Delhi District Court
Smt. Rukmani Devi vs Sh. Sohan Lal Passi (Deceased) on 7 July, 2009
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IN THE COURT OF SHRI RAKESH TEWARI:
ADDL. DISTRICT JUDGE-19: CENTRAL DISTRICT,
TIS HAZARI COURTS : DELHI.
MCA NO.11/08
Smt. Rukmani Devi
w/o Sh. Narain
r/o 1419, Plot No.5,
Kotla Mubarakpur,
New Delhi - 110003.
....Appellant
VERSUS
Sh. Sohan Lal Passi (Deceased)
through legal heirs
1. Dr. Sunil Passi s/o Sh. Sohan Lal Passi
2. Miss Aparna Passi d/o Sh. Sohan Lal Passi
3. Miss. Lily Passi d/o Sh. Sohan Lal Passi
All Residing at Flat No.18,
Shakshara Apartments,
A-3, Paschim Vihar,
New Delhi - 110063.
....Respondents
Date of Institution : 04.02.2008
Date when the appeal reserved for order : 28.5.2009
Date of Order : 7.7.2009
ORDER
1. By this common order I shall dispose of the 2/24 application under Section 5 and 14 of the Limitation Act moved on behalf of the present appellant for condoning the delay in filing the appeal and the appeal against the impugned order dated 10.8.2007 passed by the executing court of Ld. Civil Judge, Delhi in miscellaneous execution no. 111/06/03.
2. So far as application for condonation of delay in filing the appeal is concerned, the impugned order was admittedly passed on 10.8.2007 against which the present appellant preferred a C.M(Main) no.1379/07 somewhere on or about 4.10.2007 before the Hon'ble High Court of Delhi which, vide its order dated 11.1.2008 disposed of the said C.M(Main) no.1379/07 wherein the present appellant conceded that an appeal would lie against the said impugned order and the said C.M(Main) no.1379/07 was not maintainable and as such the petition before the Hon'ble High Court of Delhi bearing C.M(Main) no.1379/07 was dismissed. However, the Hon'ble High Court of Delhi, at the request of the present appellant, observed in the said order that this appellate court would take into account the provisions of Section 14 of the Limitation Act, 1963 while considering the issue of limitation 3/24 when the appeal is filed because the time spent in the said C.M(Main) may be excluded for the reason that the appellant was bonafidely litigating at a wrong forum and this appeal has admittedly been filed on 2.2.2008.
3. In this case the certified copy was applied by the present appellant on 16.8.2007 which was prepared on 22.8.2007 and received by the appellant on the same day and C.M(Main) no.1379/07 was disposed of on 11.1.2008 and the present appeal was filed on 2.2.2008. In view of the observation of the Hon'ble High Court of Delhi that the present appellant was bonafidely litigating before a wrong forum vide C.M(Main) no.1379/07 and in view of the fact that the respondent was also represented by a counsel before the said wrong forum, I am of the considered opinion that the time taken in the proceedings before the Hon'ble High Court of Delhi should be excluded and excluding the time taken in the certified copies of the impugned order, I am again of the considered opinion that the appeal filed is within limitation and delay, if any, is condoned in view of the said facts. Hence, the application under Section 5 and 14 of the Limitation Act of the appellant is hereby allowed. 4/24
4. So far as merits of the appeal are concerned, the present appeal is arising out of the impugned order dated 10.8.2007 whereby the appellant's objections to the execution of a decree in favour of the deceased Decree Holder under Section 47 of the CPC were dismissed.
5. The facts giving rise to the present appeal are that one Sh. Sohan Lal Passi (now deceased and represented through his legal heirs) filed a suit for recovery of possession against Sh. Roop Ram (now deceased and the appellant being his legal heir) in respect of Plot No.5 at Kotla Mubarakpur, Wazir Nagar, New Delhi on 26.9.1968 bearing suit no.477/1968 which was decreed in favour of the deceased Sh. Sohan Lal Passi by the court of the Ld. Sub-Judge 1st Class, Delhi, vide his order, judgment and decree dated 13.10.1972.
