Delhi District Court
Sh. Satish Verma S/O Sh. Bhagwan Dass vs Sh. Dayanad S/O Sh. Man Singh on 22 May, 2014
IN THE COURT OF MS. PRABH DEEP KAUR
CIVIL JUDGE 05: (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
Suit No. 294/11
Unique ID No.
1. Sh. Satish Verma S/o Sh. Bhagwan Dass.
2. Sh. Yatish Verma S/o Sh. Bhagwan Dass,
Both R/o WZ98, Khampur,
New Delhi08.
3. Sh. Naveen Verma S/o Sh. Ram Swaroop,
R/o WZ43, Khampur,
New Delhi08.
4. Sh. Praveen S/o Sh. Rohtas Chand,
R/o WZ69, Khampur,
New Delhi08.
.............Plaintiff s
Versus
Sh. Dayanad S/o Sh. Man Singh,
R/o WZ66, Khasra No. 321,
Khampur, New Delhi08.
(Since deceased) Now represented by:
(i) Sh. Mahipal Singh S/o Dayanand.
(ii) Smt. Rajeshwari S/o Sh. Ram Niwas D/o Sh. Dayanand,
Both R/o WZ66, Khampur,
Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.1/29
New Delhi08.
(iii) Smt. Rameshwari W/o Sh. Ramanand D/o Sh. Dayanand,
R/o H66/17, Gamri Road,
Gali No. 5, Ghonda, Delhi.
(iv) Smt. Sarita Devi W/o Sh. Anil,
R/o 599, Julaha Basti,
Gatta Factory, Village Burari,
Delhi.
(Substituted vide order dated 25.02.2014).
.............Defendants
Date of filing : 23.08.2011
Date on which order has been reserved : 16.05.2014
Date of pronouncement of judgment : 22.05.2014
JUDGMENT
1. Plaintiff has filed the present suit for the following reliefs:
(a) A decree for ejectment in respect of the land measuring 200 Sq. Yards forming part of Khasra no. 321, Bearing MCD No. WZ66, Khampur, New Delhi08 more specifically shown red in the annexed plan may be passed in favour of the plaintiffs and against the defendants and the defendants may be called upon to remove the super structure existing on the said land and in case of failure of the defendants to remove the super Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.2/29 structure within the time stipulated by this court, a decree for possession of the super structure may be passed in favour of the plaintiff and against the defendants.
(b) To pass a decree of Rs. 60,480/ together with interest @ 15% per annum from the date of filing of the suit till realization in favour of the plaintiffs and against the defendants.
(c) Cost of the suit may be also awarded to the plaintiffs.
2. Plaintiffs Version: In the present suit, plaintiffs stated that the defendant was tenant of Sh. Chander Mal in respect of land measuring 200 sq. yds. Bearing Khasra No.321 forming part of property bearing Municipal No. WZ66, Khampur, New Delhi110008 at a monthly rental of Rs.30/ excluding other charges. The month of tenancy used to be reckoned from 1st day of each English Calendar month to the last of that month. Shri. Chander Mal died leaving behind a Will duly registered with the Sub Registrar as document No.1391 in Addl. Book No.III, Volume 182 at pages 164168 on 21.04.1980 and under the said Wil the plaintiffs became owner of the said land. The defendant has not piad rent for the last 30 years and as such the defendant was liable to pay rent legally recoverable for three years. The defendant was called upon to pay the rent vide notice dated 10.07.2011 and the defendant inspite of service of the notice failed to make Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.3/29 the payment of rent and as such the defendant is liable to pay legally recoverable rent for the last three years amounting to Rs.1080/. The tenancy of the defendant was for open land which is not protected under the provisions of DRC Act and as such the notice terminating the tenancy of the defendant dated 10.07.2011 was served upon the defendand and the defendant after the expiry of 15 days of receipt of the notice failed to deliver the possession of the land to the plaintiff and after the expiry of period of 15 days, the defendant became trespasser in the land in question. As such the plaintiff is entitled to decree for ejectment in respect of the land in dispute. The defendant is liable to pay damages/mesne profit for use and occupation w.e.f. 01.08.2011 after the expiry of 15 days from the receipt of the notice at the rate of Rs. One lacs per month, which the premises in dispute can fetch, if let out and as such the defendant is liable to pay Rs.59,400/ towards damages from 01.08.2011 till filing of the present suit, which the defendant has failed to pay inspite of repeated demand and requests and service of the notice dated 10.07.2011. Hence, the present suit.
