the share of plaintiff. Late Shri Badri Prasad sold his share
of the property to Shri Naval Kishore Aggarwal and Shri
Ishwar Das Seth sold a big portion of his property to one Shri
Dalip Chaudhury, who is having his Kothi in front of the
premises occupied by the defendant. The defendant along
with his father Shri Davinder Singh were living in the back
portion i.e. the servant quarter, since about 1982 and they
occupied this portion of the premises from Seth Badri Prasad,
who was the owner of this portion. Seth Badri Prasad sold his
portion of the property to one Shri Naval Kishore Aggarwal
and who wanted to construct the flats on the said property
and for which he required certain portion and the defendant
herein gave the possession of one room to Shri Naval Kishore.
(6) The defendant herein is in possession of a room and a
lavatory and is having a ration card, water meter, electricity
connection in the name of his brother in the premises in
dispute, identity card issued by the Election Commission.
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(7) At one point of time in 1991, one room in possession of the
defendant herein was sought to be demolished by MCD and it
was demolished and later on, reconstructed by the defendant
at the same place under the supervision of the then owner
Shri Badri Prasad.
(8) In July, 1998, Shri Ishwar Das Seth and Shri Dalip
Chaudhury in connivance with the Police Officers of P.S. Civil
Lines tried to dispossess the defendant herein from the suit
property and they forcibly took the defendant to the Police
Station and detained him illegally and also took away almost
all his household goods, behind his back and a list of the
same was prepared by the police. A FIR was registered against
the defendant herein under Section 448 IPC and he was
released on bail. The police officers took away the asbestos
sheets after demolishing the same, which were fixed over the
room where the defendant was residing with his family
members. The defendant and his family members since then
are living in the room, which is open to sky and the room
since then has been covered with a Tirpal.
(9) The defendant herein filed a suit for permanent injunction in
the Hon'ble High Court of Delhi against Shri Ishwar Das Seth,
Shri Dalip Chaudhury and two Police Officers praying therein
that the said persons be restrained from forcibly evicting the
defendant from the suit property. A stay to this effect was
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granted in favour of defendant herein on 17.7.98. The said
suit was numbered as 1415/98.
(10) The plaintiff herein along with Shri Ishwar Das Seth and Shri
Dalip Kumar alias Dalip Chaudhury also filed a suit against
the defendant numbered as 1416/98 in July 1998 claiming
the relief "pass a decree for perpetual injunction restraining
the defendant in any manner entering, encroaching upon,
trespassing into or undertaking any construction on the suit
property, namely the private road/ passage and open
courtyard forming part of and located between the properties
bearing no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi
14. This shows that plaintiff herein never claimed in July,
1998 the ownership or possession of the portion in possession
of the defendant. The defendant in the said suit claimed to be
in possession of the property for more than 16 years (since
1998).
(11) In the Suit no. 1415/98, the Hon'ble High Court vide Order
dated 13.10.99 was pleased to appoint Shri Puran Chand, a
Local Commissioner, Deputy Registrar (Accounts), Hon'ble
High Court of Delhi, New Delhi with directions to inspect the
premises bearing no. 10A and 12A, Under Hill Road, Delhi
and to report about extent nature of the occupation of Shri
Vijender Singh, S/o Late Shri Kanwal Singh. In his Report,
the Local Commissioner stated that the defendant herein in
an occupation of one temporary room and one attached
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latrine, which is very old and appears to have been
constructed about 25 years back. Regarding the room in
occupation of the defendant, it was found out that its two
walls are about four feet height and appear to have been
constructed several years back and are old one. The floor of
the said room is also old one and appears to have been laid
about 15 years back. The LC along with its report also
annexed 24 photographs taken at the site. The LC reported
that at the back portion of the room, there is about 12 feet
high boundary wall. The rest of the walls of the room have
been temporarily built up with brick which are loose and can
be easily removed without applying any force as no cement
mixed with sand has been used. The structure of the room is
temporary and no "PUCCA" room has been built. There is no
roof on the room and the same is covered with polythene
sheets with the help of wooden support. The existence of two
walls of about 4 feet height and old flooring shows that there
was one room built up long back. Sh. Vijender Singh informed
that he was in occupation of one room and one latrine about
16 years back which was demolished by M.C.D. about 9 years
back. There is a big heap of debris lying outside the latrine in
occupation of Sh. Vijender Singh and is stated to be that of
his room demolished by M.C.D. about 16 years back. Sh.
Vijender Singh told that he was the owner of the room and
latrine in his occupation but not a tenant. He further
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informed that he was in possession of the room and latrine for
the last 16 years. I asked him to produce the documents in
this regard but he informed that the same were deposited by
him with Hon'ble High Court in Suit no. 1415 of 1999. On
the right side of the room of Sh. Vijender Singh, there is a
building under construction being built by a builder. The
electrical fittings in the suit premises are very old and electric
meter has also been provided therein. There also exists water
connection in the suit premises. Keeping all these facts into
consideration, I am of the opinion that Sh. Vijender Singh has
been residing in the suit premises for a considerable long
time. The plaintiff herein filed his objections to the said report
of the Local Commissioner.
(12) The plaintiff filed an application under Order 1 Rule 10 CPC
in the Suit no. 1415/98 praying therein that he be made a
party in the suit, which was declined by the Hon'ble High
Court vide its Order dated 21.03.2003 holding that since the
plaintiff herein has already filed his own Suit no. 1416/98, it
was directed that both the suits would be takenup together.
(13) Ms. S.S. Maan, the then Ld. ADJ, Delhi passed an Order that
plaintiff herein was not allowed to take part in the case
proceedings of the suit titled as Vijender Singh Vs. Ishwar Das
Seth & Ors. It is submitted that both the suits were originally
filed in the Hon'ble High Court.
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(14) On 19.07.2004, issues were framed in the case of Ishwar Das
Seth & Ors. Vs. Vijender Chaudhary and the said issues are
subsequently the same, which are involved in the present
suit.
(15) On merits, the contents of the plaint have been denied and it
has been submitted that the portion, as shown in red colour
in the Site Plan, as supplied to the defendant herein, was
never part of the property 10A, Under Hill Lane, Civil Lines,
Delhi and the same was never under the ownership either of
the plaintiff herein or Sh. Ishwar Das Seth and now, his son
i.e. the defendant no.2. The red portion of the Site Plan of
property no. 10, Under Hill Lane was under exclusive
ownership of Late Seth Badri Prasad. The possession of two
rooms and one latrine was given by Seth Badri Prasad to
defendant herein and his brother Devinder Singh.
Subsequently, Seth Badri Prasad sold the property no. 10 to
Shri Naval Kishore Aggarwal and Shri Deepak Aggarwal and
who constructed the flats and since one room, which was in
possession of the defendant herein was causing some
obstructions, he requested the defendant herein to give the
said room for construction of flats and as per the
understanding reached between Sh. Naval Kishore Aggarwal
and the defendant, the defendant handedover one room to
him and which has been shown in the Site Plan annexed
alongwith WS. The remaining one room and one latrine still
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continue to remain in the occupation and possession of the
defendant herein.
(16) The defendant no.1 is in possession of the said premises since
1982 and has become the owner thereof by way of adverse
possession not only against the original owner i.e. Late Shri
Badri Prasad, but also against Naval Kishore Aggarwal and
Shri Deepak Aggarwal and the other owners of the property, if
any. The plaintiff and defendant no.2 are not the owners of
the suit property of which they are claiming to be the owners
thereof.
(17) The plaintiff is not the owner of the said portion and therefore,
there is no question of paying any damages for the use and
occupation of the said portion and there is no question to
handover the said portion to the plaintiff. The plaintiff has
never given any notice in this regard. Even Ishwar Das Seth
and Dalip Chaudhary during their life time or their LRs as of
today have claimed any ownership right in the said suit
property. It has been prayed by the defendant no.1 to dismiss
the suit of the plaintiff with heavy costs.
EXPART PROCEEDINGS OF DEFENDANT NO.2
Despite service, none had appeared on behalf of defendant
no.2 on 24.04.2009 and accordingly, defendant no.2 was proceeded
exparte vide order dated 24.04.2009.
