Delhi District Court
Kunti Devi Etc vs . Chela Ram Etc. on 6 May, 2010
Page No. Page numbers Suit No. 1194/2008
Kunti Devi etc vs. Chela Ram etc.
IN THE COURT OF SH. RAJ KUMAR : ADMINISTRATIVE CIVIL
JUDGEcum ADDITIONAL RENT CONTROLLER : (NORTH) DELHI.
In Re : Suit No. 1194/2008.
Old Suit No. 194/1985.
1.Smt. Kunti Devi (Deceased) through her LRs (Sh. Amrit Lal Jain & Sh. Shanti Prasad Jain.
2. Sh. Amrit Lal Jain, S/o late Sh. Roshan Lal Jain,
3. Sh. Shanti Prasad Jain, S/o late Sh. Roshan Lal Jain, Both plaintiff no. 2 and 3 R/o House no. 335/5, Ward No. IV, Main Bazar, Mehrauli, New Delhi110030.
4. (i) Smt. Sneh Late Jain, C/o Sh. Madan Lal Jain, R/o 23, Sandeep Nagar, behind Gulmohar Hotel, Ludhiana (Punjab)
(ii) Sh. Rakesh Kumar Jain, S/o Late Sh. Om Parkash Jain, R/O House no. 235/5, Ward No. IV, Main Bazar, Mehrauli, New Delhi110030.
(iii) Sh. Harish Kumar Jain, S/o late Sh. Om Parkash Jain, R/O House no. 235/5, Ward No. IV, Main Bazar, Mehrauli, New Delhi110030.
Plaintiffs.
Versus.
Contd...
Page No. Page numbers Suit No. 1194/2008
Kunti Devi etc vs. Chela Ram etc.
1. Sh. Chela Ram (deceased)
through his legal heirs
(i) Smt. Bhajan Kaur widow of Chela Ram
(ii) Sh. Rajinder Kumar son
(iii) Sh. Pawan Kumar son
(iv) Sh. Man Mohan Kumar son
All R/o Property no. 335/9, Ward No. IV,
Main Bazar, Mehrauli, New Delhi110030.
2. Sh. Roshan Lal,
S/o Sh. Chela Ram,
R/o Ward no. IV, Mehrauli, New Delhi.
3. Sh. Jaswant Rai,
S/o S. Ram Kishan,
Shop no. 335/1, Ward No. IV, Mehrauli, New Delhi.
4. Sh. Nem Chand
S/o late Sh. Shiv Charan Dass,
Shop no. 335/2, Ward No. IV, Mehrauli, New Delhi30.
5. Smt. Sevti Devi (deceased) through her LRs :
(i) Sh. Tara Chand,
(ii) Sh. Nem Cand,
(iii) Sh. Kailash Chand,
(iv) Sh. Subhash Chand, All S/o late Sh. Shiv Charan Dass, All R/o 5/624, Mehrauli, New Delhi30.
(v) Smt. Urmila Wd/o late Sh. Prem Chand,
R/o 5/624, Mehrauli, New Delhi30.
5 (v) (i) Sh. Ashok Kumar S/o late Sh. Prem Chand,
R/o 5/624, Mehrauli, New Delhi30.
(vi) Smt. Shano D/o late Sh. Shiv Charan Dass,
(vii) Smt. Pushpa D/o late Sh. Shiv Charan Dass,
Contd...
Page No. Page numbers Suit No. 1194/2008
Kunti Devi etc vs. Chela Ram etc.
(viii) Smt. Rajjo D/o late Sh. Shiv Charan Dass,
(ix) Smt. Krishna D/o late Sh. Shiv Charan Dass,
(x) Smt Uma D/o late Sh. Shiv Charan Dass,
All R/o 5/624, Mehrauli, New Delhi30.
Defendants.
Date of Institution of Suit : 27.09.1985.
Date on which Order was reserved : 19.04.2010.
Date of Pronouncement of Order : 06.05.2010.
JUDGMENT.