3. Defendant's Version: In WS, defendant has denied all the claims of the plaintiffs on the following grounds:
(i) That The defendant is in adverse possession of premises bearing Municipal No.WZ66, situated Khampur, New Delhi110008 and Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.4/29 the said premises has been constructed over the plot out of Khasra No.316 of Khampur, New Delhi110008 and the defendant perfected his title by the remaining in adverse possession of for more than 12 years and is in continuous physical, uninterrupted possession of the suit property since 1959 and this fact of possession over the suit property was known to the plaintiff and in this way the defendant is in uninterrupted continuous physical possession of the property in question and thereby has perfected his claim to the suit property in question by adverse possession.
(ii) The The defendant is in continuous physical possession of the property in suit along with others situated out of Khasra No.316 of VillageKhampur, New Delhi whereas the plaintiff has been claiming the suit property situated in Khasra No.321 of VillageKhampur, New Delhi, hence the suit property is situated in different Khasra as has been mentioned in the suit of the plaintiff.
(iii) The answering defendant is in adverse physical possession of the suit property either it is 316 or 321.
(iv) The said suit being false is liable to be dismissed Under Order II Rule 14 R/w Section 14A CPC.
(v) The The site plan attached with the plaint is wrong and incorrect.
(vi) Since the relationship as landlord and tenant in between the parties to the suit is denied no question arise of starting tenancy from 1st Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.5/29 day of each English Calendar month and ends at last day of the same month.
(vii) The defendant is in adverse possession of premises bearing Municipal No.WZ66, situated Khampur, New Delhi110008 and the said premises has been constructed over the plot out of Khasra No.316 of Khampur, New Delhi110008. Whereas the plaintiff has been claiming the suit property situated out of Khasra No.321 of VillageKhampur, New Delhi. There is no relationship as landlord and tenant in between the parties to the suit.
(viii) Since the defendant was not a tenant under the tenancy of deceased Chander Mal, hence the plaintiff has no right to issue any notice to the defendant.
4. Replication: By way of replication, plaintiff has denied all the claims of the defendant stating that in fact, the defendant was tenant of the plot of land comprising in Khasra No.321 under Shri Chander Mal, predecesor of the plaintiff and the defendant is estopped from claiming the adverse possession against the rightful owner and particularly when the defendant is not accepting the plaintiffs to be owner of the suit property. The defendant admitted himself to be tenant of Shri Chander Mal in respect of property No.WZ66, Khampur, New Delhi08 and once the defendant has Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.6/29 admitted himself to be tenant of Shri Chander Mal, cannot claim adverse possession because "Once tenant, always a tenant". The present suit is a suit for ejectment of the tenant whose tenancy has been terminated, as such, the same is valued on one year's rent and the suit as such, has been correctly valued and proper court fee has been paid. The defendant who was tenant under Chander Mal in respect of the land raised construction on the said land himself and was bound to pay property tax as the premises was never let out to the defendant by Shri Chander Mal. The defendant cannot claim adverse possession against the plaintiff without admitting the plaintiff to be owner of the property in dispute. The suit property forms part of khasra No.321 and not 316. The defendant is not in adverse possession qua the plaintiff and cannot have the perfect title because the defendant was inducted by the predecessor of the plaintiff as tenant. Merely because the defendant is in possession since more than 12 years, the defendant has no claim of adverse possession being tenant against the rightful owner. It is not in dispute that the plaintiff knows the fact that the defendant is in possession of the suit premises, the defendant was inducted in the land of the suit property constructed by Shri Chander Mal as tenant. The defendant cannot have perfect title what to say of title by adverse possession because the defendant was inducted by Shri Chander Mohan as tenant.
Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.7/29
5. Issues: On the basis of pleadings and arguments of the parties, vide order dated 19.01.2012, the following issues have been framed: (I) Whether the defendant has become the owner of the suit property by way of adverse possession?OPD.
(II) Whether the suit of the plaintiff has not been properly valued for the purposes of court fee and jurisdiction?OPD. (III) Whether the plaintiff is guilty of concealment of material facts from this court?OPD.
(IV) Whether the plaintiff is entitled to ejectment and decree of possession as prayed for in the plaint?OPP.
(V) Whether the plaintiff is entitled to the recovery of Rs. 60,480/ along with pendent lite and future interest @ 15% per annum as prayed for in the plaint?OPP.
(VI) Any other relief.