6. The said Decree Holder Sh. Sohan Lal Passi filed an execution application before the court of Ld. Sub-Judge 1st Class, Delhi, on 12.12.1973 praying for execution of the aforesaid decree and the execution application was bearing no. 300/1973 which was dismissed by the executing court for non-prosecution on 25.1.1974 and after that the Decree Holder Sh. Sohan Lal Passi expired on 29.7.1974. 5/24
7. The respondents are the legal heirs of the deceased Sh. Sohan Lal Passi who filed another execution application under Order 21 R 11 CPC on 8.1.1979 i.e after about 6 years and 3 months of the passing of the decree thereby praying for execution of the aforesaid decree dated 13.10.1972 and on 15.2.1985, the respondents/Decree Holders requested the executing court for adjourning the case sine die due to their some personal problems and the file was consigned to the record room by the executing court on the said day holding that case was adjourned sine-die till fresh application comes. Thereafter, the respondents, on 15.2.1991, after about six years, moved an application praying for restoration of the said execution proceedings as they have come out of their personal problems and were in a position to proceed with the execution proceedings and the executing court, vide its order dated 23.5.1992 dismissed the said application for restoration of the execution proceedings in execution case no. 4/91 (old no.23/79) as barred by limitation against which the respondents preferred an appeal before the Ld. District Judge, Delhi on 6.8.1992 and the Ld. Appellate Court, concurring with the trial court dismissed the appeal vide 6/24 order dated 28.1.2002 and being aggrieved by the said order of the Ld. Appellate Court, the respondents preferred a second appeal before the Hon'ble High Court of Delhi bearing ESA (Execution Second Appeal) no. 1/2002 and C.M no. 1/2002 wherein the Hon'ble High Court of Delhi vide its order dated 14.7.2003 held that the executing court vide its order dated 15.2.1985 adjourned the execution proceedings sine die till further orders and that in other words the execution proceedings remained pending without being adjudicated upon and that since the executing court on its own did not pass any orders, it was left to the Decree Holder to remind the court of the pending proceedings which was done by way of an application under Order 21 read with Section 151 CPC and that to hold that such an application, which merely reminded the court of proceedings pending before it, would be hit by Article 137 of the Limitation Act, would be denying justice and that the court on its own is expected to proceed with the matter and while the matter is before the court, limitation in proceeding with the same cannot be attracted and thus, the said execution application was revived. 7/24
8. When the notice of the revived execution application was sent to the appellant, who is also the daughter of late Sh. Roop Ram, the file of the execution proceedings was reconstructed and the relevant documents were supplied to the appellant who filed objections against the execution of the decree including the right of ownership by adverse possession.
9. The said objections were filed under Section 47 of the CPC on behalf of the present appellant before the executing court against the judgment and decree dated 13.10.1972 in suit no.477/68 and it was mentioned in the said objections that the proceedings of the execution were adjourned sine die by the then executing court till fresh application comes vide its order dated 15.2.1985 and that no application was moved by the Decree Holder for very long time for revival of the execution proceedings and that after about six years the Decree Holders had filed an application for revival of the execution proceedings vide their application dated 15.2.1991 and that since the decree was passed way back on 13.10.1972, the JD, therefore, had become the owner by adverse possession by efflux of time and accordingly, the decree in 8/24 question could not be executed as against the JD or against the appellant who is the legal heir of the deceased JD.
10. It was further submitted in the said objections that the appellant was already in possession of the suit property for more than 55 years and she had perfected her title by efflux of time by adverse possession and the execution of the decree in question at that stage would only render the family of the poor appellant on road and the same would be travesty of justice for them and judgment of the Hon'ble Supreme Court titled Smt. Jiwani Vs. Rajmata Basantika Devi & Others reported as AIR 1994 SC 1286 was relied upon and that the wrong site plan was filed with the execution application which was different from the site plan filed in the said civil suit.
11. It was further averred in the said objections that the appellant, daughter of late Sh. Roop Ram, the JD, is living in one Jhuggi bearing no. 1419, Wazir Nagar near Gurudwara Road, Kotla Mubarakpur, behind NDSE Part-I, New Delhi, which is only a part of suit property whereas the entire suit property comprises of various jhuggies bearing no. 1411 to 1426 at plot No.5 in the said area and that the other persons 9/24 occupying other jhuggies have not been impleaded either in the main suit or in the present proceedings and that the Decree Holder/L.Rs of the Decree Holder wanted to get the entire area vacated by impleading only the appellant which is quite illegal.
12. It has been further averred in the said objections that the decree was obtained by fraud and misrepresentation as the other persons occupying the jhuggies for more than 50-55 years were not impleaded in the main suit.
13. On the other hand, Ld. Counsel for the respondents has contended that it is the majesty of law which must prevail rather than emotions in any judicial proceedings and that the equity follows the law and that the facts pleaded in the said objections that the site plan was incorrect or the other persons occupying the jhuggies were not impleaded as party either in the main suit or in the execution application or that the decree was obtained by fraud or misrepresentation or that the appellant was living peacefully for more than 55 years in the suit property, have already been decided by the concerned judge in the judgment and decree dated 13.10.1972 and that the executing court cannot 10/24 go behind the decree by entertaining the objections qua the said facts.
