Delhi District Court
Sh. Mohinder Singh S/O Late Ghasi Ram ... vs Sh. Darshan Singh S/O Sh. Harnam Singh ... on 7 February, 2011
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-ASCJ-CUM-
GUARDIAN JUDGE (WEST): DELHI
Suit No. 194/08
Unique Case ID No. 02401C0128702002
1. Sh. Mohinder Singh S/o Late Ghasi Ram (Since deceased)
Through his LR's
1A. Smt. Mukhtiari Devi W/o Late Mohinder Singh
1B. Sh. Anoop Singh S/o Late Mohinder Singh
1C. Smt. Phool Kumari D/o Late Mohinder Singh
1D. Smt. Sunita D/o Late Mohinder Singh
All R/o WZ-117, Shadipur,
New Delhi - 110008.
1E. Sh. Sahib Singh S/o Late Mohinder Singh (Since deceased)
Through his LR's
1E1. Smt. Sudha W/o Late Sahib Singh
1E2. Master Atul (Minor)
1E2. Miss Ajali (Minor)
All R/o 2962, Gali no.12,
Ranjit Nagar, New Delhi - 110008
2. Sh. Umed Singh S/o Sh. Ghasi Ram
R/o WZ-117, Shadipur,
New Delhi - 110008.
3. Sh. Sube Singh S/o Sh. Ram Swaroop
R/o WZ-124, Shadipur,
New Delhi-110008. ......Plaintiffs
Versus
1. Sh. Darshan Singh S/o Sh. Harnam Singh (Since deceased)
Through his LR's
1A. Smt. Prasanna Kaur W/o Late Darshan Singh
1B. Sh. Inderjeet Singh S/o Late Darshan Singh
1C. Sh. Balbir Singh S/o Late Darshan Singh
1D. Sh. Surjeet Singh S/o Late Darshan Singh
1E. Sh. Satnam Singh S/o Late Darshan Singh
All R/o WZ-108, Plot no.99,
Ravi Nagar, New Delhi
2. Sh. Krishan Lal S/o NOT KNOWN
3. Sh. Vijay Kumar S/o Sh. Kundan Lal
Suit No. 194/08 Page 1 /33
All R/o H. No.3348, Ranjit Nagar,
New Delhi - 110008. .....Defendants
Date of institution of the suit : 30.01.1991
Date of reserving order : 21.01.2011
Date of pronouncement : 07.02.2011
JUDGMENT
1. The plaintiffs had instituted a suit for possession in respect of 75 square yards of land underneath the property no. 3348, Ranjit Nagar, New Delhi (Hereinafter referred as 'the suit land') as shown in red in the site plan and forming part of Khasra no.408 in the Abadi of Ranjit Nagar, Village Shadi Pur, New Delhi by removing the super-structure standing thereupon and a decree of Rs. 180/- as damages for the period from 01.02.1988 to 31.12.1990. The plaintiffs have also prayed for a decree of mandatory injunction directing the defendants to remove the super-structure standing on the suit land and a decree for permanent injunction restraining the defendant no.1 from selling, alienating, mortgaging, parting with the possession, or otherwise creating third party rights in respect of the suit to the defendant no.2 and 3.
2. The case set out in the plaint is that the plaintiff is the owner of the suit land vide registered sale deed dated 15.06.1957. The plaintiff had been in actual physical possession of the suit land and she had raised a boundary wall around it and installed a gate therein.
3. The case of the plaintiff is that the defendant wrongfully, illegally and without her consent occupied the suit land in the year 1970 and raised some temporary structure over it. The plaintiff made several written and verbal requests to the concerned Suit No. 194/08 Page 2 /33 officials of the defendant but to no avail. The plaintiff had served a notice under section 80 of the CPC and section 478 of the DMC Act upon the defendant vide notice dated 21.09.1991. The defendant neither replied the said notice nor delivered possession of the suit land. The plaintiff has claimed damages @ Rs. 2,000/- per month for wrongful use and occupation of the suit land. The plaintiff filed this suit for possession and damages against the defendant after expiry of two month's statutory period.
4. In its written statement, the defendant contended that the suit is not maintainable for want of statutory notice under section 478 of the Delhi Municipal Corporation Act ('the DMC Act'). The plaintiff has no right or title in the suit land. The plaintiff is not the owner of the suit land. The plaintiff has submitted fake sale deed to grab MCD land. The plaintiff has not been in actual possession of the suit land. The MCD is the owner of the suit land. The suit land is the property of the MCD. The defendant has actual possession of the suit land. It has been running M. C. Primary School, Shiv Nagar, Hari Nagar, Delhi on the suit land since 1959. The suit land is part and parcel of the land of the school and the defendant has raised a boundary wall around its land. The plaintiff has no concern with the suit land. The claim of the plaintiff is belated.
5. In the replication, the plaintiff controvert-ed the averments made in the written statement. The plaintiff denied that the defendant is the owner of the suit premises.
6. Vide order dated 07.02.1995, the Court had framed a preliminary issue as to "whether the suit of the plaintiff is not Suit No. 194/08 Page 3 /33 barred by limitation?"
7. Vide statement recorded on 19.02.1996, Sh. M. S. Puri, Attorney of the plaintiff admitted the version of the defendant, as stated in para no.3 of the written statement, to the effect that the defendant is in possession of the suit land since 1959.