6. Plaintiff's Evidence:
To prove his case, plaintiffs have examined Sh. Satish Verma (plaintiff No. 1) as PW1 and Sh. Ram Kishan as PW2 and plaintiffs have relied upon the following documents:
(i) Copy of the WILL is Mark A. Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.8/29
(ii) Carbon copy of legal notice is Ex. P1.
(iii) Postal Receipt is Ex. P2.
(iv) AD Card is Ex. P3.
(v) Site plan is Ex. P4.
(vi) Certified copy of statement given by the defendant on
18.01.1978 is Ex. P5.
(vii) Copy of WILL is Ex. PW2/1(OSR).
7. Defendant's Evidence:
On the other hand, in their defence, defendants have examined the following witnesses:_
(a) Sh. Mahender Kumar, UDC from Tata Powers, Inderpuri, New Delhi as DW1.
(b) Sh. Tirlochan Singh, LDC, Delhi Jal Board, Punjabi Bagh, Delhi as PW2.
(c) Sh. Jagdip Dahiya, UDC, Office of Chief Election Commission Office, Kashmere Gate, Delhi as DW3.
(d) Sh. Dayanand S/o Late Sh. Man Singh as DW4.
(e) Sh. Swatantra Kumar, LDC at Karol Bagh Zone, House Tax
Department, MCD, Delhi as DW5.
(f) Sh. Dharmanand, Patwari, from SDM Office, Patel Nagar,
Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.9/29
Rampura, New Delhi as DW6.
(g) Sh. Mahipal Singh S/o Sh. Dayanand as DW5 (to be read as
DW7).
(h) Sh. Balbir Singh, Record Keeper, Chief Election Office, Old
St. Stephans College, Kashmere Gate as DW7 (to be read as DW8).
(i) Sh. Surender Kumar, Record Keeper, DC West Office, Rampura, Delhi as DW8 (to be read as DW9).
8. Defendant has relied upon the following documents:
(i) Receipt of charges of installation which was deposited on 07.02.1989 is Ex. DW1/1.
(ii) Copy of application along with affidavit of Smt. Kusum Lata is Ex. DW2/1.
(iii) Report of ZE is Ex. DW2/2.
(iv) The sanction order is Ex. DW2/3.
(v) Affidavit is Ex. DW2/4.
(vi) Copy of order regarding destroyer of record after 1983 is Ex.
DW3/1.
(vii) The copy of ration card No. APL66160447 is DW4/(OSR).
(viii) The copy of Kakha issued by MCD dated 15.01.19769 is
Mark A.
Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.10/29
(ix) Copy of Assessment letter dated 23.07.1976 is Mark B.
(x) Receipts of house tax dated 28.01.1978, 29.07.1985,
25.03.1994, 30.10.2004, 04.10.2010 are Ex. DW4/4 to Ex. DW4/11.
(xi) Notice issued by MCD on 12.03.1994 is Ex. DW4/12.
(xii) Receipt of payment of milching test are Ex. DW1/13 to Ex. DW1/16.
(xiii) Copies of revenue record are Ex. DW4/17 to Ex. DW1/24.
(xiv) Water bills are Ex. DW4/27 to Ex. DW4/29.
(xv) Copy of Form K is Ex. DW5/1.
(xvi) Copy of notice under Section 126 of DMC Act is Ex. DW5/2.
(xvii) Acknowledgment slip for registrationcumdemand note is Ex.
DW5/1.
(xviii) Bills of MTNL dated 15.10.1996, 15.12.1996, 11.02.2008 are
Ex. DW5/2 to Ex. DW5/4.
(xix) Birth certificate of Sh. Ashish Kumar dated 09.10.1978 is Ex.
DW5/5.
(xx) Birth certificate dated 03.12.1980 is Ex. DW5/6.
(xxi) Letter from employment training from DTC dated 14.03.1977
is Ex. DW5/7.
(xxii) Acknowledgment from post office dated 11.04.1978 is Ex.
DW5/8.
Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.11/29
(xxiii) Recruitment dated 08.06.1978 is Ex. DW5/9.
(xxiv) Voter IDCard issued on 01.01.2008 is Ex. DW5/10.
(xxv) Ration Card issued on 10.09.2005 is Ex. DW5/11.
(xxvi) Copy of voter list pertaining to the years 1980, 1983, 1994 to
1998, 2008, 2011 and 2013 in respect of area Khampur, Purani Abadi, West Patel Nagar, New Delhi, is Ex. DW7/A (OSR) [colly, running into 18 pages].