The facts in brief, necessary for the disposal of the present suit for recovery of possession, damages and injunction as disclosed by the plaintiff in the plaint, are that Sh. Roshan Lal and Sh. Om Parkash sons of late Sh. Rakhab Dass Jain were the allottees under the Custodian of Evacuees, property, New Delhi and have been in continuous possession in respect H.No. 335 and H.No. 335/5 (old no. 710), Ward No. IV, Main Bazar, Mehrauli, New Delhi and the above premises on the ground floor has been shown in yellow colour and the premises on the first floor has been shown in red in the site plan. The said property on the ground floor comprises of Zina on the right side, zina on the left side, Chhappar (Dalan) and a room and on the first floor there are four rooms, bathroom, two kitchens and a toilet. It has been further submitted that Sh. Roshan Lal expired on 12.01.1979 at Delhi leaving behind plaintiff no. 1 as his widow and plaintiff nos. 2 and 3 as his sons. It has been further submitted that the plaintiffs have been in uninterrupted possession of the aforesaid property in their own rights since 1949 onwards and have become owners by adverse possession to the knowledge of all the occupants of the suit property and the locality and to the knowledge of true owner. It has been stated further that defendant no.1 or anyone else never challanged the Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. ownership of the plaintiffs. It has been further submitted that plaintiffs constructed one kitchen measuring 7' x 6' in the year 1963 and converted the kitchen into the bathroom and that the plaintiffs have been carrying out repairs of the suit property since 1949 onwards. It has been further submitted that plaintiffs used to lock the main entrance of private Zina no. 3 leading to the ground floor and to the first floor portions which are in exclusive possession of the plaintiffs.
It has been further submitted that plaintiffs have been using one Zina no. 3 which adjoins the shops no. 335/1 and leads to the ground floor portion and to the first floor portion, both in exclusive possession of the plaintiffs since 1949 onwards. It has been stated further that other Zina on the right side of the suit property i.e. Zina no. 2 is meant for joint use of the plaintiffs and the occupants of property no. 335/7, Mehrauli, New Delhi only. It has been further submitted that plaintiffs used to store articles and goods in Chhappar (Dalan) and room and used to keep cots in the passage on the ground floor of the disputed property. It has been further submitted that there are four shops no. 335/1 to 335/4 between the aforesaid two Zinas, which are in exclusive possession of different occupants, shop no. 1 335/1 is in occupation of Sh. Jaswant Rai (defendant no. 3) and the portion above the said shop and on the passage comprising of part of the room measuring 15' x 9' has been in possession of the plaintiff as owners by adverse possession, the second shop no. 335/2 is in occupation of Sh. Nem Chand (defendant no. 4) and the portion above the said shop comprising of remaining part of the said room has been in possession of the plaintiff as owners by adverse possession, the third and fourth shop nos. 335/3 & 335/4 are in occupation of Smt. Savti Devi Wd/o Sh. Shiv Charan Dass (defendant no. 5) and the portion above the said shops comprising of a room measuring 14'4" x 8'9" has been in possession of the plaintiff as owners by adverse possession. It has been further submitted that now Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. the defendant no. 1 is in possession of only one shop bearing no. 335/9 and has no concern whatsoever with the premises mentioned in para no. 1 of the plaint. Defendant no. 2 is the son of defendant no. 1. It has been stated further that the defendant no. 3 is in possession of shop no. 335/1 and has illegally installed two shutters : one opening towards the Main Bazar, Mehrauli and other opening towards the private Zina no. 3 and the said construction is an unauthorized construction and is liable to remove the said shutters. It has been further submitted that shutter towards Zina no. 3 would cause an obstruction in the enjoyment of the private Zina no. 3 by the plaintiff. It has been alleged that in the intervening night of 23/24.07.1995 at about 2.10 am, the defendants alongwith other persons broke open the locks of the plaintiff's private Zina no. 3 and lock of the room on the ground floor portion and removed the articles lying there and the estimated value of the said articles was about Rs. 3,082/ and the detail of the same has been given in para no. 9 of the plaint. It has been stated that the plaintiffs are entitled to recover the said amount of Rs. 3082/ or to return of the goods. It has been further submitted that matter was reported to the police but the local police was in connivance with the defendant no. 1 and thus no action was taken. It has been further submitted that a criminal complaint in this regard was also filed and the same is pending in the court of SDM, New Delhi. It has been alleged that on 21.09.1985, defendants threatened to take forcible possession of first floor premises of the plaintiff comprising of four room, two kitchens, one toilet, open courtyard, one store and one bathroom forming part of H.No. 335/5 as shown in red and that the defendants have already been successful in trespassing the ground floor portion of the disputed property as shown in yellow colour in the site plan, which the plaintiffs are entitle to recover from the defendants. The plaintiffs have further claimed damages @ Rs. 20/ per day from the date of dispossession i.e. Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. 24.07.2985 to 25.09.1985 (63 days) amounting to Rs. 1260/. It has been stated further that during the pendency of the present suit defendant no. 4 has filed on 17.12.1985 an eviction petition against the plaintiff nos. 1 to 3 on the ground of nonpayment of rent u/S 14 (1) (a) DRC Act in respect of the alleged one room on the first floor of the property bearing no. 335/5 and the said petition is pending disposal. It has been stated further that during the pendency of the present suit defendant no. 5 has filed on 17.12.1985 an eviction petition against the plaintiff nos. 1 to 3 on the ground of nonpayment of rent u/S 14 (1) (a) DRC Act in respect of the alleged two room above the shops no. 335/3 and 335/4 and the said petition is pending disposal.