8. Vide judgment dated 02.03.1996, the said preliminary issue was decided against the plaintiff and the suit was held barred by time and accordingly, the suit was dismissed.
9. The plaintiff preferred an appeal against the said judgment dated 02.03.1996. Ld. Appellant Court vide order dated 29.04.1998 in RCA-14/1998 set aside the said judgment and remanded the case for fresh trial with the direction to the trial court to frame all the issues and afford opportunity to the parties to lead evidence.
10. The defendant had challenged the said order dated 29.04.1998 by filing CRP No.79/1999. The said Revision petition was dismissed by the Hon'ble High Court of Delhi vide order dated 15.03.2004 with the observation that question of limitation is a mixed question of law and fact which cannot, therefore, be determined and decided only on its own.
11. Events did not rest here. On 10.03.199, the defendant filed an application under Order 6 Rule 17, CPC in order to incorporate the plea that the defendant became owner of the suit land by way of adverse possession since 1971 as it was running a primary school on the suit land since 1959 without any interruption.
Suit No. 194/08 Page 4 /3312. Vide order dated 11.12.2000, the court dismissed the said application of the defendant under Order 6 Rule 17, CPC.
13. The defendant had preferred C.R.No.601/2001 against the said order dated 11.12.2000. Hon'ble High Court vide order dated 16.07.2003 set aside the said order and allowed the application of the defendant for amendment of the written statement subject to cost of Rs.5,000/-.
14. On 26.05.2004, the defendant filed his amended written statement.
15. On 11.08.2005, the plaintiff filed an application under Order 6 Rule 18, CPC for striking off the amended written statement on the ground that the amended written statement was filed after 14 days from the date of the order without seeking extension of time.
16. Vide order dated 12.01.2006, the said application was allowed and amended written statement was taken off from the record.
17. The defendant had challenged the said order by way of CM (M) No.377/2006. Hon'ble High Court dismissed the said petition vide order dated 28.07.2006 with costs of Rs. 7,500/-.
18. On 31.01.2006, the plaintiff filed an application under Order 14 Rule 5, CPC for deleting issue no.7 respecting plea of adverse possession in view of striking off of the amended written statement.
19. Vide order dated 04.12.2007, the said application under Order 14 Rule 5, CPC was allowed with the observation that MCD Suit No. 194/08 Page 5 /33 can adduce evidence in support its case that it is the owner of the suit premises as stated in para no.4 of P.O. of written statement.
20. On the basis of aforesaid pleadings of the parties, following issues were framed on 10.08.2005:
1. Whether the plaintiff is entitled to the relief of possession, as prayed for? OPP
2. Whether plaintiff is entitled for recovery of amount of damages, as prayed for? OPP
3. Whether the plaintiff is entitled to recover future damages, as prayed for? OPP
4. Whether the plaintiff is entitled to any interest on the said amount and if so, at what rate and for what period? OPP
5. Whether the suit of the plaintiff is within the period of limitation? OPD
6. Whether the suit of the plaintiff is barred under section 477/478 of the DMC Act? OPD
7. Whether the MCD has become owner of the suit land by way of adverse possession as stated in para no.4 of the preliminary objections of amended written statement?
OPD
8. Relief.
21. In the evidence, the plaintiff stepped into the witness box as PW-1 and examined Sh. Harmohinder Singh Birgi as PW-2. PW-1 proved sale deed dated 15.06.1957 Ex.PW-1/1 (original sale deed is Ex.PW-2/B), Site Plan of the suit property Ex.PW-1/2, Certified copy of Khasra Girdwari Ex.PW-1/3, Letter dated 25.01.1968 issued by the Town planning Department of MCD Ex.PW-1/4, Notice dated 27.04.1979 Ex.PW-1/5 and returned AD cards Ex.PW-1/6 to Suit No. 194/08 Page 6 /33 Ex.PW-1/8, Notice dated 21.09.1991 Ex.PW-1/9 and Postal Receipt thereof Ex.PW-1/10 and returned AD card Ex.PW-1/11.
22. The defendant/MCD examined Sh. Om Prakash Yaduvanshi, Deputy Education Officer, West Zone, MCD as DW-1. He proved Admission Register Ex.DW-1/1, Teacher's Attendance Register Ex.DW-1/2, Assessment Order Ex.DW-1/3, Layout plan of the are in question Ex.DW-1/4 and Letter dated 11.03.2005 of Town Planning Department Ex.DW-1/5.
23. I have heard Sh. S. K. Bhalla, Adv. for the plaintiff and Sh. Umesh Gupta, Adv. for the defendant/MCD and perused the file.
24. On careful assessment of evidence on record in the light of arguments addressed by Ld. Counsel for the parties, issue wise finding is as under:
Issue no.6:
25. Issue no.6 relates to maintainability of the suit and therefore, taken up for determination first.
26. The defendant in its written statement raised a preliminary objection that the suit is not maintainable for want of statutory notice under Section 477 and 478 of the DMC Act. The case of the plaintiff is that the present suit was filed after serving two statutory notice vide notice dated 21.09.1991.