(xxvii) Khasra girdawari pertaining to the year 1988 till 2005 and the copy of the same is Ex. DW8/A (OSR)[colly, running into 4 pages].
9. The final arguments have been concluded from both the sides on 08.05.2014.
10. My Issue Wise Findings: (A) For the sake of convenience, issue No. 4 and 5 are decided together.
Issue No. 4: Whether the plaintiff is entitled to ejectment and decree of possession as prayed for in the plaint?OPP. Issue No. 5: Whether the plaintiff is entitled to the recovery of Rs.
60,480/ along with pendent lite and future interest @ 15% per annum as prayed for in the plaint?OPP.
Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.12/29
(i) The onus to prove these issues is upon the plaintiffs. To prove the same, plaintiffs have examined Sh. Satish Verma (plaintiff No. 1) as PW1 and during examination in chief by way of affidavit, he has reasserted the facts mentioned in the plaint. He was duly cross examined and during cross examination, he has deposed that ".............I have filed the present suit in respect of open land measuring 200 SQ. Yards, out of khasra No. 321 forming part of property Municipal No. WZ66, Village Khampur.......I do not know about this as at that time I was a child and the premises was rented out by my grandfather.........I can not recall that when Chander Mal i.e my father has died.......I am managing the suit property at present. Vol. The suit premises in my name as joint owner. I have never ever collected the rent of the suit premises......I have never gone to collect the rent. Nor anyone else have gone. Vol. As the amount of rent is so minimum.......I do not have any written rent agreement in my possession. Vol. At that time the agreements were executed orally only. It is an ancestral property............I can not say anything regarding this the relations between plaintiff and defendant were friendly since 1959 as I was child at that time.........The defendant is paying house tax as PPO i.e present occupier of property.........It was a vacant plot. Now, it is fully constructed consisting four rooms, kitchen, bathroom, space and this house No. 66B. Vol. This plot is WZ66. The whole plot i.e WZ66 is about 450500/ Sq. Yards. It is correct that out of plot No. WZ66, the H. No. 66B is constructed in measuring 200 Sq. Yards. I do not know whether the said house is constructed in two or three times..........It is correct that the defendant has been living in the said house since 1959. It is correct that while installing electricity connection and telephone, the defendant is his legal heirs did not get any permission from the plaintiff........."
(ii) Further, plaintiffs have examined Sh. Ram Kishan as PW2 Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.13/29 and he was duly cross examined and during cross examination, he has deposed that "..........Sh. Chander Mal was aged about 90 years when Ex. PW2/1 was executed. The WILL was not typed in my presence. I know as to whom the property was given. The same was given to the plaintiffs. The thumb impression on Ex. PW2/1 is not of Sh. Chander Mal.........The thumb impression was affixed in my presence. Sh. Chander Mal had died about 15 years ago..........."
(iii) On the other hand, defendant has examined Sh. Mahender Kumar as DW1 from Tata Powers, Inderpuri and he has proved the receipt of charges of installation of electricity connection, deposited on 07.02.1989 and the same is Ex. DW1/1. Further, defendants has examined Sh. Tirlochan Singh, LDC from Delhi Jal Board as DW2 and he has proved the application along with affidavit for installation the water connection and the copy of the same is Ex. DW2/1 and report of ZE is Ex. DW2/2 and the sanction order is Ex. DW2/3 and affidavit is Ex. DW2/4. Further, defendant has examined Sh. Jagdip Dahiya, UDC from Chief Election Office, Kashmere Gate, Delhi as DW3 and he has proved the report regarding destroyer of record after 1983 and the copy of the same is Ex. DW2/3.
(iv) Further, defendant has examined himself as DW4 and during examination in chief by way affidavit, he has reasserted the facts mentioned in the WS. He was duly cross examined and during cross Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.14/29 examination, he has deposed that "...........I came in possession of the disputed land about 55 years ago. When I occupied the disputed property it was a vacant land and thereafter, I raised the constructed over it. A criminal case was registered against the predecessor of the plaintiffs when they tried to take forcible possession of the land in dispute. I am living in WZ66B. It is correct that WZ66 is comprised of four parts A, B, C and D. The MCD allotted the number 55 years ago..........It is wrong to suggest that Sh Chander Mal had given the land underneath the disputed property in the year 1959 to me at the rate of Rs. 30/ per month. It is correct that the plaintiff's are the grandsons of Chander Mal............."