REPLICATION AND ISSUES
The plaintiff has filed the replication controverting the
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allegations/ contentions in the Written Statement of defendant no.1
and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were
framed vide Order dated 01/06/2009:
ISSUES
(1) Whether the plaintiff is the owner of the suit property? OPP
(2) Whether the plaintiff is entitled to decree for a sum of
Rs.1,80,000/ in favour of the plaintiff and against the
defendant no.1 for wrongful use and occupation charges till
July 2008? OPP
(3) Whether the plaintiff is entitled to pendentelite and future
damages for wrongful use and occupation charges at the
rate of Rs.300/ p.m.? OPP
(4) Whether the plaintiff is entitled to interest on the aforesaid
amount? OPP
(5) Whether the suit is barred by time? Whether the defendant
has become owner of the suit property by way of adverse
possession? OPP
(6) Whether the suit is bad for nonjoinder and mis joinder of
parties? OPD
(7) Whether the suit hit by Section 6 of Specific Relief Act? OPD
(8) Relief.
In the Order dated 09.10.2009, it has been mentioned that
some typographical error has been occurred in the issues and
issues were retyped as follows:
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(1) Whether the plaintiff is the owner of the suit property? OPP
(2) Whether the plaintiff is entitled to decree for a sum of
Rs.1,80,000/ in favour of the plaintiff and against the
defendant no.1 for wrongful use and occupation charges till
July 2008? OPP
(3) Whether the plaintiff is entitled to pendentelite and future
damages for wrongful use and occupation charges at the
rate of Rs.5000/ p.m.? OPP
(4) Whether the plaintiff is entitled to interest on the aforesaid
amount? OPP
(5) Whether the suit is barred by time? OPD
(6) Whether the defendant has become owner of the suit
property by way of adverse possession? OPP
(7) Whether the suit is bad for non joinder and mis joinder of
parties? OPD
(8) Whether the suit hit by Section 6 of Specific Relief Act? OPD
(9) Relief.
EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND
DOCUMENTS RELIED UPON BY THEM
The plaintiff, in order to prove his case, led plaintiff's evidence
and got examined himself as PW1. PW1 has filed his evidence by
way of affidavit wherein he reiterated and reaffirmed the contents of
the plaint. PW1 was crossexamined by counsel for the defendant.
PW1 in his testimony has relied upon the documents:
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(1) Site Plan is Ex.PW1/1.
(2) The Partition Deed dated 27.11.1958 is Ex.PW1/2.
(3) The Award dated 10.04.1973 is Ex.PW1/3.
(4) The Statement of defendant no.1 recorded by the Court of Sh.
H.S. Sharma, the then Ld. ADJ, Delhi is Ex.PW1/4.
(5) The FIR and other documents against defendant no.1 are
Ex.PW1/5 to Ex.PW1/12.
(6) The Mutation Letter is Ex.PW1/13.
(7) The Plaint and other documents filed in Suit No. 79/03 (Old
No. 1416/98) are Ex.PW1/14 to Ex.PW1/15.
During crossexamination, the Report of Local Commissioner
in Suit No 1415/98 is Ex.PW1/D1.
The plaintiff also got examined S.I. Kamta Prasad from P.S.
Krishna Nagar as PW2, who relied upon the FIR No. 201/98
Ex.PW1/6 (Two pages alongwith documents of the judicial file
which is Ex.PW1/5 to Ex.PW1/12).
On the other hand, the defendant no.1 has examined himself
as DW1, who relied upon the following documents:
1. Site Plan Ex.DW1/1.
2. Water bill in the name of defendant no.1 for the period May
1997 to October 1997 is Ex.DW1/2 and for the period
February 1992 to August 1995 is Ex.DW1/3 and receipt of
payment made on 17.06.1992 is Ex.DW1/4.
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3. The electricity bill in the name of brother of defendant no.1
and installed in the suit premises is Ex.DW1/5.
4. The Voter I. Card issued by Election Commission of India in
the name of defendant no.1 is Ex.DW1/6.
5. The Notice dated 30.07.91 issued by MCD is Ex.DW1/7 and
reply thereto dated 07.08.91 is Ex.DW1/8.
6. Another Notice dated 07.08.91 issued by MCD to defendant
no.1 to demolish the suit property is Ex.DW1/9 and reply
thereto is Ex.DW1/10.
7. Photocopy of letter dated 30.06.91 written to defendant no.1
by his brother from Manali alongwith the envelope is MarkB
(Colly.).
8. The report of Local Commissioner in Suit No. 1415/98 is
Ex.DW1/11.
(Note: In the Evidence by way of Affidavit of DW1 i.e. DW1/A
only 11 documents are given exhibited numbers i.e. DW1/1 to
DW1/11, however it appears that inadvertently in the
examination in chief recorded in Court it has been mentioned
that DW1 relies upon DW1 to DW12).
During crossexamination, the following documents were put
to the witness and the same were exhibited:
(a) Certified copy of plaint filed by defendant no.1 in Hon'ble High
Court is Ex.DW1/P1. The reply filed by Defendants no. 1 & 2
to the application of defendant no.1 (plaintiff in earlier suit)
under Order 39 Rule 1 & 2 is Ex.DW1/P2. The certified copy
of reply to the reply of defendants no. 1 & 2 is Ex.DW1/P3
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and affidavit is Ex.DW1/P4. Certified copy of Reply on behalf
of defendant no.1 (plaintiff in that suit) to the application of
defendants no. 1 & 2 under Order 39 Rule 4 CPC is
Ex.DW1/P5. Certified copy of Written Statement filed by
Inspector Ravinder Grewal, defendant no.1 is Ex.DW1/P6.
Certified copy of Written Statement of Kanta Parshad is
Ex.DW1/P7. Objections were filed by defendant no.5 and
defendants no.1 & 2 to the Report of Local Commissioner are
Ex.DW1/P8 and Ex.DW1/P9. Certified copy of Written
Statement filed by defendant no.1 herein in Hon'ble High
Court of Delhi is Ex.DW1/P10. Ex.DW1/P11 (already
Ex.DW1/6) is election card of defendant no.1. The Orders
passed in Suit No. 349/2012 are Ex.DW1/P12 (Colly.). In the
case filed by Sh. Ishwar Dass Seth and other photographs
were filed are Ex.DW1/P13 (Colly.). Ex.DW1/P14 (Colly.) are
the statements of PW2 Sh. Saminder Singh, PW1 Sh. Goush
Mohd. and one another witness as Ex.DW1/P15.
The defendant no.1 has also summoned and examined the
following witnesses:
(a) Sh. Kailash Chander, UDC, ZRO (Water), CentralII, Pratap
Nagar, Delhi as DW2. He had brought the Authorization
Letter Ex.DW2/1, which is signed by Ms. Poonam Vig, Zonal
Revenue Officer. He had also brought the photocopies of
summoned record in respect of water connection (new)
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0225790000, (Old No. is 716C) installed in premises no. 10,
Under Hill Road, Delhi in the name of Chaudhary Bijender
Singh. Copy of Water Bill generated in the name of
Choudhary Bijender Singh in respect of Consumption from
water connection bearing K. No. 0225790000 installed at 10,
Under Hill Road, Delhi54, which was generated on
21.03.2017 is Ex.DW2/2. Attested copy of meter diary and
attested copy of bill summary for the abovesaid connection
are Ex.DW2/3 and Ex.DW2/4. He had also brought
Certificate under Section 65B of Evidence Act, issued by ZRO
(C)II, Pratap Nagar, Delhi is Ex.DW2/5.
(b) Sh. Ashok Kumar, Section Officer from the Office of TPDDL,
Distt. Office Hudson Lines, Kingsway Camp, Delhi as DW3.
He had brought the summoned record in respect of electricity
connection bearing CA No. 60004170332 installed in the
premises no. 10A, Ground Floor, Under Hill Lane, Delhi54 is
Ex.DW3/1 (Colly. - 18 pages).
(c) Sh. Ghanshyam, JJA, Record Room (Sessions), THC, Delhi as
DW5, who brought on record the file of Criminal Appeal no.
24/16 titled as Vijender Singh V. State, which was decided on
20.07.2016 and the certified copies of Gimini Order and
judgment passed in the said appeal are Ex.DW5/1 (Colly. - 12
pages).
(d) Sh. Parvesh Kumar, Assistant Electoral Registration Officer,
Voter Center, AC20, DDA Colony, Sarai Phoos, Delhi as DW
6, who brought on record the electoral roll of AC20, Chandni
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Chowk. The name of Bijender Chaudhary S/o Sh. Kawal
Singh is mentioned at serial no. 976 in the list and the
computer printout of the same (three pages) is Ex.DW6/1.
The defendant has also examined Sh. Sanjay Sethi as DW4,
who tendered his affidavit in evidence. During crossexamination
conducted on 27.09.2017, photocopies of his D/L and I/D card
were Ex.DW4/P1 and Ex.DW4/P2. During crossexamination
conducted on 29.11.2017, the layout plan was marked as
Ex.DW4/P1. Although, Photocopy of DL of the witness was already
marked as DW4/P1 during the crossexamination done on
27.09.2017, however, during the crossexamination done on
29.011.2017 a layout plan was shown to the witness and the said
lay out plan was also marked as Exhibit DW4/P1.