14. Ld. Counsel for the respondents has further contended that the present appellant is not clear as to whether she has filed the objections in her capacity as a third party in possession of the suit property or in her capacity as the legal heir of the deceased JD Sh. Roop Ram. Ld. Counsel for the respondents has further contended that uninterrupted possession of a person, howsoever long it may be, ipso facto does not create ownership of that person by way of adverse possession so long as the ownership of the suit property is traceable to a title holder of the suit property and that the appellant never by her overt act has claimed her possession and ownership of the suit property which was hostile either to the deceased Decree Holder or to the present respondents being the legal heirs of the deceased Decree Holder and he has further contended that the appellant, even if taken in her both capacities, is not entitled to claim ownership by way of adverse possession and the Ld. Counsel for the respondents has relied upon various judgments on the said aspects of his contentions which I shall be discussing at the appropriate 11/24 place below.
15. The first question to be decided in this appeal is the nature of proceedings taken up by the present appellant before the executing court through the objections under Section 47 of the CPC. If the said objections are to be treated under Section 47 of the CPC, then the consequence is that no appeal lies against the dismissal of the said objections. The natural consequence of the said position of the law is that the said objections are to be dealt from Rule 94 to Rule 103 of Order 21 of the CPC and Rule 103 of Order 21 CPC specifically provides that if the questions determined by a court under Rule 101 of Order 21 CPC, the same are to be deemed as decree for the purposes of appeal or otherwise. Hence, I am of the considered opinion that said objections under Section 47 of the CPC are to be taken under the said provisions of Order 21 CPC and the impugned order dated 10.8.2007 is to be treated as a decree against which the appeal lies and the appellant did file this appeal before this court.
16. I am fortified in my view by the order of the Hon'ble High Court of Delhi in C.M(Main) no.1379/07 and order 12/24 dated January 11, 2008, and so far as it is relevant is reproduced below:
"1. Learned counsel for the petitioner states that the petitioner asserts an independent right by claiming adverse possession and does not claim possessary right under Sh. Roop Ram the judgment debtor.
2. In that view of the matter learned counsel for the petitioner concedes that an appeal would lie against the impugned order and the civil miscellaneous main is not maintainable.
3. The petition has therefore to be dismissed."
17. One more thing emerges from the plain reading of the said order of the Hon'ble High Court of Delhi dated 11.1.2008 that the present appellant had conceded and submitted before Hon'ble High Court of Delhi that she was claiming adverse possession in her independent right and was not claiming possessary right under Sh. Roop Ram, the JD and it was in this background that it was conceded on behalf of the 13/24 present appellant before Hon'ble High Court of Delhi that an appeal would lie and the said submission and conceding of the present appellant before the Hon'ble High Court of Delhi has resulted in the present appeal. If that was the submission and conceding of the facts of the present appellant before Hon'ble High Court of Delhi, she is bound by doctrine of issue estopple whereby she cannot now re-agitate her claim by way of this appeal for possessary right under the deceased JD late Sh. Roop Ram and she is to be heard only on the aspect of adverse possession of the suit property as a third party or in her independent capacity.
18. The second preliminary question arises as to whether the appellant is entitled to re-agitate the alleged delayed filing of the execution application and revival application of the execution application. Answer to this question has already been given by the Hon'ble High Court of Delhi in ESA no.1/2002 and CM no.1/2002 by order dated 14.7.2003 wherein it was held that the application for revival of the execution application by the respondents was nothing but reminding the executing court of the proceedings pending before it and same would not be hit by bar of limitation as 14/24 provided under Article 137 of the Limitation Act and the executing court was directed to proceed with the execution application in accordance with law. Hence, the natural consequence of the said determination of the Hon'ble High Court of Delhi in ESA no.1/2002 is that the appellant cannot re-agitate the same issue now by way of this appeal before me. But again another problem arises as to whether under the provisions of Rule 98, 99, 100, 101 and 103 of Order 21 CPC to be read as a whole, even the JD is entitled to resist or obstruct the execution of the decree by claiming his or her independent title or claim to the property in question and if it is so then the present appellant being the legal heir of the deceased JD is also entitled to claim her independent right or title to the property so as to resist or obstruct the execution of the decree. In this view of the matter the twin capacities of the present appellant i.e as a legal heir of the deceased JD and as a third party or independent person claiming a right in the suit property, becomes one and the same and I have to deal with this aspect also while disposing of the present appeal.