27. Ld. Counsel for the defendant contended that the plaintiff has failed to prove service of two month's notice upon the MCD Suit No. 194/08 Page 7 /33 before filing of the suit. He argued that PW-1 could not state that date and month of the issuance of the said notice nor mode of service nor name of her counsel who had sent the said notice. He argued that the suit is barred under Section 477 and 478 of the DMC Act.
28. Ld. Counsel for the plaintiff argued that the plaintiff had sent a notice dated 21.09.1991 Ex.PW-1/9 to the MCD vide Registered AD Post Ex.PW-1/10. He argued that said notice was duly served upon the MCD on 23.09.1991 vide returned AD Card Ex.PW-1/11. He argued that the plaintiff had sent the said notice through her counsel. He argued that the plaintiff (PW-1) categorically testified that the said notice was sent through her counsel in 1991 through post. He argued that DW-1 admitted that returned AD card Ex.PW-1/11 bears seal of the MCD and addresses of the MCD on Ex.PW-1/9 and Ex.PW-1/11 are same. He argued that the plaintiff filed the present suit after expiry of statutory period of two month's from the date of service of the said notice and therefore, the suit is not barred under Section 477 and 478 of the DMC Act.
29. The plaintiff has proved notice dated 21.09.1991 Ex.PW-1/9. The said notice was addressed to the defendant/MCD through its commissioner. The plaintiff had sent the said notice through her counsel vide registered AD post Ex.PW-1/10. The said notice was duly served upon the defendant as evident from returned AD card Ex.PW-1/11. Inability of the plaintiff to state the date and month of issuance of the notice and name of counsel and mode of service are insignificant omissions. It is evident from reading of the said notice that the plaintiff has mentioned explicitly cause of action, the nature of relief sought, the amount of the compensation Suit No. 194/08 Page 8 /33 claimed and name and place of residence of the plaintiff and further, the plaint contains a concise statement that such notice has been delivered. The present suit instituted after expiration of two months after delivery of notice in writing, is not within the mischief of section 478 of the DMC Act. Accordingly, the issue no.6 is decided in favour of the plaintiff and against the defendant/MCD.
Issue no.1 to 5 and 7:
30. Issue no.1 to 5 and 7 are inter-connected and therefore, they are taken up together for determination.
31. Ld. Counsel for the plaintiff contended that that the plaintiff has filed the suit for possession against the defendant on the basis of title. He argued that the plaintiff (PW-1) has proved Sale deed Ex.PW-1/1 and Khasra Girdawari Ex.PW-1/3 in respect of the suit land. He argued that the sale deed dated 15.06.1957 Ex.PW-1/1 (original sale deed is Ex.PW-2/B) is a thirty years old document and there is statutory presumption of due execution under section 90 of the Indian Evidence Act. He argued that PW-2 proved the execution and signatures of Sh. Tirath Singh, witness to the execution of the said sale deed. He argued that the plaintiff has proved her title in respect of the suit property. He argued that the defendant neither pleaded nor proved its title to the suit land.
32. Learned counsel for the plaintiff argued that the defendant cannot be allowed to agitate the plea of adverse possession as the amended written statement was taken off from the record vide order dated 12.01.2006 and the said order was confirmed by the Hon'ble High Court of Delhi vide order dated 28.07.2006 in C.M. Suit No. 194/08 Page 9 /33 (M) No.377/2006 and consequently, issue no.7 was deleted vide order dated 04.12.2007. He argued that the defendant has not pleaded in its original written statement that it has become owner of the suit land by way of adverse possession and in the absence of specific pleadings, the period of limitation of 12 years as provided under Article 65 of the Limitation Act will not run against the plaintiff for filing this suit for possession against the defendant.
33. Ld. Counsel for the plaintiff further argued that the defendant has contended in its written statement that it is in possession of the suit land and it is running a primary school on the suit land since 1979. He argued that mere possession, however, long does not necessarily mean that it is adverse to the true owner. He argued that the defendant wrongfully, illegally and without the consent of the plaintiff had occupied the suit land in the year 1970 and raised some temporary structure over it. He argued that the defendant was served with a notice dated 21.01.1991 Ex.PW-1/9 containing concise statement of the case of the plaintiff but the defendant neither replied nor delivered the possession of the suit land. He argued that the defendant is an unauthorized occupant of the suit land and therefore, the defendant is liable to pay damages @ Rs.2,000/- per month for wrongful use and occupation of the suit land. He argued that the defendant wrongfully deprived the plaintiff from use and enjoyment of the suit land and therefore, the plaintiff is entitled to interest on the damages due and awarded.
34. Ld. Counsel for the defendant contended that the plaintiff has failed to prove her title in respect of the suit land. He argued Suit No. 194/08 Page 10 /33 that the sale deed Ex.PW-1/1 has not been proved in accordance with law. He argued that the plaintiff (PW-1) in her cross- examination admitted that she does not know contents of the said sale deed. He argued that the plaintiff could not state the date of execution or registration of the said sale deed. He argued that the plaintiff has failed to prove the title/ownership of transferor. He argued that PW-2 was not a witness to the execution of the said sale deed. He argued that PW-2 was 12 years old at the time of execution of the sale deed and he is related to the plaintiff and therefore, his testimony cannot be relied upon.