(v) Further, defendant has examined Sh. Swatantra Kumar, LDC from House Tax Department as DW5 and he has proved the Form K and notice under Section 126 of DMC Act and the copies of the same are exhibited as Ex. DW5/1 and Ex. DW5/2 respectively. Further, defendant has examined Sh. Darmnand Patwari as DW6 and he has proved the jamabandir for the year 200405 and the copy of the same is already Ex. DW4/21. Further, defendant has examined Sh. Mahipal Singh S/o Sh. Dayanand as DW5 (to be read as DW7). Further, defendant has examined Sh. Balbir Singh as DW7 (to be read as DW8) and he has proved the voter list pertaining to the years 1980, 1983, 1994 to 1998, 2007, 2008, 2011 and 2013 and the copies of the same is Ex. DW7/A(OSR). Further, defendant has examined Sh. Surender Kumar as DW8 (to be read as DW9) and he has proved the khasra girdawari pertaining to the year 1988 till 2000 and the copies of the same are Ex. DW8/A (OSR). Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.15/29
(vi) In the present suit as per plaintiffs, defendant was tenant of one Sh. Chander Mal in respect of land measuring 200 Sq. Yards in khasra No. 321, property No. WZ66, Khampur, Delhi at the monthly rent of Rs. 30/ excluding other charges. Thereafter, Sh. Chander Mal died and by way of WILL dated 21.04.1980, he bequeathed the suit property in favour of the plaintiffs. The defendant has not paid rent since last 30 years and vide legal notice dated 10.07.2011, tenancy of the defendant was terminated and defendant was called to pay rent of three years preceded legal notice. The tenancy was for open land, therefore, there is no bar of DRC Act. Despite service, defendant failed to vacate the property and to pay the arrears of rent. Hence, the present suit. It is argued on behalf of the plaintiffs that as per plaintiffs, the property in possession of defendant is property No. WZ66, Village Khampur, Khasra No. 321. The defence of defendant is that the property is WZ66, Village Khampur but it is a property falling in khasra No. 316 and not in 321. Thus, the only dispute is as to khasra number. It is also argued on behalf of the plaintiffs that defendant has admitted in Ex. P5 that defendant was tenant of the suit property under ownership of Sh. Chander Mal and once, defendant has admitted Sh. Chander Mal as an owner/landlord, by virtue of Section 116 of Indian Evidence Act, 1872, defendant can not challenge the title of Sh. Chander Mal. As far as the title of the plaintiffs is concerned, plaintiffs have duly Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.16/29 proved the WILL of Sh. Chander Mal by calling attesting witness as PW2 in compliance of Section 66 of Indian Evidence Act, 1872 and the testimony of PW2 has stood up to cross examination. Thus, the tenancy has been attorned to plaintiffs and as landlords, plaintiffs have right seek possession of the property. It is also argued that admittedly, defendant came into the possession of the vacant land and when vacant land was let out to defendant and later on, defendant raised construction over the property, then defendant only is to pay house tax, electricity and water bills and it is not in dispute at all. As a vacant plot of land was let out to defendant, the provision of Delhi Rent Control Act is not applicable and in support of their contentions, plaintiffs have relied upon the following judgments i.e Prabhat Manufacturing Industrial CoOperative Society Vs. Banwari Lal, All Indian Rent Control Journal, SC, 1989 (2) and Ram Prakash Vs. Amrit Kaur, 1982 RLR (Note)8. It is also argued on behalf of the plaintiffs that as far as testimony of DW1, DW2, DW3 and DW5 is concerned, it is not disputed. As far as the testimony of defendant as DW4 can not be considered as the affidavit of Evidence/Ex. DW4/A is not property verified and despite specific objection of plaintiffs in examination in chief, defendant has failed to remove the defect, so the affidavit of testimony of DW4 can not be read in evidence. In support of their contentions, plaintiffs have relied upon the following judgments i.e Ranjit Construction Co. Ltd. Vs. National Highways Authority of India, Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.17/29 107(2003) DLT 249(DB), Mrs. Sapna Singh Pathania Vs. Jagdish Chander Mehta, 75(1998) DLT 725, Lt Cdr. Jamohan Vs. Sunita Verma, 1983 RLR 140, Sunder Ind Vs. General Engg. Wks, 1982 RLR 133, Amar Singh Vs. Union of India 2012 RLR 380 (SC) and State of Rajasthan Vs. M/S Sindhi Film Exchange, AIR 1974 Rajasthan.