This Court heard final arguments, as advanced by Ld.
Counsels for the plaintiff and defendant no.1 through video
conferencing as well as physically. I have perused the material
available on record.
ISSUE WISE FINDINGS
ISSUE NO.8
(8) Whether the suit hit by Section 6 of Specific Relief Act? OPD
The onus to prove this issue was upon the defendant. The
Ld. Counsel for the defendant has not addressed any arguments
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on this issue. The Ld. Counsel for the plaintiff has assiduously
argued as under:
Section 6 of Specific Relief Act envisages special
provision for recovery of possession, in case the
defendant has trespassed or forcibly taken possession of
the premises of the plaintiff, which could be presented by
the plaintiff within a period of 6 months of his
dispossession. The implication of invocation of the said
provision is that the plaintiff may not have to bear the
Advolrem court fees in terms of Section 7 (iv) (d) of Court
Fees Act. However, in case, it goes beyond 6 months, the
plaintiff is to pay Advolrem court fee for the claim of
possession, which is to be fixed in terms of market value.
However, under Article 65 of Limitation Act, the limitation
for filing such suit is 12 years from the date of cause of
action. In the instant case, the plaintiff has specifically
pleaded that the instant suit has been filed as an
ordinary suit for recovery of possession, being presented
within a period of 12 years from the date of cause of
action, when the defendant has taken the forcible
possession of the suit property in May, 1998, as is
asserted in the plaint. Para 7, Para 13 of the plaint,
where the cause of action has been explained in
conjunction with Para 16, where the court fee has been
paid on the basis of market value of the suit property.
The defendant has neither argued nor led any evidence
to the contrary that being submitted by the plaintiff at the
time of oral submissions on the aforesaid issues. Thus,
the defendant failed in discharging onus put to him by
the Hon'ble Court while framing the aforesaid issue.
FINDINGS AND CONCLUSIONS OF THE COURT
The present suit has not been filed by the plaintiff under
Section 6 of the Specific Relief Act but under Section 5 of the
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Specific Relief Act. Section 5 of the Specific Relief Act relates to
filing of the possession suit in accordance with the Code of Civil
Procedure. The plaintiff has invoked Article65 of the Schedule
appended to the Limitation Act, 1963. In terms of Article64 of the
Schedule appended to the Limitation Act, 1963, the plaintiff is
required to prove that he has a better right than that of the
defendant in the suit property and in terms of Aricle65 of the
Schedule appended to the Limitation Act, 1963, the plaintiff is
required to prove qua the third party that he/she is the owner/ co
owner of the property. It is the prerogative of the plaintiff to adopt a
summary procedure under Section6 of the Specific Relief Act or the
procedure, as enunciated in the CPC to prove his ownership/co
ownership in the suit property. Section6 of the Specific Relief Act
has to be invoked within a period of six months and the said
Section nowhere bars the litigant to invoke the provisions of
Articles64 or 65 of the Schedule appended to the Limitation Act,
1963. Section6(4) of the Specific Relief Act clearly provides that
even after dismissal of the summary suit under Section 6(1) of the
Specific Relief Act, still the litigant can maintain the suit on the
basis of the title. By no stretch of imagination, it can be held that
the suit is barred under Section6 of the Specific Relief Act.
Accordingly, in view of discussions made hereinabove, issue no.8 is
decided in favour of the plaintiff and against the defendant no.1.
ISSUES NO. 1 TO 7
(1) Whether the plaintiff is the owner of the suit property? OPP
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(2) Whether the plaintiff is entitled to decree for a sum of
Rs.1,80,000/ in favour of the plaintiff and against the
defendant no.1 for wrongful use and occupation charges till
July 2008? OPP
(3) Whether the plaintiff is entitled to pendentelite and future
damages for wrongful use and occupation charges at the
rate of Rs.5000/ p.m.? OPP
(4) Whether the plaintiff is entitled to interest on the aforesaid
amount? OPP
(5) Whether the suit is barred by time? OPD
(6) Whether the defendant has become owner of the suit
property by way of adverse possession? OPP
(7) Whether the suit is bad for non joinder and mis joinder of
parties? OPD
The aforesaid issues no.1 to 7 are interrelated and
interconnected with each other. Moreover, the discussion on the
aforesaid issues may have overlapping discussion of the pleadings,
arguments and evidence led by the parties. Accordingly, they are
dealt with and decided together.
ON THE QUESTION WHETHER THE SUIT PROPERTY FALLS
UNDER THE COMMON AREA OF THE PROPERTY BEARING NO.
10A AND 12A, UNDER HILL LANE, CIVIL LINES, DELHI
110054.
Ld. Counsel for the defendant has strenuously argued that
the plaintiff has not been able to prove that the suit property falls
under the common area for the occupants of property no. 10A and
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12A, Under Hill Lane, Civil Lines, Delhi110054. The Ld. Counsel
for the defendant has argued that the suit property falls under
property no.10 Under Hill Lane, Civil Lines, Delhi110054. In order
to buttress the arguments, the Ld. Counsel for the defendant has
placed heavy reliance on the crossexamination of the plaintiff i.e.
PW1 and nonproduction of the documents i.e. which were part
and parcel of Exhibit PW1/2 and Exhibit PW1/3. The Ld. Counsel
for the defendant has submitted that defendant has demolished the
case of the plaintiff during crossexamination of PW1. The Ld.
Counsel for the defendant further argued that the plaintiff has not
been able to prove from the materials placed on record that the suit
property falls in the common area of property bearing no. 10A and
12A, Under Hill Lane, Civil Lines, Delhi110054.
Per contra, Ld. Counsel for the plaintiff submits that issue
whether the suit property falls under the common area of property
bearing no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi
110054, was framed in the earlier suit, has been put in rest in the
earlier proceedings between the parties.
FINDINGS AND CONCLUSIONS OF THE COURT
There is no dispute between the parties that the plaintiff
alongwith Sh. Ishwar Dass Seth & Ors. has filed the suit for
permanent injunction against the defendant bearing Suit No. 79/03
(Old No. 1416/98) on 16.07.1998, which was subsequently
renumbered as CS No.369/2012. The perusal of record i.e. certified
copy of the Judgment reveals that the said suit was disposed of vide
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judgment dated 17.11.2012 by the then Ld. ADJ06 (West), Tis
Hazari Courts, Delhi. The perusal of issues no.1 & 4 in the said suit
reveals that the specific issue was framed - whether the suit
property is enjoyed in common by owners and occupants of
property no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi
110054. The findings of issues no. 1 & 4 decided in the said suit
are reproduced as under:
"1) Whether the suit property is enjoyed in common by
owners and occupants of property no. 10A and 12A? OPP
AND
4) Whether the court yard half portion falls in property
no. 10A where servant quarter exists alongwith 3
lavatories and other half portion falls in property no. 14
now known as property no. 10 where defendants are in
possession of a room and lavatory, if so, its effect?
11. These issues are taken up together as they require
common discussion. The onus of proving issue no.1 was
on the plaintiffs. Although the onus of proving issue no.4
has not been placed on either of the parties but keeping
in view the nature of the issue, it is apparent that the
same has been framed on the basis of averments
mentioned in the written statement filed by the
defendant wherein he has claimed in para 5 of the reply
on merits that half of the courtyard's portion falls in
property No. 10A and the other half falls in property
No.14, now known as property No. 10 wherein the
defendant is in the possession of a room and a latrine.
Defendant also denied that the suit property was in
common use of owners and occupiers of property no. 10A
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& 12A. Hence, the onus of proving this fact lies on the
defendant.
12. The plaintiffs have examined PWS Smt. Madhu
Rohtagi who has filed her examinationinchief by way of
her affidavit Ex.PW5/A and she has testified that the
suit property i.e. that the common passage terminating in
an open Courtyard is under common use and enjoyment
of residents/ occupants of properties No.10A & 12A,
Underhill Lane, Delhi. She also proved the site plan of the
suit property as Ex.PW5/3. She also testified that earlier
the properties bearing No.10A & 12A belong to the great
grandfather of plaintiffs no.1 & 2 and by virtue of the
partition deed, the property was partitioned and the suit
property was left in common for use and enjoyment by
the owners and occupants of the properties No.10A &
12A.