35. Ld. Counsel for the defendant argued that the plaintiff has not examined any other witness to prove execution of the sale deed and therefore, the sale deed has not been proved as per law. He argued that the defendant has proved assessment of the suit land in the name of Education Officer of the MCD since 01.04.1963 vide Ex.DW-1/3. He argued that DW-1 has not been cross- examined on this aspect and therefore, it can be inferred that the plaintiff has admitted the fact that suit land has been assessed in the name of Education Officer since 01.04.1963. He argued that the plaintiff has failed to prove the site plan Ex.PW-1/2 of the suit land. He argued that the plaintiff could not state as to when and from whom she had got the site plan prepared. He argued that plaintiff was not even aware about the contents of the documents filed by her and therefore, the documents Ex.PW-1/1 to 14 cannot be held proved.
36. Ld. Counsel for the defendant further argued that the defendant has proved layout plan of the area in question Ex.DW-1/2. He argued that as per layout plan Ex.DW-1/2, the suit land if part of the land of MC Primary School. He argued that the Suit No. 194/08 Page 11 /33 plaintiff has not challenged the authenticity and correctness of the layout plan. He argued that the layout plan Ex.DW-1/2 and assessment of the suit land in the name of the defendant since 1963 clearly prove that the MCD is the owner of the suit land.
37. Ld. Counsel for the defendant argued that the defendant is not barred from raising the plea of adverse possession. He argued that Delhi High Court in its order dated 16.07.2003 in C.R. 601/2001 observed that the proposed amendment was more or less clarificatory in nature. He argued that the defendant is entitled to demonstrate that the suit of the plaintiff is not within limitation.
38. Ld. Counsel for the defendant finally argued it has been running M.C. primary school over the suit land since 1959. He argued that the plaintiff has stated in the para no.3 of the plaint that the defendant wrongfully, illegally and without the consent of the plaintiff, occupied the suit land in the year 1970 and raised a temporary structure over it. He argued that Sh. M. S. Puri, Special Attorney of the plaintiff had made a statement on oath on 19.02.1996 that the defendant is in possession of the suit land since 1959. He argued that the combined reading of the averments made in the para no.3 of the plaint and statement made by Sh. M. S. Puri, Special Attorney of the plaintiff prove that the defendant's possession over the suit land is neither permissive nor authorized. He argued that the defendant is in hostile and forcible possession of the suit land since 1959 and therefore, the defendant has become owner of the suit land by way of adverse possession after passage of 12 years w.e.f. 1959 in 1971. He argued that Article 65 of the limitation Act provides that the Suit No. 194/08 Page 12 /33 limitation for suit for possession of immovable property based on title is 12 years from the date when the possession of the defendant become adverse to the plaintiff. He argued that the possession of the defendant had become adverse to the plaintiff in 1959 and therefore, the present suit filed on 28.01.1992 was barred by time. He argued that the suit was filed after 21 years from the date when the possession of the defendant had become adverse to the plaintiff. He argued that the suit is liable to be dismissed as the defendant has become owner by way of adverse possession in 1971 and the present suit is not within period of limitation. He argued that the plaintiff is not entitled to seek possession of the suit land and damages from the defendant and prayed for dismissal of the suit with costs.
39. In so far as contention that there is no property bearing no. G-59, Shiv Nagar, Hari Nagar, New Delhi is concerned, it can be noted that the defence witness (DW-1) stated in his affidavit in examination-in-chief that the defendant is running M.C.Primary School, Shiv Nagar, Hari Nagar, New Delhi in the property no.G-59, Shiv Nagar, Hari Nagar, New Delhi. DW-1 further deposed that the property no.WZ-50 to 67, G-Block, Hari Nagar presently known as Shiv Nagar including the suit land assessed in the name of Education Officer, MCD, West Zone, Delhi since 01.04.1963. In his cross-examination, DW-1 deposed that the defendant is in possession of two plots namely G-59 and G-60. Therefore, it is evident that the plaintiff has given correct description of suit land.
40. In so far as contention that the plaintiff has failed to prove the site plan of the suit land Ex.PW-1/2 is concerned, it can be noted that the defence witness in his cross-examination stated Suit No. 194/08 Page 13 /33 that he has seen the site plan and it is correct according to site.
41. In so far as contention of the defendant that the plaintiff has not given Khasra number of the suit land nor filed any Girdawari is concerned, it can be noted that the plaintiff has proved on record Khasra Girdawari of the suit land Ex.PW-1/3 pertaining to year 1992 to 1994 wherein the plaintiff has been shown in possession of 200 square yards of land (0-4) comprising in Khasra no.806/23 situated in the village Tihar, Tehsil Mehrauli, Delhi. The plaintiff has deposed in her cross-examination that the suit land falls in khasra no.806. Mere fact that the plaintiff could not tell the name of the village is inconsequential in the presence of documentary evidence Ex.PW-1/3.
42. The plaintiff's case is that she had purchased the suit land from its previous owner Smt. Mayawati vide sale deed 15.06.1957 Ex. PW1/1. The defendant's case is that the plaintiff has no right, title or interest in the suit land and the said sale deed is fake and fabricated and further, that the plaintiff has not proved sale deed Ex.PW-1/1 in accordance with law, and she has not examined any witness besides PW-2 to prove execution of the sale deed.