(vii) Further, during DE, defendant has relied upon the document i.e Jamabandi Ex. DW4/21 and as per this document, plaintiffs are in possession of property through defendant. Further, in Ex. P5, once plaintiff has proved that defendant is tenant, then defendant can not claim ownership against plaintiffs on the basis of adverse possession. Moreover, the plea of adverse possession can be taken against true owner only but defendant has not admitted plaintiffs as owners and without admitting the ownership of plaintiffs, defendant can not claim adverse possession against plaintiffs. Plaintiffs have relied upon the ratio held in Pappayammal Vs. Patanisamy AIR 2005 Mad. 431.
(viii) On the other hand, as per defendant, the defendant is in adverse possession of property No. WZ66, in khasra No. 316, Khampur, Delhi since 1959 and as defendant is in possession of the property, continuously openly and without any intervention, therefore, the defendant has become owner of the property and there is no landlord tenant relationship between parties as defendant was not tenant under tenancy of Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.18/29 Sh. Chander Mal. It is also argued on behalf of the defendant that plaintiffs have not disclosed in plaint, in what capacity, Sh. Chander Mal allegedly let out the property to the defendant whether he was owner of the property or he was just representative of the owner, therefore, without proving and showing the same, plaintiffs can not derive any title from Sh. Chander Mal. Further, as per plaintiffs, property in possession of defendant is in khasra No. 321 while as per defendant, property in possession of the defendant is in khasra No. 316. Admittedly, there is not single WZ66 in Village Khampur, so plaintiffs are required to prove that property is in khasra no. 321 but plaintiffs have not led any evidence to prove the same. Further, as per plaintiffs, open land was let out to defendant but suit is bad in the eyes of law as plaint no where mentions for which purpose the land was let out and accordingly, the legal notice of plaintiffs is also not proper. Now, plaint discloses when tenancy commenced and to whom defendant ever paid any rent. Further, as far as Ex. P5 is concerned, there was no mention of criminal proceedings in plaint or in replication and this fact had been mentioned in the evidence for the first time, so it need not to be considered being beyond pleadings. Further, statement dated 30.10.1978 Ex. P5 is not relevant as defendant was not confronted with this document during cross examination. Further, defendant raised construction over the property and the same was never objected by the plaintiffs at any point of time, so possession of defendant Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.19/29 is binding upon plaintiffs. Further, defendant has not been served with any legal notice. Plaintiff has not placed on record any document to prove his ownership nor nature of property disclosed i.e whether it was ancestral property of Sh. Chander Mal or his personal property. While defendant has duly proved by way of documents that defendant is in possession of property since 1980 till date as an owner.
(ix) In rebuttal, plaintiffs have argued that the affidavit of defendant/Ex. DW4/A can not be read in evidence, so no question of confronting him with Ex. P5 arises. Further, the documents relied upon by the plaintiff was not been denied by defendant during cross examination of PW1, so plaintiffs are not required to confront the DWs with any of these document.
(x) I have heard the arguments and perused the record and judgments filed by the parties.
(xi) It is well settled rule of law that in civil cases the burden of proof upon the plaintiff is preponderance of probabilities i.e after considering the evidence lead by both the parties, the court has to weigh in whose favour the probabilities lie or in other words whose version seems to be more probable. Further, it is also well established legal principle that the onus to prove its case is always upon the plaintiff and the suit of the plaintiff has to stand on its own legs.
(xii) It is also well established legal principle that in a case for Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.20/29 possession and arrears of recovery of rent, plaintiffs are required to prove the following three things:
(a) There exists landlord tenant relationship between plaintiff and defendant.
(b) The rate of rent is above Rs. 3,500/ per month and tenancy is not protected under DRC Act.
(c) The tenancy has been duly terminated vide legal notice.
(xiii) Now, the onus is upon the plaintiffs to prove that there exists landlord tenant relationship between parties. As per plaintiffs, defendant was tenant of one Sh. Chander Mal and a criminal case was registered against plaintiffs and their family members and in the criminal trial, in FIR No. 635/74, defendant gave a statement (Ex. P5) as a witness on 18.01.1978 in which he admitted that the defendant is tenant under deceased Sh. Chander Mal and once the defendant has admitted Sh. Chander Mal as landlord/owner of the property, defendant can not challenge the title of Sh. Chander Mal. Further, Sh. Chander Mal has bequeathed his property to plaintiffs by way of WILL and therefore, plaintiffs have been stepped into shoes of Sh. Chander Mal as landlord.