It has been prayed that a decree for possession be passed in favour of the plaintiffs and against the defendants in respect of the premises comprising of the room and Dalan (Chhappar) and the passage under private Zina no. 3 on the ground floor shown in yellow colour in the site plan, forming part of property no. 335 and 335/5, Ward no. 5, Mehrauli, New Delhi and also for restraining the defendants from constructing any market or making any additions or alterations or from transferring or alienating the same in any manner. It has also been prayed that a decree for mandatory injunction be passed directing the defendant no. 3 to remove the shutter opening towards the side of private Zina no. 3. It has also been prayed that a decree for permanent injunction be also passed in favour of the plaintiff and against the defendants and their agents etc from dispossessing the plaintiff from the first floor comprising of four rooms, one bathroom, two kitchens, one latrine and one room out of the four rooms is existing above the shops no.s 335/1 and 335/2 and on the passage of private Zina no. 3, forming part of the premises no. 335/5, Ward no. IV, Mehrauli New Delhi as shown in red colour. It has also been prayed that a decree for Rs. 1260/ as damages for use and Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. occupation of the suit property for the period from 24.07.1985 to 25.09.1985 and decree for mesne profits for future, against the defendant no. 1 and 2. It has also been prayed that a decree for recovery of Rs. 3082/ being the costs of the goods removed by the defendant no. 1 and 2 be passed in favour of the plaintiff and against the defendant nos. 1 and 2 jointly and severally. Plaintiff has also prayed for the costs of the suit.
2. Joint Written Statement has been filed on behalf of defendant nos. 1 and 2 taking therein various preliminary objections such as that the plaintiffs have no locus standi to file the present suit; that the suit has not been valued properly for the purposes of court fees and jurisdiction; that the suit is bad for misjoinder of parties; that the plaintiffs have not given the full description, identity and demarcation of the suit property.
On merits, it has been stated that defendant no. 1 purchased a very big double property storey built on area of 432.3 sq. yards bearing nos. IV/335, 335/1 to 335/15, Mehrauli, New Delhi from Custodian Department vide conveyance Deed / certificate of sale in respect thereof. It has been further submitted that Sh. Roshan Lal, the predecessor in interest of plaintiff nos. 1 to 3 and Sh. Om Parkash, plaintiff no. 4 were merely licensees of the custodian of Evacuee Property and they have never challenged the title of defendant no. 1 in respect of the suit property. It has been further submitted that defendant no.1 is the owner of the passage leading to the back of the property in question alongwith Zina no. 3 and that plaintiffs never used and were not permitted to use Zina no. 3 or the back portion or the entrance through the passage leading to the same. It has been further submitted that plaintiffs are not in possession of any portion on the ground floor of suit property and rather the plaintiffs are in possession of only a portion on the first floor of the property merely as licensees of th Custodian. It has Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. been stated further that the said property due to its sale to defendant no. 1, is assessed to Property Tax in his name and he is paying the entire property tax. It has been alleged further that in the garb of the present suit the plaintiffs are trying to encroach upon the passage leading to the back portion comprising of one Hall and a room and also the private Zina no. 3. It has been further submitted that it is not disputed that plaintiff in property no. 335/5 and other occupants in property no. 335/6 use private Zina no. 2 for ingress and egress. It has been denied that the plaintiffs used to store articles and goods in Chhapper and room and used to keep cots in the passage on the ground floor of the property. It has been denied that the portions over the shop nos. 335/1 to 335/4 have been in possession of the plaintiffs as owners by adverse possession. It has been stated further that on the basis of the sale certificate / sale deed executed by the Custodian Department in favour of defendant no. 1 had sold some portion of his property no. 335, 335/1 to 335/15 to several persons and the detail of the same is given in para no. 8 (on merits) of the Written Statement. The incident dated 23/24.07.1985 as alleged by the plaintiff, has been denied by the answering defendants as the plaintiffs were never in possession of any portion of the ground floor of the property. It has been further denied that on 21.09.1985 the defendants threatened to take forcible possession of he portion shown in red colour from the plaintiffs. Rest of the contents of the plaint have been denied by the answering defendants and it has been prayed that the suit of the plaintiffs be dismissed.