43. The plaintiff has placed on record original sale deed as Ex.PW-2/B. It is a registered document. Sale deed Ex.PW-2/B is a more than thirty year old document. Section 90 of the Indian Evidence Act provides that presumption of the genuineness of a document can be raised if the document is 30 years old and produced from a proper custody. Section 90 reads as under:
Suit No. 194/08 Page 14 /33"Presumption as to document thirty years old: Where any document, purporting or proved to be thirty years old, is produced from any custody which the court in the particular case considers proper the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and, in the case of a document executed or attested that it was duly executed and attested by the persons by whom it purports to be executed and attested."
"Explanation: Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be, but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."
44. The Supreme Court in Sri Lakhi Baruah Vs. Sri Padma Kanta Kalita, AIR 1996 SC 1253 held in para no.15 of the judgment that:
"Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signatures or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private document. Presumption of genuineness may be raised if the document in question is produced from property custody. It is however, the discretion of the court to accept the presumption Suit No. 194/08 Page 15 /33 flowing from Section 90. There is, however, no manner of doubt that judicial discretion under section 90 should not be exercised arbitrarily and not being informed by reasons."
45. Let us consider whether the presumption emanating from section 90 of the Evidence Act is available to the plaintiff. The principle underlying section 90 is that if an ancient document thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the court may presume that it has been duly executed and attested. If the twin conditions enumerated in the section 90 are fulfilled, then in relation to such document, the necessity of formal proof is waived. It is, however, within the discretion of the court whether to accept or not to accept the presumption flowing from section 90. Of course, the judicial discretion under section 90 of the Act cannot be exercised arbitrarily and unreasonably without due consideration of material on record.
46. In the present case, the original sale deed Ex.PW-2/B has been produced on record by the plaintiff. The sale deed is a registered document. The sale deed was registered with Sub- Registrar, Kashmere Gate, Delhi on 15.06.1957. The sale deed Ex.PW-1/1 (original thereof is Ex.PW-2/B) is a more than thirty year old document. The document has been produced from proper custody. The plaintiff has proved Khasra Girdawari Ex.PW-1/3 of the suit land wherein the suit land is recorded in the name of the plaintiff. The plaintiff has fulfilled twin conditions for raising presumption of due execution of the sale deed in question. Perusal of the document Ex.PW-2/B shows that it is an ancient document.
Suit No. 194/08 Page 16 /3347. The Town Planning Department of the defendant had issued a letter dated 01.02.1968 Ex.PW-1/4 that arrangement were being made to acquire the suit land for community purposes and for payment of compensation or alternative plot to the plaintiff. The plaintiff had sent a notice dated 24.04.1979 Ex.PW-1/5 through her counsel to the defendant stating therein that she is the owner of the suit land and the defendant had wrongfully occupied the suit land and called upon the defendant to handover vacant possession of the suit land. The defendant had not replied the said notice despite service. There is no reason for not raising presumption of due execution of sale deed under section 90 of the Evidence Act.
48. Therefore, in the opinion of this court a valid presumption of the genuineness of the sale deed Ex.PW-2/B can be raised and it was for the defendant to rebut the said presumption by leading evidence in this regard. No such evidence has been led by the defendant and therefore, the sale deed is held duly proved.
49. The defendant has also failed to elicit any contradiction in the cross-examination of the plaintiff and her witness PW-2. Sh. Tirath Singh was a witness to the execution of the said sale deed. The plaintiff had filed affidavit of Sh. Tirath Singh in evidence on 31.01.2006 but he died on 22.01.2008 and therefore, the plaintiff examined his son Sh. Harmohinder Birgi as PW-2. He has identified signature of his father Sh. Tirath Singh at point 'A' of the sale deed Ex.PW-1/1 (original sale deed is Ex.PW-2/B). He deposed that that the sale deed was got registered at the office of Sub- Registrar, Delhi. He deposed that the said sale deed was written in Suit No. 194/08 Page 17 /33 his presence. In his cross-examination, he deposed that he was present at the time of registration of the sale deed. He deposed that Smt. Mayawati, her husband, Sh. Tirath Singh, Kartar Singh, the plaintiff and 2-3 persons were present at that time.
50. In so far as contention of the defendant that the plaintiff has not stated the date of execution of sale deed and she does not know contents of the sale deed is concerned, it can be noted that the plaintiff has categorically stated that the sale deed was executed in the year 1957 and the sale deed was registered at the office of Sub-Registrar, Kashmere Gate, Delhi. One cannot expect a person to remember minute details of the documents after more than 30 years. In so far as contention that PW-2 does not know contents of the sale deed and he was merely 12 years old and related to the plaintiff and therefore, his evidence should be discarded is concerned, it can be noted that PW-2 has identified signatures of his father who was a witness to the sale deed. His testimony cannot be discarded solely on the ground that he is related to the plaintiff. He was present at the time of preparation and registration of the sale deed. There is no infirmity in the deposition of this witness.
51. The defendant has neither averred in his pleadings nor in his evidence that who else was the owner of the suit land if not the plaintiff. It is also not the case of the defendant that Smt. Mayawati had no title in the suit land and she could not have sold the same to the plaintiff. Moreover, DW-1 stated that he had not inspected the record of the Sub-Registrar Office to verify the authenticity or genuineness of the sale deed Ex.PW-2/B in respect of the suit land filed by the plaintiff. He deposed that he cannot say as to who was the owner of the suit land in the year 1959. He Suit No. 194/08 Page 18 /33 deposed that they have never tried to find the real owner of the suit land.