13. The plaintiffs have also examined PW4 Sh. Sunil
Kumar, UDC from the Office of SubRegistrarI who has
proved the certified copies of Sale Deed as Ex.PW4/1 &
Ex.PW4/2 dated 06.07.1987 and 08.01.1990
respectively. This witness has also proved the certified
copies of the site plan registered with the Office of Sub
Registrar Ex.PW4/3 & Ex.PW4/4 as respectively. There
is no rebuttal to the testimony of PW5 nor she has been
crossexamined at all. Hence, the testimony of PW5
coupled with the testimony of PW5 clearly establishes
the case of the plaintiffs that suit property as shown in
the site plan Ex.PW5/3 is enjoyed in common by the
owners and occupants of property No.10A & 12A.
14. The defendant, on the other hand, has not examined
any witness nor has proved any documentary evidence
to substantiate his claim that the suit property is not in
common use of the owners and occupants of property
No.10A & 12A. He has also not placed on record any
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documentary evidence which could confirm that half
portion of the courtyard falls in property no. 10A and the
other half falls in property no.10 where the defendant is
in possession of a room and a latrine. Thus, the
defendant has miserably failed to prove his claim. The
issues are accordingly decided in favour of the plaintiffs
and against the defendant."
The bare perusal of the aforesaid findings reveals that the
question - whether the suit property falls in the common area of
property no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi
110054 was put in rest by the said judgment dated 17.11.2012
between the occupants of common area and defendant no.1.
The defendant no.1 had himself taken preliminary objections
in the Written Statement that the suit of the plaintiff is liable to be
dismissed and/or stayed in view of Section10 of CPC. It is also
submitted by defendant no.1 in the Written Statement that issues
directly and substantially involved in the present matter are the
same, which are being adjudicated in the previously instituted suit.
The present suit has not been stayed but the findings on the issues
that the suit property falls under the common area of property
bearing no. 10A and 12A, Under Hill Road, Civil Lines, Delhi
110054, has been put in rest by the said judgment. The said
judgment has not been challenged by defendant no.1 at any point
of time. The judgment was passed in the year 2012 and eight years
have already been elapsed. The defendant cannot be allowed to re
agitate the said issue/ question as the said question has been
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settled between the occupants, who are having common right of
usage and defendant No.1. Moreover, the perusal of cross
examination of PW1 or the documents, as relied upon by plaintiff,
nowhere disseminates that defendant no.1 was able to demolish the
case of the plaintiff on this question. Furthermore, the defendant
no.1 has also failed to produce any documentary evidence to show
that Late Badri Prasad Seth was the owner of suit property or the
suit property falls under Property No.10, Under Hill Lane, Civil
Lines, Delhi54. The defendant no.1 had also failed to show that he
was allowed by Badri Prasad Seth to reside in the suit property or
gifted the suit property.
In view of the aforesaid discussions, the argument of Ld.
Counsel for the defendant no.1 that the suit property does not fall
in the common area of property bearing no. 10A and 12A, Under
Hill Lane, Civil Lines, Delhi110054, sans merit and the same is
hereby rejected.
ON THE QUESTION OF ORDER 7 RULE 3 CPC I.E.
IDENTIFICATION OF SUIT PROPERTY
The Ld. Counsel for defendant no.1 has relied upon Order 7
Rule 3 CPC and by relying upon said provision the Ld. Counsel for
defendant no.1 submits that Site Plan Exhibit PW1/1, as relied
upon by the plaintiff, is not sufficient to identify the suit property. It
is further argued that in the Site Plan, even the dimensions of the
suit property are not mentioned. The Ld. Counsel for defendant
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no.1 submits that suit of the plaintiff is liable to dismissed on this
ground alone.
FINDINGS AND CONCLUSIONS OF THE COURT
In order to appreciate the arguments, it apposite to reproduce
the provision of Order 7 Rule 3 CPC:
"3. Where the subjectmatter of the suit is
immovable property.--Where the subjectmatter of the
suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in
case such property can be identified by boundaries or
numbers in a record of settlement or survey, the plaint
shall specify such boundaries or numbers."
The perusal of the Written Statement reveals that defendant
no.1 has nowhere taken the objection that Plaint and Site Plan, as
relied and filed by the plaintiff, do not sufficiently identify the
property. As per the said provision, the first requirement is that the
Plaint shall contain a description of the property sufficient to
identify it. The question arises that whether the plaint describes
sufficient description and the answer is in affirmative. Para no.1 of
the plaint clearly reveals that common area/passage terminates in
the open court yard between properties no.10A and 12A, Under
Hill Lane, Civil Lines, Delhi. The Site Plan was filed as Annexure A
and which was later on exhibited as Ex.PW1/1. The defendant
no.1 has raised the issue that the suit property does not fall under
common area of property no. 10A and 12A, Under Hill Lane, Civil
Lines, Delhi110054, however, the said question was negated
hereinabove. Para no.2 of the plaint reveals that in May, 1998, the
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defendant no.1 trespassed into a portion of the common area co
owned by the plaintiff and defendant no.2. Thus, as per plaint, the
suit property falls in some portion of the common area/passage of
property bearing No.10A and 12A. Para no.5 of the plaint further
reveals that taking into advantage of the two conflicting Orders, the
defendant no.1 made a temporary structure in the area of 10 x 10
ft. and put a Tarpaulin as a temporary roof. Para no. 6 of the plaint
further reveals that defendant no.1 further extended his trespass
and he is in wrongful possession of an area of about 10 X 20 ft.
measured from the boundary wall of the adjoining apartment
(Municipal no.14) as well as one lavatory measuring about 5 X 5 ft.
and in this manner, defendant no.1 is in wrongful possession of
about 225 sq. ft. or 25 sq. yds. The Site Plan Exhibit PW1/1
cannot be looked in isolation i.e. without the averments made in the
plaint, as the requirement of Order 7 Rule 3 CPC is that the plaint
shall contain a description of the property sufficient to identify it.
Therefore, the plaint clearly reveals not only the identification of the
suit property but also the area of the suit property. The Site Plan
Exhibit PW1/1 clearly described the suit property in red colour.
The suit property is on the Corner and the same is sufficiently
described with East, West, North and South in the Site Plan Exhibit
PW1/1. On the western side and southern side, others' property
has been shown and as per the plaint the others' property is
boundary wall of the adjoining apartment. The Site Plan clearly
reveals the word "Lav" and the same is described for Lavatory,
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which is outlined with red colour. The size of the Lavatory in the
plaint has been shown as about 5 X 5 ft. The "C" portion is room,
which has been shown in red colour and as per the plaint, the same
is about 10 X 20 ft. measured from the boundary wall of the
adjoining apartment (Municipal No.14). Accordingly, the plaintiff
has provided the sufficient details in the plaint as well in the Site
Plan (Exhibit PW1/1) to identify the suit property.
The argument of Ld. Counsel for defendant no.1 that there is
violation of Order 7 Rule 3 CPC or suit of the plaintiff is liable to
dismissed, on this ground alone, sans merit and the same is hereby
rejected.
ON THE QUESTION-WHETHER THE PLAINTIFF IS THE OWNER
OF PROPERTY BEARING NO. 10A, UNDER HILL ROAD, CIVIL
LINES, DELHI110054
The Ld. Counsel for defendant has strenuously argued that
plaintiff has not produced any title document that he is the
owner/coowner of the property in question. The Ld. Counsel for
the defendant submits that the plaintiff has only produced a
Partition Deed (Exhibit PW1/2) and the Award, which was made
Rule of the Court (Exhibit PW1/3), in order to show that he is the
owner of property bearing no. 10A, Under Hill Road, Civil Lines,
Delhi110054. It is submitted by Ld. Counsel for the defendant
that perusal of the Partition Deed (Exhibit PW1/2) reveals that
there is no basis of acquiring the ownership of the property in
question. It is further argued that simplicitor Partition Deed and
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Award (which was made Rule of the Court), will not confer any
right, title and interest, whatsoever, in the plaintiff.
Per contra, Ld. Counsel for the plaintiff submits that the
plaintiff has proved the ownership of property bearing no. 10A,
Under Hill Lane, Civil Lines, Delhi110054 by means of documents
Ex.PW1/2 and Ex.PW1/3. Ex.PW1/2 is the Partition Deed dated
27.11.1958 and Ex.PW1/3 is the Rule of Court dated 10.04.1973
in respect of the Award. The Ld. Counsel for the plaintiff has argued
as under:
Regarding flow of Title to the plaintiff, no challenge is
thrown to document exhibit PW1/2 as well as EX
PW1/3. The clause 2 of ExPW1/2 reveals that the
property shown in ScheduleC would fall in the joint title
of Jai Gopal Seth, Sat Narain Seth and the plaintiff. The
perusal of ScheduleC of the said document shows the 10
servant quarters with description of boundary that had
fallen in the share of aforesaid beneficiaries. Thereafter,
aforesaid three beneficiaries entered in an Arbitration
Agreement, which was finally culminated in Award
pursuant to Arbitration proceedings which had been
made Rule of Court by the Hon'ble High Court of Delhi on
10.04.1973. The aforesaid document was proved as EX
PW1/3. On the Internal page 5 of the said Award, the
share fallen in favour of the plaintiff has been described
at Serial No.3 which interalia shows that the BlockA in
the front portion and servant quarters with Garages, and
'common courtyard and land pertaining thereto of
Bungalow No. 10A Underhill Lane, Civil Lines, Delhi as
shown in red colour, measuring 1406 sq yds. and 51.50
sq.yds. (i.e. ½ of 103 sq. yds.) of common road, as shown
in blue colour as detailed in plan, showing the mode of
partition.'