3. Joint Written Statement has been filed on behalf of defendant nos. 3 to 5 taking therein various preliminary objections such as that the plaintiffs have no locus standi to file the present suit; that the suit against the answering defendants is not maintainable as the plaintiffs have no cause of action against the answering defendants; that the suit has not been properly valued for the purposes Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. of court fees and jurisdiction and that the plaintiffs have not come with clean hands.
On merits, the answering defendants have admitted that Roshan Lal and Om Parkash were the allottees under the Custodian in respect of property in suit but it has been denied plaintiff nos. 1 to 4 have been in continuous and uninterrupted possession of the ground floor and first floor of property no. 335 and 335/5, since 1949 onwards and have become owner by way of adverse possession. It has been further submitted that plaintiffs never claimed ownership of the property in dispute at any time. It has been stated that the plaintiffs have no right to use private Zina no. 3 and at no point of time plaintiffs ever used the Zina no. 3 and rather the plaintiffs have been using the Zina no. 2 which is also used by other occupants. It has been denied that plaintiffs used to store articles and goods in Chhappar and have they have been using the ground floor of the disputed property for their residential purposes since 1949 onwards. It has been further submitted that out of the four shops, two were originally in the name of Smt. Sevti Devi, one was in the name of Shiv Charan Dass and the other was in the name of Sh. Nathu Ram which was purchased by Jaswant Rai. It has been denied that the defendant no. 3 had illegally installed two shutters rather the same were in existence since the very beginning and as such defendant no. 3 is not liable to remove the said shutters. The incident dated 23/24.07.1985 as alleged by the plaintiffs in the plaint, has been denied by the answering defendants. It has also been denied that on 21.09.1985 defendants threatened to take forcible possession of the first floor of the premises in question. It has been further denied that the plaintiff is entitled for any damages @ Rs. 20/ per day from the date of dispossession or for recovery of Rs. 3082/ for the alleged theft. Rest of the contents of the plaint have been denied by the answering defendants and it has Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. been prayed that the suit of the plaintiffs be dismissed.
4. Replications to the Written Statement of defendants has also been filed by the plaintiffs denying the contents of the Written Statement and reaffirming and reiterating the contents of the plaint.
5. From the pleadings of the parties, the following issues were framed in the present suit by my Ld. Predecessor on 28.08.1999
1. Whether the plaintiffs have become owners of suit property by adverse possession? OPP.
2. Whether the plaintiffs are entitled to recover possession of room, Dalan (Chhapar) and passage on the ground floor under private zina no. 3? OPP.
3. Whether the plaintiffs are entitled to recover Rs. 3082/ in lieu of articles re by the defendants? OPP.
4. Whether the plaintiffs are entitled to damages, if so, to what extent? OPP.
5. Whether the plaintiffs have locus standi and cause of action? OPP.
6. Whether the suit has been valued properly for purposes of court fees and jurisdiction? OPP.
7. Whether the plaintiffs are entitled to permanent and mandatory injunctions?
OPP.
8. Whether the suit is bad for nonjoinder and misjoinder of necessary parties?
OPD.
9. Relief.
6. In support of their respective cases, the plaintiffs have examined as many as five witnesses whereas the defendants have examined three witnesses. Written arguments have also been filed on behalf of defendant nos. 3 and 4. Ld. counsel for the plaintiff has addressed the arguments at length.
Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc.
7. I have carefully gone through the entire material on record and have also heard the rival submissions as advanced by Ld. counsels for the parties and have also gone through the written arguments filed on record by Ld. counsel for defendant nos. 3 and 4.
My issuewise findings on the various issues framed in the present suit are as under :
ISSUE Nos. 1, 2, 3 4 & 7 : All these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the main suit.