52. Contention that the layout plan Ex.DW-1/4 and Assessment of house tax in the name of the Education Officer since 01.04.1963 Ex.DW-1/3 prove that the defendant is the owner of the suit land cannot be accepted. Layout plan showing the suit land as school site and Assessment of the suit land in the name of the defendant do not confer any right, title and interest in the suit land.
53. It is not the case of the defendant that the suit land the suit land was ever acquired and transferred to the MCD for community purposes or school. DW-1 deposed that there is no record pertaining to acquisition of the suit land for the purpose of building school.
54. The execution of the sale deed Ex. PW1/1 (original thereof is Ex.PW-2/B) by Smt. Mayawati in favour of the plaintiff is proved beyond doubt. Therefore, it stands proved that the plaintiff is the owner of the suit land by virtue of sale deed Ex. PW1/1. The defendant has no right, title or interest in the suit land.
55. In L. N. Aswathama v. P. Prakash, 2009 AIR SCW 5439 held in the para no.13 that "In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit. In Saroop Singh v. Banto (2005) 8 SCC 330 held that where the plaintiffs have proved their title and, thus, it was for the first Suit No. 194/08 Page 19 /33 defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. In M. Durai v. Muthu and Others (2007) 3 SCC 114"... 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."
56. It is the case of the plaintiff that the defendant cannot be allowed to raise the plea of adverse possession in view of striking out of amended written statement vide order dated 12.01.2006 and deletion of issue no.7 with regard to plea of adverse possession vide order dated 04.12.2007.
57. The case of the defendant is that the defendant is entitled to raise plea of adverse possession to clarify as to how it became owner of the suit land. Ld. Counsel for the defendant contended that plaintiff admitted in para no.3 of the plaint that the defendant had wrongfully, illegally and without her consent occupied the suit land in the year 1970 and further, Sh. M.S.Puri, Special Attorney of the plaintiff had made a statement on 19.02.1996 that the defendant is in possession of the suit land since 1959.
58. Further, the defendant is running a primary school over the suit land since 1959 and the possession of the defendant was neither permissive nor authorized and therefore, the possession of the defendant was hostile to the plaintiff and therefore, the defendant has become owner of the suit land by way of adverse possession in 1971 and the suit filed on 28.01.1992 is barred by limitation as provided under Article 65 of the Limitation Act.
Suit No. 194/08 Page 20 /3359. It is well settled that the defendant cannot be allowed to raise plea of adverse possession in the absence of specific pleadings. In V. Laxminarasamma v. A. Yadaiah, 2009 AIR SCW 2304; Hon'ble Supreme court held in the para no.36 of the judgment that the plea of adverse possession must expressly be raised and established. In Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale, 2009 AIR SCW 3592, it was held in the para no.23 of the judgment that for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession. The Supreme Court in D.N. Venkatarayappa and Another v. State of Karnataka and Ors (1997) 7 SCC 567;
"Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."
60. In Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Ors. (2004) 1 SCC 271, it was held in paras 21-22 that "For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi. In a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession Suit No. 194/08 Page 21 /33 has been raised in the written statement or not which can also be gathered from cumulative effect of the averments made therein. The Supreme Court inn Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 held in para 11 that 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. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2008 AIR SCW 6996 held in para no.32 of the judgment that "the appellants at no stage had set up the case of adverse possession, there was no pleading to that effect, no issues were framed, but even then the trial court decreed the suit on the ground of adverse possession. The trial court judgment being erroneous and unsustainable was set aside by the first appellate court. We endorse the findings of the first appellate court upheld by the High Court."
61. The case of the plaintiff is that the defendant had wrongfully, illegally and without her consent occupied the suit land in the year 1970 and raised a temporary structure over it. The plaintiff (PW1) clearly deposed in her examination-in-chief that she learnt about the wrongful occupation by the defendant sometime in 1970 in her absence and without her knowledge. In her cross-examination, she stated that she came to know about running of school by MCD in the year 1970 only when she had returned to Delhi.
62. In so far as contention of the defendant that M.S.Puri, Special Attorney of the plaintiff made statement on 19.92.1996 that defendant is in possession of the suit land since 1959 is concerned, it can be stated that the plaintiff is not bound by statement made by her Special Attorney. Further, the defendant Suit No. 194/08 Page 22 /33 has not even given a suggestion to the plaintiff in her cross- examination that she was aware that defendant is running a school over the suit land since 1959. It is evident, therefore, that the plaintiff came to know for the first time in the year 1970 that the defendant/MCD had trespassed over suit land and had taken the same in their possession.
63. The present suit for possession was filed on 28.01.1992. Besides averments made in the para no.3 of the plaint and statement of Sh. M. S. Puri, Special Attorney of the plaintiff recorded on 19.02.1996, the defendant has relied upon Admission register Ex. DW1/1 having an entry pertaining to an admission on 16.07.1959, Attendance register of the year 1959 Ex. DW1/2 and Assessment file Ex. DW1/3 that the suit land assessed in the name of Education Officer of the defendant in order to prove that the defendant has been running a primary school on the suit land since 1959 without any interruption, continuously and openly and therefore, the defendant has become owner of the suit land by way of adverse possession since 1971.