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FINDINGS AND CONCLUSIONS OF THE COURT
The perusal of Written Statement reveals that under the
heading "brief facts", it has been admitted by the defendant that
property no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi
110054 are huge bungalows having number of servant quarters
and the said property was originally owned by Late Grandfather of
Badri Prasad, Ishwar Dass and the plaintiff. It is further averred
that the said properties were divided/ partitioned interse by the
LRs and the said LRs further divided the properties amongst
themselves and either resided therein or sold their shares. It is
further submitted by defendant no.1 that property no. 10, Under
Hill Lane, Civil Lines, Delhi110054 came to the share of Badri
Prasad, 12A, Under Hill Lane, Civil Lines, Delhi110054 came to
the share of Ishwar Dass Seth and 10A, Under Hill Lane, Civil
Lines, Delhi110054 came to the share of plaintiff. Thus, it is a
clear and candid admission on the part of defendant no.1 himself
that originally, the grandfather of plaintiff was the original owner of
the entire property, including the properties bearing no. 10, 10A
and 12A, Under Hill Lane, Civil Lines, Delhi110054. It is also in
the categorical and candid admission that property bearing no. 10
A, Under Hill Lane, Civil Lines, Delhi110054 falls to the share of
plaintiff. The plaintiff has sufficiently, by producing the cogent,
convincing and authentic documents in the nature of Partition
Deed (Ex.PW1/2) and Award (which was made Rule of Court
Ex.PW1/3), demonstrated that the property bearing no. 10A,
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Under Hill Lane, Civil Lines, Delhi110054 falls to the share of
plaintiff. When the defendant himself has admitted the ownership of
the plaintiff in property bearing no. 10A, Under Hill Road, Civil
Lines, Delhi110054, then where was the question of defendant to
challenge the ownership of the plaintiff qua the property bearing no.
10A, Under Hill Lane, Civil Lines, Delhi110054. The plaintiff got
the valid documents in his favour. Moreover, in the earlier litigation
instituted by Ishwar Dass Seth & Ors., the decree of permanent
injunction was passed against defendant No.1, his agents,
associates, etc. from raising any illegal and unauthorized
construction in the suit property, as shown in the Site Plan Ex.PW
5/3. In the said suit, it was categorically pleaded that Sh. Ishwar
Dass Seth, through his LRs, is the owner of property bearing no.
12A, Under Hill Lane, Civil Lines, Delhi110054. Sh. Govind
Narain is the owner and in occupation of the property bearing no.
10A, Under Hill Lane, Civil Lines, Delhi110054 and Sh. Dalip
Kumar is the owner of two residential flats on the ground floor and
first floor of plot bearing no. 12A/2, Under Hill Lane, Civil Lines,
Delhi110054. After taking into consideration the relevant
pleadings, the then Ld. ADJ has passed the part decree of
injunction against the defendant.
The plaintiff has been able to prove on record that he is the
owner of property bearing no. 10A, Under Hill Lane, Civil Lines,
Delhi110054, which is otherwise also not disputed by defendant
no.1 in his Written Statement. Accordingly, the argument of Ld.
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Counsel for the defendant no.1 that plaintiff has not been able to
prove that he is the owner of property bearing no. 10A, Under Hill
Lane, Civil Lines, Delhi110054, sans merit and is hereby rejected.
ON THE QUESTION OF ADVERSE POSSESSION
The star argument of Ld. Counsel for the defendant is that
defendant is in possession of the suit property since 1982. The suit
property has been given to him by Sh. Badri Prasad Seth in the
year 1982 and Shri Badri Prasad Seth had orally gifted the said
property to him. It is further argued that defendant no.1 is in
exclusive possession of the suit property and by various possessory
documents, he is in uninterrupted possession of the suit property
and submitted that defendant no.1 became the owner by way of
adverse possession/prescription not only against the Late Shri
Badri Prasad but also against the plaintiff and other owners.
Ld. Counsel for the plaintiff has strenuously and with forensic
tenacity has argued as under:
(a) The Adverse Possession means hostile possession,
which is expressly or impliedly in denial of the title of
the true owner. It is well settled principle that the
party claiming adverse possession must prove that his
possession is "nec vi, nec clam, nec precario" i.e. the
possession claimed to be adverse to the title of the
owner was peaceful, open and continuous. In the case
of "KARNATAKA BOARD OF WAKF VS. GOVT. OF
INDIA", reported at 2004 (1) SCC 779, their Lordships
observed that a person who claims adverse
possession should show that (a) on what date he came
in possession, (b) what was the nature of possession
(c) whether the factum of possession was known to the
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other party, (d) how long his possession has continued
and (e) his possession was open and undisturbed.
This was observed by their Lordships that a person
pleading Adverse Possession has no equities in his
favour since he is trying to defeat the owner of true
owner. It is for him to plead and establish his adverse
possession.
(b) In another judgment before their Lordships at
Karnataka High Court titled, "SHIVAPPA SHETTY AND
ORS. VS. B.A. SRIKANTA SHETTY AND ORS." reported
at AIR 2007 (Kant.)19, their Lordships observed that in
absence of meeting out the ingredients of Adverse
Possession in pleadings, any length of Permissive
possession cannot be treated as Adverse Possession.
The person who contends that he is in Adverse
Possession should admit the ownership of true owner.
(c) With the aforesaid observations made by their
Lordships, the perusal of the pleadings, as are set out
in the defense led before the Court by the defendant,
the defendant has invariably claimed in the different
portions of his Written statement that the defendant
was permitted by Sh. Badri Prasad Seth to occupy and
retain the possession of the suit property, that he
asserts to have been in possession of, since 1982.
Para 1 of the Brief facts as are narrated by the
Defendant where the defendant pleads of leave of
occupancy given by Sh. Badri Prasad Seth to the
defendant and his brother. It is pleaded as "The
defendant herein along with his brother Sh. Devender
Singh were living in back portion i.e. Servant quarter
since about 1982 and they occupied this portion of the
premises from Seth Badri Prasad, who was owner of
this portion." The aforesaid averments are repeated in
Para 1 of Reply on Merits of the said WS.
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(d) The perusal of the said portion of the pleadings
indicates that the defendants asserts being in
possession of the suit property as its permissive
occupants by virtue of Leave/License granted by Badri
Prasad Seth. In further pleadings, Para 12, of the
Reply on Merits, the defendant states categorically
that the plaintiff is not entitled to claim possession, as
he is not the owner of suit premises and was never in
possession of the same at any point of time. In para 13
again, the defendant maintains his mode of denial to
accept the plaintiff as owner of the suit property.
(e) Further, the pleading of Adverse Possession surfaced
at the first stage in Para 7 of the Reply on Merits,
which narrates as: "Defendant is in possession of the
said premises since 1982 and has become owner
thereof by way of adverse possession not only against
original owner i.e. Late Sh. Badri Prasad but also
against Naval Kishore Aggarwal and Deepak
Aggarwal and other owners of the property, if any. It
is submitted that the plaintiff herein and the
defendant no.2 are not the owners of the suit property,
which they are claiming to be owners thereof." The
aforesaid pleadings are further repeated in Para 15 of
the Reply on Merits of WS.
(f) The defendant admitted having possession of the suit
premises as a Permissive occupant, inducted by Sh.
Badri Prasad. There is no pleading in the entire WS,
how the defendant claims to be in hostility at any
point of time subsequent to their permissive
possession of the suit property.
(g) Assuming it to be correct position of fact, the same
would not qualify the Primary test to be passed to
demonstrate that the possession at the time of its
inception or at any subsequent stage was hostile and
Suit No. 64/2020 Page 39 of 65
Govind Narain V. Vijender Singh @ Munna & Anr.
against the desire of the true owner. In absence of
pleadings of hostile possession, the defendant failed
in making out the first ingredient to be pleaded in
pleadings and established in course of trial before the
Hon'ble Court.