The factual matrix of the present suit is within a narrow compass.Sh. Roshan Lal and Sh. Om Parkash sons of late Sh. Rakhab Dass Jain were the allottees under the Custodian of Evacuees, property, New Delhi and have been in continuous possession in respect H. No. 335 and H. No. 335/5 (old no. 710), Ward No. IV, Main Bazar, Mehrauli, New Delhi. It has been further submitted that premises in occupation of the plaintiffs on the ground floor has been shown in yellow colour and the premises on the first floor has been shown in red in the site plan. It has been further submitted that Sh. Roshan Lal expired on 12.01.1979 at Delhi leaving behind plaintiff no. 1 as his widow and plaintiff nos. 2 and 3 as his sons. It has been further submitted that the plaintiffs have been in uninterrupted possession of the aforesaid property in their own rights since 1949 onwards and have become owners by adverse possession to the knowledge of all the occupants of the suit property and the locality and to the knowledge of true owners. It has been further submitted that plaintiffs constructed one kitchen measuring 7' x 6' in the year 1963 and converted the kitchen into the bathroom. It has been alleged that in the intervening night of 23/24.07.1995 at about 2.10 am, the defendants Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. alongwith other persons broke open the locks of the plaintiff's private Zina no. 3 and lock of the room on the ground floor portion and removed the articles lying there and the removal of the goods amounts to theft. It has been further submitted that plaintiffs immediately report the matter to the local police by dialing no. 100 and also sent telegram dated 24.07.1985 to the Commissioner of Police. It has been further submitted that plaintiff no. 2 has also filed a criminal complaint for the aforesaid illegal acts in the court of Ld. CMM, Delhi and the said complaint has been marked to the court of Sh. K.C. Lohia, Ld. MM. It has been further submitted that plaintiff no. 2 has also filed a complaint u/S 145 CrPC in the court of SDM, New Delhi. It has been alleged that on 21.09.1985, defendants threatened to take forcible possession of first floor premises of the plaintiff comprising of four room, two kitchens, one toilet, open courtyard, one store and one bathroom forming part of H. No. 335/5 as shown in red and hence the present suit.
Written Statements have been filed separately by defendant nos. 3 to 5 and defendant nos. 1 & 2 taking therein various preliminary objections as stated herein above. The main plea of the defendants in their Written Statement filed on record is that the plaintiffs could not disclose as to when the property in question was allotted to Sh. Roshan Lal and Sh. Om Parkash by the Custodian Department.
The defendants have further stated that the plaintiffs have no right, title or interest in respect of the ground floor of the property i.e. Zina on the right side, one room and the Hall. The defendants have admitted Sh. Roshan Lal expired on 12.01.1979 at Delhi leaving behind plaintiff no. 1 as his widow and plaintiff nos. 2 and 3 as his sons but the plaintiffs are not competent to maintain the suit because Sh. Roshan Lal was a tenant under the custodian in respect of first floor of the property and after purchase of the said property by Sh. Chela Ram, Sh.
Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. Roshan Lal became the tenant under Sh. Chela Ram and also accepted and acknowledged Sh. Chela Ram as owner / landlord in respect of the said property. This plea has been taken by defendant no. 3 in his Written Statement.
The main plea taken by defendant nos. 1 and 2 is that efendant no. 1 purchased a very big double property storey built on area of 432.3 sq. yards bearing nos. IV/335, 335/1 to 335/15, Mehrauli, New Delhi from Custodian Department vide conveyance Deed / certificate of sale in respect thereof. It has been further submitted that Sh. Roshan Lal, the predecessor in interest of plaintiff nos. 1 to 3 and Sh. Om Parkash, plaintiff no. 4 were merely licensees of the custodian of Evacuee Property and they have never challenged the title of defendant no. 1 in respect of the suit property. It has been stated further that on the basis of the sale certificate / sale deed executed by the Custodian Department in favour of defendant no. 1 had sold some portion of his property no. 335, 335/1 to 335/15 to several persons and the detail of the same is given in para no. 8 (on merits) of the Written Statement.
Now in the light of the aforesaid pleadings of the parties, the question to be considered by the court is as to whether the plaintiffs have been able to prove that their predecessor in interest Sh. Roshan Lal and Sh. Om Parkash were the allottees of the property bearing no. 335 and 335/5, Ward no. 4, Main Bazar, Mehrauli and as to whether the plaintiffs have become the owners of the said property by way of adverse possession.
During the course of arguments, Sh. Kamal Chaudhary, Ld. counsel for the plaintiffs has vehemently argued that the plaintiffs do not have any document of ownership to show their ownership over the suit property but the plaintiffs have been able to prove by way of cogent evidence that they are the owners of the suit property by way of adverse possession since 1949 till 1985.
Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. Ld. counsel for the plaintiffs has relied upon the various documents such as Ex. PW 3/1 which is the survey report of the custodian department, the site plan Ex. PW 1/1, Ex. PW 5/1 to PW 5/3 etc. Ld. counsel for the defendant nos. 3 and 4 has filed on record the written final arguments stating therein that the plaintiffs have miserably failed to prove their case as set up in the plaint and as such the plaintiffs are not entitled for any relief. It has been argued by Ld. counsel for defendant nos. 3 and 4 that the case set up by the plaintiffs in the plaint is demolished if the cross examination of PWs is carefully gone through.