(xiv) The defendant has objected to the fact that Ex. P5 has been mentioned by the plaintiffs for the first line in the evidence and plaintiffs have not mentioned this particular document in the plaint nor in the replication and moreover, defendant has not been confronted with the Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.21/29 statement during cross examination. As far as this, plea is concerned, defendant has not taken any such objection at the time of examination of PW1 who has relied upon Ex. P5, therefore, at the stage of final arguments, defendant can not take the plea that this document has been mentioned for the first time in the evidence of plaintiffs. Further, it is a prerogative of the plaintiffs, which document plaintiffs want to confront to the defence witness and court can not give directions to the plaintiffs. Ex. P5 is statement of Dayanand recorded as PW1 on 18.01.1978 in which he has stated that "......Accused Chander Mal is the owner of plot No. WZ66, Khampur. Phool Singh, Satpal and Ram Niwas are living as tenants in the said plot. I am a tenant in that plot for the last about 20 years. I pay rent of Rs. 30/ per month to Chander Mal regarding the portion of plot in my possession. I have constructed the shelter in that plot myself. Accused Chander Mal wants to get this plot vacated from us........."
(xv) Now, in this statement, defendant had admitted that he is tenant under Sh. Chander Mal regarding plot No. WZ66, Khampur but in this statement, khasra number has not been mentioned while in the present suit, admittedly, the identity of property i.e khasra number of the property is in dispute as the plaintiffs are claiming relief regarding property no. WZ66 falling in Khasra No. 321 under the possession of defendant while as per defendant, defendant is in possession of property WZ66 falling in khasra No. 316. Therefore, this statement can not be considered as an Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.22/29 admission of the tenancy nor as an admission of ownership of Sh. Chander Mal. The plaintiffs have not filed any other document to prove the ownership of Chander Mal nor plaintiffs have filed any other proof to prove the fact of tenancy between Sh. Chander Mal and defendant. As per plaintiffs themselves, defendant has not paid any rent since last 30 years and no formal agreement of tenancy, oral or written, has been executed between plaintiffs and defendant after death of Sh. Chander Mal. Thus, it is clear that the plaintiffs have failed to prove that there exists landlord tenant relationship between plaintiffs and defendants. Once the plaintiffs have failed to prove landlord tenant relationship between plaintiffs and defendant, remaining arguments and evidence as to applicability of DRC Act and termination of tenancy become irrelevant and can not be considered and decided.
(xvi) It is argued on behalf of the plaintiffs that as per documents filed by the defendant himself i.e Jamabandi for the year 200405 i.e Ex. DW4/21, plaintiffs are in possession of the property through defendant. As far as this plea is concerned, as per Ex. DW4/21, defendant is in possession of khasra No. 316 while the plaintiffs are claiming the possession regarding plot No. WZ66 falling in khasra No. 321. Similarly, as per Khasra Girdawari Ex. DW8/A (Colly) pertaining to the year 1988 till 2005, the defendant was in possession of plot falling in khasra No. 316 and it is clearly contrary to the contention of plaintiffs. Thus, defendant Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.23/29 has been able to prove that the defendant is in possession of the plot falling in khasra No. 316 while the plaintiffs have failed to prove that there exists landlord tenant relationship and consequently, no question of termination of tenancy arises and plaintiffs can not claim the possession and arrears of rent. In view thereof, the issue No. 4 and 5 are decided in favour of the defendant and against the plaintiffs.
(B) Issue No. 3: Whether the plaintiff is guilty of material facts from this court?OPD.
The onus to prove this issue is upon the defendant. However, the defendant has not lead any evidence nor addressed any arguments, therefore, the issue no. 3 is decided in favour of the plaintiffs and against the defendant.
(C) Issue No. 2: Whether the suit of the plaintiff has not been properly valued for the purpose of court fee and jurisdiction?OPD.
(i) The onus to prove this issue is upon the defendant. It is argued on behalf of the defendant that the defendant is in adverse possession of the property since last 30 years and the fact is known to the plaintiffs and, Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.24/29 therefore, plaintiffs are required to file the suit for possession and is liable to value the suit as per market value of the suit property and is liable to pay advalorem court fees accordingly.