(h) The aforesaid facts pleaded in the WS further fails to
meet out the parameter envisaged in 'Karnataka
Board Wakf Case' specifically pleading the exact date
when the possession of the defendant had become
adverse/ hostile to the true owner of the suit property.
(i) The aforesaid pleadings also fall short to qualify the
test laid by their Lordships in 'Shivappa Shetty & Ors.
as well as that in Karnataka Board Wakf Case' which
envisages that the adverse possession can be claimed
only against the true owner of the suit property thus, it
is incumbent upon the person claiming the adverse
possession should admit the title of the person
claiming possession from him. The defendant
maintained the aforesaid position during the course of
trial in his cross examination as well as cross
examining the plaintiff in the suit. In the instant case,
having specific denial of title of the plaintiff and that of
the defendant no.2 in the WS of the defendant, the
defendant cannot maintain his claim of adverse
possession against the plaintiff. The aforesaid position
of law was also propounded by their Lordships in "T.
ANjanappa &Ors. Vs. Somalingappa and Ors."
reported in 2006 (65) ALR 151. This position also
came to test before their Lordships in Delhi High Court
in case titled as "Sh. Shahabuddin Vs. State of U.P. &
Ors.", wherein their lordships made certain
observations which have been reproduced by the
Hon'ble Delhi High Court in another case titled
"Hansraj Vs. Jagminder Singh &Ors." , reported at
2017 (8) AD Del.483, in its para 26. Their Lordships
Suit No. 64/2020 Page 40 of 65
Govind Narain V. Vijender Singh @ Munna & Anr.
reproduced Para 24, 26, 28, 29, 30 and 3 of the earlier
judgment passed by their Lordships in Shahabuddin's
case, adding force to the relevance of pleading and
posturing of the person claiming adverse possession in
the course of trial.
(j) It is admitted position on record that though the
defendant has set up a defense of Adverse possession
but that defense is admitted claimed against Badri
Prasad Seth pleading him to be the true owner of the
suit property and failing to meet other test to qualify
his claim for adverse possession, the defendant has
fallen short to discharge onus put to him by the
Hon'ble Court while framing of the said issue.
(k) Assuming the fact that the defendant could establish
his possession of the suit property since 1982, that at
the best establishes his longevity of stay but does not
turn it to be hostile or adverse possession as is
observed by their Lordships in Shahabuddin's case.
The reference may be made to the observations made
in Para 26 of the judgment.
(l) The defense of the defendant asserting his occupancy
in the suit premises since 1982 was challenged by the
plaintiff not only in pleadings but also in course of
trial, claiming that the defendant tresspassed the suit
property and started raising the unauthorized
construction on and after MAY, 1998. To establish the
aforesaid fact the plaintiff has not only pleaded the
aforesaid fact, established by production of FIR,
proved through PW2 , who had been IO, conducting
investigation in the said FIR but his aforesaid
allegation is also substantiated by the witness
summoned by the aforesaid defendant, in support of
his defense examined as DW3, who has produced
and proved before the Court the electricity bill and
Suit No. 64/2020 Page 41 of 65
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record pertaining to sanction and installation of
electricity connection which shows that the electricity
connection was energized in September 1998
whereas, the site inspection for sanction was
conducted in August 1998. Had the defendant been in
possession of the suit property since 1982, the
aforesaid record of electricity connection would have
been since 1982 but not showing its installation and
energisation in the year 1998.
(m) In addition to the Electricity bill, the defendant also
summoned another witness from DJB to assert and
establish his claim regarding occupancy of the suit
premises since 1982. Unfortunately, the aforesaid
witness even could not rescue the defendant as the
record of water connection summoned and produced
before the Court were not in respect of the connection
installed on the suit property, which is common area of
property bearing no. 10A and 12 A of Underhill Lane,
Civil Lines, Delhi but was in respect of some
connection installed on property bearing no. 10,
Underhill Road, Civil Lines, Delhi.
(n) Another witness examined to establish his possession
of the suit property is from the Election office, who had
brought the election record comprising Electoral Roll
2018 showing the plaintiff to be in possession of the
suit property in the Electoral Roll prepared for 2018
Assembly Election. Had the defendant been in
possession of the suit property, there was no occasion
for the plaintiff to institute the suit claiming recovery of
possession. Even for the defense of the defendant, it is
not possession but hostile possession is to be
established. The Electoral record of 2018 would not
turn even the possession of the defendant of the suit
property, even if it is hostile, into an Adverse
Possession, as is being asserted in the defense.
Suit No. 64/2020 Page 42 of 65
Govind Narain V. Vijender Singh @ Munna & Anr.
FINDINGS AND CONCLUSIONS OF THE COURT
I have also profit to refer Paras no.15 to 21 of Hon'ble
Supreme Court of India in the case of Bangalore Development
Authority Versus N. Jayamma decided on MARCH 10, 2016 in
CIVIL APPEAL NO. 2238 OF 2016:
"15. Coming then to the question whether the plaintiffs
respondents could claim adverse possession, we need to
hardly mention the well known and oft quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when possession is peaceful, open, continuous and hostile. The essentials of adverse possession were succinctly summedup by this Court in Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 in the following words:
"11.In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It Suit No. 64/2020 Page 43 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v.
State of Karnataka (1997) 7 SCC 567).
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128)."
"16. Reference may also be made to the decision of this Court in Saroop Singh v. Banto (2005) 8 SCC 330, where this Court emphasised the importance of animus possidendi and observed:Suit No. 64/2020 Page 44 of 65
Govind Narain V. Vijender Singh @ Munna & Anr.
"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376).
30. "Animus possidendi" is one of the ingredients of adverse possession. Unless the person possessing the land has the requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd.
Ali v. Jagadish Kalita (2004) 1 SCC 371, SCC para 21.)"
"17. Also noteworthy is the decision of this Court in Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639, where this Court held that claim of title to the property and adverse possession are in terms contradictory. This Court observed:
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his Suit No. 64/2020 Page 45 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
"18. To the same effect is the decision of this Court in Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543, where this Court elaborated the significance of a claim to title viz.aviz. the claim to adverse possession over the same property. The Court said:
"15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all."
"19. After taking note of the principle of law relating to adverse possession in the aforesaid manner, this Court Suit No. 64/2020 Page 46 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
commented about the erroneous approach of the High Court in the following manner:
"19. The Courts below have not seen the plaintiff respondent's claim from the above perspectives. The High Court has, in particular, remained oblivious of the principle enunciated in the decisions to which we have referred herein above. All that the High Court has found in favour of the plaintiffs is that their possession is established. That, however, does not conclude the controversy. The question is not just whether the plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the appellantBDA. The fact that the plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorized occupation of property that stood vested in the BDA."
"20. In addition to the discussion contained in M. Venkatesh case noted above, we may also add what was held in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. 15 (2007) 6 SCC 59:Suit No. 64/2020 Page 47 of 65
Govind Narain V. Vijender Singh @ Munna & Anr.
"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock;
Monnot v. Murphy; and City of Rock Springs v. Sturm)."
"21. In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors. 16 (2013) 6 ADJ 119, the Allahabad High Court has observed as under:
"21. The principle of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation. The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in the East India Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies) 43.
xx xx xx "23. The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an 'acquisitive prescription'. A Suit No. 64/2020 Page 48 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
prescription by which a right is extinguished is called 'extinctive prescription'. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time."
(Portions bolded in order to highlight) I have also profit to refer paras no.20 to 23 of the Judgment passed by the Hon'ble Supreme Court in CIVIL APPEAL No.83 OF 2008 in case titled as Dagadabai(Dead) by L.Rs. VERSUS Abbas @ Gulab decided on April 18, 2017: "20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".
"21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims Suit No. 64/2020 Page 49 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants".
"22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it".
"23) In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by Suit No. 64/2020 Page 50 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff."
(Portions bolded in order to highlight) It was incumbent upon defendant no.1, to, first of all, prove that Late Shri Badri Prasad Seth was the owner of the suit property. The defendant no.1 has failed to prove that Late Shri Badri Prasad Seth was the owner/coowner of the suit property. The defendant no.1 has also failed to produce any documentary evidence to show that Late Badri Prasad Seth was the owner of suit property. The oral gift is not permissible either under Sections122 & 123 of Transfer of Property Act, 1882 or under Section25 of the Indian Contract Act, 1872. The gift of the immovable property can only be done in accordance with the provisions of Sections122 & 123 of the Transfer of Property Act, 1882 and in terms of Section 25 of the Indian Contract Act, 1872.