Sh. Amrit Lal Jain, one of the plaintiffs has examined himself as PW1 and in his examination in chief he has reiterated and reaffirmed the contents as contained in the plaint. The relevant part of cross examination of PW 1 reads as under :
" There used to be locks of the plaintiff in the rooms on the ground floor and on the main gate. I used to put the locks from outside and not from within. Sometimes we used to lock from out.... It is correct that we have not filed the said Key oin this Hon'ble Court alongwith the plaint. It is correct that we have not given the said kay to the police. It is correct that the said key has also no been filed with the Hon'ble Court in the Criminal case pending in Patiala House..... It is correct that there is no gate in Pvt. Zina no. 2. There is free access to Zina no. 2 from the main entrance.... My father had taken permission for the construction of the kitchen in the year 1963. The copy of the same was not given to me by my father. My father died before filing the present suit. I had not obtained the copy of the said permission Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. from the office of MCD.... I have not filed the documents from the office of the custodian regarding the allotment of property in my favour.... It is correct that the property no. 335 and 335/5 ward no. 4 Main Bazar Mehrauli, New Delhi belongs to Custodian Department. It is wrong to suggest that the property in dispute was allotted to Sh. Roshan Lal and Om Parkash by Custodian Department. The property in dispute stands in the name of Custodian Department itself in the department..... I have not given any notice to defendant nos. 3 to 5 alleging myself to be owner of the property as there was no need for the same. I have not given any public notice to the effect that I am the owner of the property... I do not know if I have filed any property returns.... It is correct that the roof over the shop of property no. 335/1 and 335/2 were also purchased by Jaswant Rai and Nem Chand with the shops.
The next witness examined by the plaintiffs is PW 2 Sh. Harish Kumar Jain, who has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by the plaintiffs in the plaint. The relevant part of cross examination of PW 2 reads as under :
" The original plaint dated 25.09.1985 does not bears my signature.... It is correct that I have not gone through the plaint dated 25.09.1985... We are the owner of the suit property since we are living in the same right from 194849, we became the owner by adverse possession in 1961. I do not know as to who was the original owner of the suit property before 194849.... From the paper I came to know that Sh. Chela Ram purchased the property Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. from the custodian department. It is correct that we have filed the suit against Sh. Chela Ram and he is the same person who has purchased the property from the custodian.... We have never paid any tax to the MCD in respect of property in disputes...:
The next witness examined by the plaintiffs is PW 3 Sh. Nagender Shah, UDC Department of Land & Building and he has brought the file bearing no. 2/170 (Old IV/335, Mehrauli, Delhi and prove the evacuee report as Ex. PW 3/1 but during his cross examination he stated that Ex. PW 3/1 was not prepared by him and nor in his presence and nor the signature on it were made in his presence.
The next witness examined by the plaintiffs is PW 4 Sh. Sudershan Kumar, who has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by the plaintiffs in the plaint. The relevant part of cross examination of PW 2 reads as under :
" I do not know whether plaintiff had purchased the property or not. I was told that they are tresspasser in the property. This talk took place in the years 194950 between the plaintiff and my father.... I cannot specifically named the persons who told about the breaking open of the lock.... I do not know nor I was told by the said gathering as to what were the items were stolen, the worth of which I have mentioned Rs. 3000/. I cannot give the particular names of the persons who told about amount of Rs. 3000/.... It is correct that I have not gone through the contents of affidavit dated 20.01.2004 in English... I am not aware if the property no. 335 & 335/5 ward no. IX Main Bazar Mehrauli, Delhi belongs to custodian department. I Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. do not know as to whom the property was transferred by the custodian department.... I do not know if Sh. Nathu Ram further sold the property no. 335/1 in favour of Sh. Jaswant Rai in the year 1985 with registered sale deed..."
The last witness examined by the plaintiffs is Sh. Jai Kishan Saxena, Kanugro, E.P. Cell, Land & Building, ITO, New Delhi and he has brought the file no. 2/710 (old no. 4/335) and the register containing the site plan of the property no. IV/335/115 and proved the copies of the relevant documents as Ex. PW 5/1 to PW 5/3. But during his cross examination he has admitted it to be correct that the record brought by him today do not remain in his custody, however it remain in the record room. He has further admitted it to be correct that Ex. PW 5/3 does not given the status of any person the names of whom are written. He has further stated that he cannot identify the signatures thereon since the same was not prepared in his presence. He has further admitted it to be correct that Ex. PW 5/3 is a torn one and has been pasted by an another paper on the back side and that the pasting was not done his his presence. He has admitted it to be correct that there are no signature on the paper pasted on the back side of Ex. PW 5/3. He could not identify the signature of any authority on Ex. PW 5/2. He stated that he could not say whether any tampering can be done.