64. Ld. Counsel for the plaintiff stated that the defendant cannot avail plea of adverse possession as the defendant in its written statement contended that the plaintiff has no right or title in the suit land and the plaintiff is not the owner of the suit land. He argued that the defendant denied title of the plaintiff and therefore, the possession of the defendant cannot be hostile to the plaintiff.
65. Their Lordship in Secretary of State far India v. Debendra Lal Khan, AIR 1934 PC 23 observed that the ordinary Suit No. 194/08 Page 23 /33 classical requirement of adverse possession is that it should be nec vi, nee clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 held that "adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
66. The Supreme Court in T. Anjanappa v. Somalingappa (2006) 7 SCC 570) held in para no.12 of the judgment that "The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
67. The Supreme Court in Annakili v. A. Vedanayagam AIR Suit No. 194/08 Page 24 /33 2008 SC 346 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 know in a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of 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".
68. The Supreme Court in Saroop Singh Vs. Banto & Ors. (2005) 8 SCC 330 held in para no.29 and 30 that "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. (Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376. '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. (Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Others (2004) 1 SCC 277) Suit No. 194/08 Page 25 /33
69. In the present case, the defendant/MCD in its written statement has categorically denied the title of the plaintiff in respect of the suit land. The defendant stated that the sale deed Ex. PW1/1 is a false and fabricated document. Para no.2 and 3 of the preliminary objections and para no. of the reply on merits of the written statement are reproduced hereunder:
"Preliminary Objections:
1. That the plaintiff has no right or title in the disputed property and as such, the suit of the plaintiff is not maintainable.
2. That the plaintiff has submitted a fake sale deed as mentioned. As the plaintiff has no possession of the disputed property so the sale deed cannot be executed in the eyes of law.
Reply on merits:
1. That para no. 1 of the plaint is wrong and denied. It is submitted that the plaintiff is not the owner of the piece of land measuring 200 sq. yards, as alleged. It is submitted that disputed property is the property of MCD and the MCD school has been running over there since 1959. It is further submitted that the plaintiff has submitted a false registry by virtue of which he wants to grab the land of the MCD. It is further submitted that the plaintiff has not given any khasra no. or girdawari of the disputed property. It is further submitted that there is no property bearing Municipal no. G-59 in the disputed property."
70. It is apparent from the pleadings of the defendant that it Suit No. 194/08 Page 26 /33 never acknowledged the plaintiff as the owner of the suit land.
71. The defendant has nowhere stated in the written statement or in the evidence as to who else is the owner of the suit land, if not the appellants. DW1 has stated in para no. 7 of his affidavit by way of chief examination that the plaintiff is neither the owner of the suit property nor ever remained in possession of the same. In the cross-examination also, DW-1 deposed that he cannot say as to who was the owner of the suit land in the year 1970. He deposed that they have never tried to find out who is the real owner of the suit land till date. He deposed that the MCD is the owner of the suit land. He had no knowledge regarding sale transactions in respect of the suit land.
72. The possession of the defendant cannot be adverse to the plaintiff. The defendant challenged the right or title of the plaintiff in respect of the suit land. The defendant was not aware as to who else is the real owner of the suit land. The defendant cannot be said to have requisite animus to perfect its title to suit land by adverse possession. Therefore, the question of defendant being in hostile possession or denying the title of the true owner does arise at all when the true owner is not known. The possession of the defendant was never hostile i.e. a possession which is expressly or impliedly in denial of the title of the true owner. The defendant has failed to prove that he had perfected his title by way of adverse possession. The Supreme Court in Dharmarajan v. Valliammal, 2008 AIR SCW 155 held that "in order to substantiate the plea of adverse possession, the possession has to be open and adverse to the owner of the property in question. The evidence did not show this openness and adverse nature because it Suit No. 194/08 Page 27 /33 is not even certain as to against whom the adverse possession was pleaded on the part of Karupayee Ammal.
73. The Supreme Court in T. Anjanappa v. Somalingappa (supra) held that "The High court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise ............."
74. Mere possession, however, long would not ripe into adverse possession. The Supreme Court in S.M. Karim v. Bibi Sakina AIR 1964 SC 1254 held that long possession is not necessarily adverse possession....." In L. N. Aswathama v. P. Prakash (Supra), Hon'ble Supreme Court observed that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. In Md. Mohammad Ali (dead) by LRs v. Jagadish Kalita (2004) 1 SCC 271, their Lordships concluded that long and continuous possession by itself, it is trite, would not constitute adverse possession. In T. Anjanappa v. Somalingappa (supra), It was held that mere possession however long does not necessarily means that it is adverse to the true owner. The Supreme Court in Annakili v. A. Vedanayagam (supra) held that ".....It is now a well settled principle of law that mere possession of land would not ripen into possessory title for the said purpose. ......Mere long possession, it is trite, for a period of more than 12 Suit No. 194/08 Page 28 /33 years without anything more do not ripen into a title".