Moreover, while deciding issues no. 1 and 4 in the suit titled as Ishwar Dass Seth & Ors. Vs. Vijender Singh, it has been categorically held that the suit property falls under no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi110054. The defendant no.1 has also raised the plea in the earlier suit that the suit property falls under property No.10, Under Line Lane, Civil Lines, Delhi54, however, the defendant No.1 has failed to prove the same in the earlier suit also. The findings qua issues no. 1 and 4, which Suit No. 64/2020 Page 51 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
were returned by the then Ld. ADJ06 (West), Tis Hazari Courts, Delhi, are incorporated hereinabove. The bare perusal of the said findings reveals that the suit property falls under the common area of property bearing no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi110054. The entire contention of the defendant that the suit property is part & parcel of property bearing no. 10, Under Hill Lane, Civil Lines, Delhi110054, was already put at rest by the said Court and by this Court also. The defendant no.1 himself has admitted that Late Badri Prasad Seth was the owner of property bearing no. 10, Under Hill Lane, Civil Lines, Delhi110054 and not property no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi 110054. In view of that matter, Sh. Badri Prasad Seth was not the owner of property bearing no. 10A and 12A, Under Hill Lane, Civil Lines, Delhi110054 and therefore, the story/contention, as put forward by defendant no.1, falls flat on the face of it.
Furthermore, it was incumbent upon the defendant no.1, in terms of the judgment of Hon'ble Apex Court, to, first of all, admit the ownership of the plaintiff, thereafter, the defendant no.1 can agitate that he is owner of the suit property by way of prescription/adverse possession. The defendant no.1, in the entire pleadings, has not admitted that the suit property falls under property no. 10A, Under Hill Road, Civil Lines, Delhi110054, therefore, defendant no.1 has not admitted that plaintiff is the owner/coowner of the suit property. The consistent plea of defendant no.1 was that suit property falls under property No.10 Suit No. 64/2020 Page 52 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
and Late Badri Prasad Seth was the owner of the suit property and he had orally gifted/permitted defendant no.1 to reside in the suit property. Even the most important and primary requirement of adverse possession i.e. the admission of defendant no.1 that plaintiff is owner/coowner of the suit property, was not fullfilled by defendant no.1.
The Hon'ble Supreme Court has categorically held that claiming of ownership in the property and adverse possession are contradictory to each other. It is admitted case of defendant No.1 in the written statement that before the Ld. LC, defendant No.1 had claimed his ownership in the suit property. The defendant no.1 claims his ownership in the suit property by oral gift (although, the same is not permissible in the eyes of law) from Late Shri Badri Prasad Seth and therefore, defendant no.1 cannot claim adverse possession. The defendant No.1 has categorically and specifically denied the ownership of the plaintiff in the suit property and on the contrary, the defendant No.1 has claimed his own independent ownership rights in the suit property. When defendant no.1 is claiming independent ownership of the suit property, then the question of adverse possession does not arise as no person can be allowed to claim the adverse possession against himself/herself. This would be totally against the fundamental principles of the adverse possession.
The second plea of defendant no.1 is that he was permitted by Late Shri Badri Prasad Seth to construct and reside in the suit Suit No. 64/2020 Page 53 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
property. If defendant no.1 alleged that he was permissive user and that too of Late Shri Badri Prasad Seth, then also, in terms of the Judgment of Hon'ble Apex Court, he cannot claim the plea of adverse possession. It is apposite to mention here the dictums of Hon'ble Apex Court reported as "A.Shanmugam Vs. Ariya Kshatriya Rajakula Vasathu Mudalaya Nandhavana Paripalanai Sangam AIR 2012 SC 2010" & "Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack De Sequeria AIR 2012 SC 1727". The Hon'ble Three Judge Bench Judgment of "Maria Margarida Sequeria Fernandes" of the Hon'ble Apex Court has held to the following effect in para no. 101: "101. Principles of law which emerge in this case are crystallized as under:
1. No one acquires title to the property if he or she was allowed to stay in the premises gratu itously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never ac quire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
Suit No. 64/2020 Page 54 of 65Govind Narain V. Vijender Singh @ Munna & Anr.
4. The protection of the Court can only be granted or extended to the person who has valid, subsist ing rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He ac quires no right or interest whatsoever for him self in such property irrespective of his long stay or possession."
(Portions bolded in order to highlight) Even if, it is assumed for the sake of arguments that defendant no.1 was in possession of the suit premises since 1982, however, which defendant No.1 has failed to prove as demonstrated by the Ld. Counsel for Plaintiff during the course of arguments, still, the basic plea in the present suit of defendant No.1 is of title versus title and location of the suit property. The defendant no.1 has failed to even plead and prove the fundamentals and basic requirements of adverse possession, as required under law.
I am completely and fully in agreement with arguments, as advanced by Ld. Counsel for plaintiff that defendant no.1 has failed to prove that he was in adverse possession of the suit property. In terms of Article65 of the Schedule appended to the Limitation Act, 1963, the time runs to begin only when the possession of defendant becomes adverse to the plaintiff and in this case, the defendant no.1 has utterly failed to prove that he was in adverse possession Suit No. 64/2020 Page 55 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
and accordingly, the suit filed by the plaintiff is well within the period of Limitation.
ON THE QUESTION OF POSSESSION It is argued by Ld. Counsel for plaintiff that the plaintiff sought the modification of the issues by moving an application under Order XIV Rule 5 read with Section 151 of CPC, interalia praying for the issue to be framed by the Court regarding Prayer of Possession, as was asserted in the Plaint. However, analyzing the issues framed on 09.10.2009 and considering issues no.1, 6 and 8, the Ld. predecessor of the Hon'ble Court observed vide Order passed on 07.04.2016 that no separate issue for the relief of possession is required being it inclusive in the aforesaid three issues.
The perusal of the Order dated 07.04.2016 further reveals that the Ld. Predecessor of this Court has observed that issue no.9 is "Relief" and by way of same, even relief of possession can be granted if the plaintiff is able to prove his case. This Court has already held that plaintiff is coowner of the suit property and the defendant has failed to plead and prove the plea of adverse possession. However, the question arises that it is admitted position that plaintiff has not built the construction/super structure on the suit property in question. The said construction/super structure was built by unauthorized occupant i.e. defendant no.1. The specific case of the plaintiff is that defendant no.1 has trespassed, encroached and constructed the suit property. Now, the question Suit No. 64/2020 Page 56 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
arises, what is required to be done to the super structure/construction on the suit property. The answer of the same lies in para no.32 of the Judgment of Hon'ble High Court passed in CS(OS) No.1200 titled as MRS. VANEETA KHANNA & ANR. Vs. MR. RAJIV GUPTA & ORS. decided on 01.10.2015 and the relevant portion of the said judgment is reproduced as under: "32. In view of the above discussion all the issues are decided in favour of the plaintiffs and against the defendants. Suit of the plaintiffs is decreed against the defendants for possession of the property bearing no. 8/289, Sunder Vihar, Paschim Vihar, New Delhi110087 admeasuring 267 sq yds. In case the defendants or any of them have raised any construction on the suit property above the second floor, then in case the defendants so wish then they can remove such construction without of course in any manner causing damage to the ground floor and the first floor of the suit property which construction was existing when the plaintiff no.1 purchased the rights in the suit property and when plaintiff no.1 was dispossessed from the suit property on 24.7.2004. The defendant nos. 3 to 6 may however state a monetary value of construction over the first floor of the suit property, i.e. second floor and above, and the plaintiff no. 1 at her sole option may agree to pay that value to the defendant nos. 3 to 6 whereby defendant nos. 3 to 6 can receive such value and leave the construction of second floor and above intact................."
The said observations were passed taking into consideration the provision of Section 51 of the Transfer of Property Act, which provides as under: Suit No. 64/2020 Page 57 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
"51. Improvements made by bona fide holders under defective titles. When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them."
In the present case also, the defendant no.1, who is in possession of the suit property, may state a monetary value of construction over the suit property and the plaintiff, at his sole option, may agree to pay the value to defendant no.1, whereby defendant no.1 can receive such value and leave the constructions intact. However, in the case, the plaintiff is not agreeable to the said value, then defendant no.1 may remove the construction/super structure on the suit property in question within three months of passing of this Judgment and take with him materials/debris of the construction and thereafter the plaintiff and other owners of property bearing no.10A and 12A, Under Hill Lane, Civil Lines, Suit No. 64/2020 Page 58 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
Delhi11054 may enjoy the suit property as the same is common to them. In case the plaintiff has not exercised his option to pay money and defendant no.1 had also not removed the construction within three months from this Judgment and decree, then the construction/superstructure shall be removed, after taking the possession of the suit property, at the cost and expense of defendant no.1. It is made clear that plaintiff and other owners of property bearing No.10A and 12A, Under Hill Lane, Civil Lines, Delhi11054 may enjoy the suit property as admittedly the same is common to them.