Sh. Roshan Lal, one of the defendants has examined himself as DW 1 and has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by the defendants in the Written Statement and has proved the copy of the original certificate of sale as Ex. DW 1/A (OSR). The relevant part of cross examination of DW 1 reads as under :
" So far as my memory goes after the purchase of the property my Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. father occupied the premises bearing no. 335/9 and premises bearing no. 335 i.e. the suit property.... As per the sale certificate produced by me in the court today which is Ex. DW 1/A, my father was sold property bearing no. 335/115, ward no. IV, Mehrauli, New Delhi admeasuring 432.3 sq. yards... I have placed on record a site plan indicating my possession on the first floor of the premises bearing no. 335/15.... We used the Zeena no. 3 tohave an access to the godown at the back. It is correct that Zeena no. 3 is adjoining property no. 335/1... Ex. DW 1/A is the sale certificate issued by settlement commissioner of Jamnagar house which shows that my father purchased the premises no. 335 also... It is correct that there exist premises no. 335/1 to 335/15 in the suit property. It is incorrect to suggest that I alongwith other defendants illegally and forcibly dispossessed the plaintiff from the portion shown in yellow in the site plan Ex. PW 1/1.... It is incorrect to suggest that we are liable to pay damages to mense profit at Rs. 20/ per day since the date of the plaintiffs being dispossessed till the possession restored back to them. It is incorrect to suggest that we are liable to pay a sum of Rs. 3082/ being costs of the goods stolen / removed while taking possession.
Sh. Jaswant Rai has been examined as DW3.1 and he has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by defendant no. 3 in the Written Statement and has proved the copy of the sale deed as Ex. PW 3/1. The relevant part of the cross examination of DW 3 reads as under:
Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. " I claim to have purchased shop no.1 in property no. 335 and 335/5 which is a Chaubara / room at first floor. I purchased the said property stated herein before from one Sh. Nathu Ram and had verified the title documents in his favour.... I had obtained the sale deed executed in favour of Sh. Nathu Ram at the time of purchase of the suit property. ... I have seen Ex. DW 1/A, the same is the certificate of sale in favour of Sh. Chela Ram... I have exclusive rights with respect to the dalan above my shop.... I came in possession of 335/1 at the time of its purchase. Q. On what basis have you stated the plaintiff are neither the owners nor they have any right title or interest in respect any portion of the property in dispute?
A. I have got no dispute with the plaintiff. The said statement was made on my personal knowledge to the effect that plaintiff do not possess any title deed or any rent agreement in their favour... ... It is incorrect to suggest that as per the records maintained with the custodian and even otherwise the plaintiff had been in actual physical possession of the portion shown in yellow colour forming a part of property no. 335 since 199 till the intervening night of 2324 July 1985...."
The last witness examined on behalf of defendants is DW 4 Sh. Nem Chand and he has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by defendants in the Written Statement. The relevant part of the cross examination of DW 4 reads as under :
"The statement made by me in paragraph 2 of my affidavit to an Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. effect that property bearing no. 335, 335/1 to 335/15 was originally owned by custodian has been made by me on the basis that the said property was auctioned by custodian.... It is incorrect to suggest that Chela Ram purchased property no. 335/1 to 335/15 and not property no. 335. Vol. Property no. 335 covers all the aforesaid mentioned property and is not separate property.... The basis of my statement to the effect that plaintiffs have never used private Stair Case (Jeena) No. 3 because there is a huge muca (daldal) acculated under the Jeena. Vol. I have a key of that Jeena..... I cannot say if the plaintiffs are in possession of the entire first floor. I cannot say that if the plaintiffs are in possession of the entire first floor of the property bearing no. 335 and 335/5. vol. There is no property bearing no. 335 and there are locks on the said portions...
So far as the law regarding the adverse possession is concerned, the same is well settled. In Saroop Singh v. Banto and Ors. (2005) 8 SCC 330, Apex Court held :
"In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. ......."Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus.
Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. The said statement of law was reiterated in T. Anjanappa and Ors. v. Somalingappa and Anr. 2006) (8) Scale 624 : (2006) 7 SCC 570, stating :
"It is wellrecognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
Yet, in P. T. Munichikkanna Reddy and Ors. v. Revamma and Ors. (2007) 6 SCC 59, Apex Court noticed the development of law in other jurisdiction in the context of property as a human right to opine:
"Therefore, it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights."