75. In so far as contention that the suit is barred by limitation is concerned, it can be noted that in a suit for recovery of possession on the basis of title, the limitation does not start running against the owner of the property till the defendant in the suit sets up any adverse title/ possession viz a viz the owner. The Supreme Court in Gaya Parshad Dixit Vs. Dr. Nirmal Chander AIR 1984 SC 930 held that under Article 65 of the Limitation Act, in a suit for possession by the owner, the question of limitation does not arise till the plea of adverse possession is established. In 1993 RLR 557 Liaq Mohd. Vs. DDA & Ors., the Delhi High Court relying on an earlier judgment reported as Delhi Cloth Mills Vs. Ganga Charan 1979 RLR 401 held that "The suit for possession on the basis of the title can be brought at any time and limitation does not commence to run against the title holder till the adverse possession is established in accordance with law against the title holder"
76. As already observed above, the plaintiff has a clear and absolute title of the suit land. The defendant has neither pleaded nor proved adverse possession for more than 12 years prior to the suit. Therefore, the limitation period as provided under Article 65 of the Limitation Act does not commence against the plaintiff for filling the suit for possession. Accordingly, the suit for possession is within limitation.
77. In P. T. Munichikkanna Reddy v. Revamma and Ors. (supra), the Supreme Court noticed the recent development of law in other jurisdiction in the context of property as a human right Suit No. 194/08 Page 29 /33 and observed that "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."
78. The Supreme Court again in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, AIR 2009 SC 103 reiterated that "the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession."
79. The plaintiff is the owner of the suit land. The defendant has claimed that they had occupied the suit land in the year 1959. The defendant has not stated as to in what capacity the defendant had occupied the suit land and under which circumstances. Admittedly, the land has never been acquired nor was it purchased by the defendant. The defendant is in unauthorized occupation of the suit land. The defendant has not vacated the suit land despite service of legal notice dated 21.09.1991 Suit No. 194/08 Page 30 /33 Ex.PW-1/9. In the considered opinion of this court, plaintiff is entitled to the decree of possession of the suit property. The plaintiff is also entitled to damages for wrongful use and occupation of the suit land.
80. The plaintiff has claimed damages @ Rs.2,000/- for use and occupation of the suit land besides the period from 01.01.1989 to 31.01.1992 and further, pendente lite and future damages at the said rate and interest on the amount due and awarded by the court. According to the plaintiff, damages @ Rs.2000/- per month was prevalent rate of rent in the market at the time of filing of the suit. In the cross-examination, she has stated that she rate of rent of the suit property was Rs.6,000/- to 7,000/- per month. DW1 has led no evidence regarding damages claimed by the plaintiff and rate of rent prevailing in the market at the time of filing of the suit. Suit land is a plot of land measuring 200 square yards and situated in a developed locality. The amount of damages claimed by the plaintiff is just and reasonable. The plaintiff had claimed the said amount in her legal notice dated 21.01.1991 Ex.PW-1/9 despite that the defendant neither delivered the possession and nor paid the said amount. The Court can also take judicial notice of astronomical increase in the rate of rents in Delhi in the last two decades.
81. This court is, therefore, hold that that the plaintiff is entitled to the damages @ Rs.2000/- per month for the period from 01.01.1989 to 31.01.1992 which comes to Rs.72,000/-. However, the plaintiff confined his claim in the suit to Rs. 65,000/-. The plaintiff shall be entitled to damages @ Rs.2,000/- from the date of filing of the suit till the defendant vacate the suit land. The defendant wrongfully deprived the plaintiff from his property and Suit No. 194/08 Page 31 /33 also not paid damages despite notice Ex.PW-1/9, therefore, the plaintiff shall also be entitled to pendente lite and future interest @ 12% per annum on the suit amount of Rs.65,000/- and further, interest at the said rate on the decretal amount if the defendant fails to make payment of damages within three months from today.
82. In view of the aforesaid discussion, issue no. 1 to 5 and 7 are decided in favour of the plaintiff and against the defendant/MCD.
Relief:
83. Accordingly, the suit for possession and damages filed by the plaintiff is decreed as under:
(a) A decree of possession in respect of land measuring 200 square yards bearing municipal no. G-59, Shiv Nagar, Hari Nagar, New Delhi as shown in red colour in the site plan Ex.PW-1/2 is passed in favour of the plaintiff and against the defendant.
(b) A decree for recovery of Rs.65,000/- on account of damages @ 2,000/- for the period from 01.01.1989 to 31.01.1992 along with pendente lite and future interest @ 12% per annum is passed in favour of the plaintiff and against the defendant.
(c) The plaintiff shall be entitled to the damages @ Rs.2000/- per month from the defendant with effect from the date of filing of the suit till the delivery of possession of the suit land. The plaintiff shall be entitled to interest @ 12% per annum on the damages awarded from the date of the order till realization if the defendant fails to pay damages within three months from the date of this order.
(d) The plaintiff shall also be entitled to the costs of the suit.
(e) Decree sheet be prepared after filing of deficient court fees.Suit No. 194/08 Page 32 /33
84. File be consigned to Record Room.
Announced in the open court SANJAY SHARMA)
Today on 30.11.2010 SCC-cum-ASCJ-cum
Guardian Judge (West),
Delhi
Suit No. 194/08 Page 33 /33