ON THE QUESTION OF NONJOINDER OF PARTIES The Ld. Counsel for defendant no.1 has argued that it is admitted position that as per the case of plaintiff, he is not alone the owner of the suit property and the plaintiff has not joined the occupants of property bearing no.10A and 12A, Under Hill Lane, Civil Lines, Delhi54, therefore, the suit of the plaintiff is liable to be dismissed on this ground alone.
FINDINGS AND CONCLUSIONS OF THE COURT There is no dispute between the parties that plaintiff along with Sh. Ishwar Dass Seth & Ors have filed the suit for permanent injunction against defendant No.1 bearing Suit No. 79/03 (Old No. 1416/98) on 16.07.1998, which was subsequently renumbered as CS No.369/2012. The perusal of record i.e. certified copy of the Judgment dated 17.11.2012 reveals that the same was disposed of by the then Ld. ADJ06 (West), Tis Hazari Courts, Delhi and part Suit No. 64/2020 Page 59 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
decree was passed against Shri Vijender Singh (defendant no.1 of the present suit). It is clearly recorded in the said suit that Shri Govind Narain (plaintiff of the present suit) has already filed the suit for possession against Shri Vijender Singh (defendant no.1 of the present suit). Shri Ranjeev Seth i.e. one of LRs of Shri Ishwar Dass Seth has also been made as party in the present suit as defendant no.2. He has chosen not to appear as it appears that he is supporting the version of plaintiff. The successorsininterest of Shri Ishwar Dass Seth and successorsininterest of Dalip Puri was in knowledge that Shri Govind Narain had filed the suit for possession against defendant no.1, but still they have not come forward to resist the claim of the plaintiff. Moreover, this Court has held the plaintiff is the coowner of the suit property and it is well settled law that even one coowner can maintain the suit for possession against the third party and defendant no.1, who has no right, title and interest in the suit property, cannot agitate and challenge the suit on this ground. Furthermore, as held hereinabove, after taking possession, the plaintiff and other owners of property bearing no.10A and 12A, Under Hill Lane, Civil Lines, Delhi11054, may enjoy the suit property, as admittedly the same is common to them.
In view of discussions, made hereinabove, the suit is not hit on account of nonjoinder of necessary parties. ON THE QUESTION OF MESNE PROFITS AND INTEREST THEREON Suit No. 64/2020 Page 60 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
The Ld. Counsel for the plaintiff has canvassed his arguments as under:
(a) Section 2(12) of CPC deals with Mesne Profits that provides mesne profits means those profits which a person in wrongful possession of such property actually received or might with ordinary diligence would have received therefrom, including interest on such profits. In the damages awarded under Contract Act, the plaintiff has to establish the loss suffered whereas in case of Mesne profits, it is to be shown what the defendant had earned or could have earned by holding unauthorized possession of the suit property. The plaintiff lends support to the aforesaid interpretation of law by relying upon the view taken by the Hon'ble Delhi High Court in the case titled as "HINDUSTAN MOTOR LTD. VS. SEVEN SEAS LEASING LTD.:, reported in RFA 792 OF 2018 and also that in "ORIENTAL INSURANCE COMPANY VS. DEVANSH REAL ESTATE PVT. LTD. reported in RFA 54 OF 2018, their Lordships took a view that the mesne profits could be assessed by the Court while doing guess work on facts unfolded in Course of trial before the Court.
(b) It is admitted position on record that the suit property is not less than admeasuring around 25 sq.yds., is at highly prestigious location, broadly occupied by socially and financially affluent people, which could have fetched substantial income by holding possession of even such small unit of land area.
FINDINGS AND CONCLUSIONS OF THE COURT:
The onus to prove this issue is upon the plaintiff. The plaintiff has also claimed pendentelite and future mesne profits/damages @ Suit No. 64/2020 Page 61 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
Rs.5,000/ per month. In Para no.11, the plaintiff has claimed damages @ Rs.5,000/ per month from August, 2005 to July, 2008. PW1 deposed on the same lines in his examinationinchief. The plaintiff has not examined any independent witness in this regard nor has given any basis of arriving at such figure nor did he give details of the nearby property fetching such rent, including the name of tenant and landlord. However, keeping in mind the fact that nowadays, jhuggis within the city of Delhi costs Rs.2,000/ to Rs.3,000/ per month and keeping in mind the fact that award of damages necessarily and inevitably involves certain amount of guess work because even similar portion almost at similar location will give different amount of rent, depending upon number of other market factors. Hence, in these circumstances, interest of justice would be served if mesne profits/damages of the suit property is assessed @ Rs.3,000/ per month. However, the plaintiff is not the absolute owner of the suit property but only coowner of the suit property, having right to common use the said portion alongwith owners of property bearing No.12A which includes defendant no.2. The defendant no.2 has not come forward to claim his share of rights, including mesne profits and similarly, the successorsin interest of Late Ishwar Dass Seth and Shri Dalip Puri has also not approached this Court. The suit property falls under the common area of property bearing no.10A and 12A of Under Hill Lane, Civil Lines, Delhi54 and basically the same is for use and occupation of owners of said property. Accordingly, considering the pleadings of Suit No. 64/2020 Page 62 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
earlier suit of permanent injunction filed by Ishwar Seth and Ors. Vs. Vijender Singh, the plaintiff, at best, would be entitled to 1/3 rd of the aforesaid mesne profits/damages and therefore, the plaintiff would be entitled to Rs.1,000/ per month from July, 2005 along with simple interest @ 6% per annum towards mesne profits/damages, till the recovery of the possession of suit property by plaintiff from defendant no.1, in terms of this Judgment.
Accordingly, in view of the detailed discussions made hereinabove, issues no.1 to 7 are decided in favour of the plaintiff and against defendant no.1 in the aforesaid terms. RELIEF:
From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(i) In terms of this Judgment, A decree of possession is passed in favour of the plaintiff and against defendant no.1 thereby directing defendant no.1 to handover the vacant, peaceful and physical possession of the suit property i.e. one room, shown as "C" portion in red colour in Ex. PW1/1 and as per the plaint, the same is about 10 X 20 ft. measured from the boundary wall of the adjoining apartment (Municipal No.14) and also Lavatory shown as "Lav" portion in red colour in Ex.PW1/1 and as per plaint, the same is about 5 X 5 ft. The said portions fall under the common area/passage terminates in an open courtyard between the properties no. 10A and 12 Suit No. 64/2020 Page 63 of 65 Govind Narain V. Vijender Singh @ Munna & Anr.
A, Under Hill Lane, Civil Lines, Delhi and more particularly delineated in the Site Plan Exhibit PW1/1. The defendant no.1 is granted three months' time for the same. However, defendant no.1, who is in possession of the said suit property, may state a monetary value of construction over the suit property and the plaintiff, at his sole option, may agree to pay the value to defendant no.1, whereby defendant no.1 can receive such value and leave the constructions intact. In case, the plaintiff is not agreeable to the said value, then defendant no.1 may remove the construction/super structure on the suit property in question within three months of passing of this Judgment and take with him materials/debris of the construction and thereafter, the plaintiff and other owners of property bearing no.10A and 12A, Under Hill Lane, Civil Lines, Delhi11054 may enjoy the suit property as admittedly the same is common to them. In case, the plaintiff has not exercised his option to pay money and defendant no.1 had also not removed the construction within three months from this Judgment and decree, then the construction/super structure shall be removed, after taking the possession of the suit property, at the cost and expense of defendant no.1. It is made clear that plaintiff and other owners of property bearing no.10A and 12A, Under Hill Lane, Civil Lines, Delhi11054 may enjoy the suit property as the same is common to them.
Suit No. 64/2020 Page 64 of 65Govind Narain V. Vijender Singh @ Munna & Anr.
(ii) A decree of recovery of damages/mesne profits is also passed in favour of the plaintiff and against defendant no.1 for unlawful and unauthorized use and occupation of the suit property @ Rs.1,000/ per month from July, 2005, alongwith simple interest @ 6% per annum towards mesne profits/dam ages, till the recovery of possession of suit property by the plaintiff from defendant no.1, in the aforesaid terms. The decree in respect of this relief will not be executed until and unless the plaintiff will pay the deficient court fee till the disposal of the suit.
(iii) The cost of the suit is also passed in favour of plaintiff and against defendant no.1.
Decreesheet be prepared in terms of this Judgment, File be consigned to Record Room after due compliance. Announced in the open Court on this 09th day of October, 2020 (ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 64/2020 Page 65 of 65