Again Supreme Court in M. Durai v. Muthu and Ors. (2007) 3 SCC 114, noticed the changes brought about by Limitation Act, 1963, visavis, old Limitation Act, & held:
"The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 visavis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
So it is very clear from above discussion that claim by adverse possession has two elements :
(1) The possession of the defendant should become adverse to the plaintiff; and (2) The defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession.
It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.
In "P. T. Munichikkanna Reddy v. Revamma" AIR 2007 SC 1753 it was held that adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and wilful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. genuine desire to dispossess and step into the shoes of the paperowner of the property.
On careful perusal of the testimonies of the witnesses examined by the plaintiffs, pleadings of the parties and the entire material on record, I am of the opinion that the plaintiffs have utterly failed to prove on record that Sh. Roshan Lal and Sh. Om Parkash were the allottees of the property in question by the custodian department. Ld. counsel for the plaintiffs has strongly relied upon the survey report Ex. PW 3/1. It is true that the aforesaid survey report mentions the names of Sh. Roshan Lal, Desh Raj and Sh. Zile K. Raj s/o Sh. Rakhab Dass but the plaintiffs have utterly failed to prove on record that Sh. Roshan Lal and Sh. Om Parkash ever possessed the Animus possidendi and held the suit property adverse to the title of the true owners. I am of the opinion that even if the submission of Ld. counsel for the plaintiff is taken be true that the plaintiffs have been able to show their continuous and interrupted possession right from the year 1949 till 1985, then also the plaintiffs have failed to prove the animus possidendi, which is one of the material ingredients in order to obtain the relief by way of adverse possession. The settled law is that the animus possidendi must be shown to exist at the commencement of the possession and mere existence of animus possidendi at the later stage is not enough but the same must be shown at the commencement of the possession, as has been held in the aforesaid authorities. In the case in hand, I am of the opinion that the plaintiffs have utterly failed to prove on record that there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paperowner of the property.
In the light of the aforesaid discussion, I have no hesitation to hold that the plaintiffs have not been able to prove their case on the plea of adverse Contd...
Page No. Page numbers Suit No. 1194/2008 Kunti Devi etc vs. Chela Ram etc. possession. Since the plea of adverse possession is the crux of controversy in the present suit and all the reliefs sought for by the plaintiffs are dependent upon the aforesaid plea of ownership by way of adverse possession, the plaintiffs are not entitled for any of the reliefs claimed in the present suit. As such, plaintiffs have failed to prove all these issues in their favour.
Accordingly, issue nos. 1, 2, 3, 4 & 7 are decided against the plaintiffs and in favour of the defendants.
ISSUE Nos. 5 & 6 : The plaintiffs have claimed themselves to be the owner of the suit property by way of adverse possession stating therein that they have been in continuous and interrupted possession of the suit property right from 1949 till 1985 and their possession is hostile to the entire world including the true owners. As such, I am of the opinion that the plaintiffs have the locusstandi to file the present suit and the defendants have failed to point out as to how the plaintiffs do not possess the locusstandi and cause of action to file the present suit.
Accordingly, issue no. 5 is decided in faovur of the plaintiffs and against the defendants.
Now coming to issue no. 6, the present suit is a suit for recovery of possession, damages and injunction. For the relief of possession the plaintiffs have valued the suit at Rs.21,000/ and for the reliefs of mandatory and permanent injunction the suit has been valued at Rs. 130/. The defendants have taken an objection in their Written Statements that the suit has not been valued properly but the defendants have failed to point out as to how the suit has not been valued properly for the purposes of court fees and jurisdiction.
Accordingly, issue no. 6 is also decided in favour of the plaintiffs Contd...
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Kunti Devi etc vs. Chela Ram etc.
and against the defendants.
ISSUE No. 8 :
The defendants have taken an objection in the Written Statement that the suit of the plaintiffs is bad for nonjoinder and misjoinder of the necessary parties but neither n the evidence led by the defendants nor during the course of arguments Ld. counsel for the defendants has pointed out as to how the present suit is bad for nonjoinder and misjoinder of the necessary parties.
Accordingly, this issue is also decided in favour of the plaintiffs and against the defendants.
Relief : In view of my findings under the foregoing issues, the suit of the plaintiff is bound to fail and as such the suit of the plaintiff is hereby dismissed.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court today on 06th Day of May, 2010.
(RAJ KUMAR) ADMINISTRATIVE CIVIL JUDGE cum ADDL RENT CONTROLLER (NORTH) DELHI Contd...