(ii) On the other hand, it is argued on behalf of the plaintiffs that the plaintiffs have correctly valued the suit and have paid appropriate court fees as plaintiffs are landlord/owner of the property and the defendant is tenant and the suit has been accordingly valued as per annual rate of rent and appropriate court fees has been paid as per Section 7 of Court Fees Act R/W Section 4 & 6 of the Suit Valuation Act.
(iii) Arguments heard. Record perused.
(iv) It is settled principle that in cases for suit for possession on
the basis of landlord tenant relationship, the suit is valued as per annual rate of rent and court fees is accordingly paid and at the time of determination of valuation of the suit and court fees, court is required to consider the plea of the plaintiffs and the spirit of the relief sought by the plaintiffs and accordingly, it is clear that the plaintiffs have correctly valued the suit and have paid appropriate court fees. In view thereof, the issue No. 2 is decided in favour of the plaintiffs and against the defendant.
(D) Issue No. 1: Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.25/29 Whether the defendant has become the owner of the suit property by way of adverse possession?OPD.
(i) The onus to prove this issue is upon the defendant. The facts and evidence have already been discussed during findings on issues No. 4 and 5 and without repeating the same, it can be concluded that admittedly, defendant is in possession of the property since 1959. Now, as per plaintiffs, defendant was in possession of the property under the tenancy of Sh. Chander Mal and after death of Sh. Chander Mal, plaintiffs became owners of the property by virtue of WILL executed by Sh. Chander Mal in favour of the plaintiffs.
(ii) On the other hand, as per defendant, the defendant was in adverse possession of the property since last 30 years and, therefore, the defendant has become the owner of the property.
(iii) Arguments heard. Record perused.
(iv) In the present suit, defendant has not admitted Sh. Chander
Mal as owner or landlord of the property and it is settled principle that adverse possession can be claimed only against real owner. Further, it is also well recognized proposition of law that mere possession however long does not necessarily mean that it is adverse to the true owner and the burden of proof is upon the person who claims title by adverse possession that when his possession has become adverse to the real owner in order to Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.26/29 maintain the plea of adverse possession. Thus, adverse possession is not a pure question of law but a blended one of the fact and law. Therefore, a person who claims adverse possession should who (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 established all facts necessary to establish his adverse possession. The ingredients of adverse possession have succinctly been stated by this court in S.M. Karim V. Mst. Bibi Sakina (AIR 1967 SC 1254) in the following terms: "Adverse possession is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found." See also M. Durai V. Madhu and Others 2007 (2) SCALE 309. The aforementioned principle has been reiterated by this court in Saroop Singh V. Banto and Others [(2005) 8 SCC 330] stating: "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 of defendant possession becomes adverse." (See Vasantiben Prahladji Nayak Vs. Somnath Muljibhai Nayak).
Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.27/29
(v) In T. Anjanappa Vs. Somalingappa, VI (2006) SLT 430= III (2006) CLT 237 (SC) = (2006) 7 SCC 570, it has been explained that the concept of adverse possession contemplates hostile possession i.e a possession which is expressly or impliedly in denial of the title of the true owner. A person who claims title by adverse possession "must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed." Therefore, a person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In the present case as well it raised the clear presumption that defendant is not sure who is the true owner,j the question of hostile possession and the question of denying title of the true owner do not arise.
(vi) In the present suit, defendant has not lead any evidence to show that when the possession of defendant became adverse to the real owner. It is clear that to claim title on the basis of adverse possession, the defendant has to show two ingredients:
(a) Corpus Possessidendi i.e the physical possession and
(b) Animus possessidendi i.e intention to exclude the adversary from possession overtly without attempt of concealment.
(vii) In the present suit, defendant has not admitted the plaintiffs or Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.28/29 Sh. Chnader Mal as owners nor defendant has lead any evidence to show when the possession of defendant became adverse to the true owner. As defendant is not sure about the real owner nor defendant has disclosed as to who is true owner of the property, therefore, the question of his being in hostile possession and question of denying title of true owner don't arise. Accordingly, the issue No. 1 is decided in favour of the plaintiffs and against the defendant.
11. As issues No. 4 and 5 have been decided in favour of the defendant and against the plaintiffs, the suit is liable to be dismissed. Accordingly, the suit of the plaintiffs is dismissed as plaintiffs have failed to prove landlord tenant relationship between plaintiffs and defendant.
Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance. Announced in the open court on 22nd May, 2014 (PRABH DEEP KAUR) CIVIL JUDGE05(WEST) THC/DELHI/22.05.2014 Suit No. 294/11 Satish Verma Vs. Dayanand & Ors Page No.29/29