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19. Admittedly the deceased JD was a tenant in the suit property when the decree dated 13.10.1972 was passed against him and after he expired, the appellant stepped into his shoes and as such, in my considered opinion, plea of adverse possession raised by the tenant against the owner of the land concerned cannot be raised and Ld. Counsel for the respondents has rightly relied upon the judgment of the Hon'ble Supreme Court in this regard titled Abdul Rahman Vs. Prasony Bai and Another reported as (2003) 1 SCC 488 wherein the Hon'ble Supreme Court was dealing with a situation where one Mangal Singh being the tenant in the premises in question died intestate and the revenue authorities, considering that he left no legal heir, took up the escheat proceedings and claimed that the property in question of late Mangal Singh vested in the State but the appellant who was in possession of the aforesaid premises claimed himself to be the tenant of Mangal Singh and was in possession of the suit property and he further raised the plea of adverse possession. It was in this background that the Hon'ble Supreme Court came to the conclusion that the 16/24 appellant could not have raised the plea of adverse possession and that as a tenant he could not have questioned the title of late Mangal Singh and that the very fact that escheat proceedings were initiated at the instance of the State also pointed out that State proceeded on the premise that Mangal Singh had the right/title in relation to the land in question and as he died intestate without leaving behind him any legal heir/representative, the same vested in the State and that the appellant, as noticed herein before, was allotted the land in question admittedly on the aforesaid premise, namely, Mangal Singh at the time of his death had title to the land in question or the suit property, but he died intestate and the appellant, therefore, cannot be permitted to prevaricate from his stand at that stage.
20. Hence, the claim of the present appellant even as the legal heir of the deceased JD namely late Sh. Roop Ram cannot be upheld as the deceased Roop Ram was not entitled to raise the plea of adverse possession against the landlord of the premises in question and the present appellant being his legal heir on the same reasoning cannot be allowed to raise the plea of adverse possession and accordingly, the same is 17/24 hereby rejected.
21. Now coming to the claim of adverse possession of the appellant in her independent capacity, the first question arises as to how to deal the resistance or obstruction to the execution of the decree by the appellant under Order 21 R 97, 101 and 102 and Section 35(1) of the CPC and the execution of a decree of ejectment. The Hon'ble Supreme Court was dealing with this issue in the case titled Silverline Forum Private Limited Vs. Rajiv Trust and another reported as (1998) 3 SCC 723 and in para 14 of the judgment, Hon'ble Supreme Court held as follows:
"14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even 18/24 on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary."
22. I have already held that objections of the appellant under Section 47 of the CPC filed before the executing court below have been taken by me as resistance to the execution of the decree of ejectment under the said provisions of Rule 97, 101 and 102 of Order 21 CPC. The said objections were duly supported by the affidavit of the appellant. I have carefully gone through the said objections filed before the executing court below but it is nowhere mentioned by the appellant that as to when she started claiming her possession as a "hostile possession" against the true owner, which is a necessary ingredient of the plea of adverse possession and no date has been mentioned of her hostile possession against the true owner in the said objections. It is further nowhere mentioned as to when she perfected her title by way of adverse possession after the prescribed limitation period of 12 years. She has raised general allegation that she was in possession 19/24 of the property for more than 55 years which was uninterrupted and peaceful. She has further contended that delayed filing of the execution application has also perfected her title by way of adverse possession as the execution application was time barred.
23. Although the said grounds of the appellant have already been rejected by the Hon'ble High Court of Delhi in ESA no.1/2002 and as per order dated 11.1.2008 in C.M(Main) no.1379/07, but in view of the judgments of the Hon'ble Supreme Court reported as AIR 1964 SC 1254, (2006) 7 SCC 570, AIR 1995 SC 73, AIR 1984 SC 930, (2003) 1 SCC 488(Supra) wherein the law was laid down with regard to the plea of adverse possession and it was held that the possession of the person claiming must be adverse to that of the certified purchaser and must be hostile title against the true owner and a plea is required at the least to show as to when possession became adverse so that the starting point of limitation against the party affected can be found and mere suggestion that it was an uninterrupted possession for 12 years or that the person/plaintiff had 20/24 acquired an absolute title was not enough to raise the plea of adverse possession and that the long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. It was further laid down by the Hon'ble Apex Court that the adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title and that the possession is not held to be adverse if it can be referred to a lawful title and where possession can be referred to a lawful title it will not be considered to be adverse and that mere possession howsoever long does not necessarily mean that it is adverse to the true owner. It was further laid down by the Hon'ble Supreme Court that the heavy burden lies on a person in permissive possession of the land to establish that it became adverse and that mere possession for long time does not convert permissive possession into adverse possession. It was further held by the Hon'ble Apex Court that mere continuation of unauthorized possession even for a period of more than 12 years is not enough and that it is possible that a licensor may not file an action for the purposes of recovering possession of 21/24 the premises from the licensee after terminating his license but that by itself cannot enable the licensee to claim title by adverse possession and that there must be some overt act on the part of the licensee indicating assertion of hostile possession.
24. Judging in the light of the said law laid down by the Hon'ble Supreme Court, in the present case no averment has come on the record that the appellant asserted her hostile possession against the true owner and in these circumstances she cannot be said to be in adverse possession of the suit property by way of adverse possession and moreover, in the present case title of the suit property is clearly traceable to the present respondents or to the deceased Decree Holder.
25. Ld. Counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court in Smt. Jiwani Vs. Rajmata Basantika Devi & Others (Supra) but in my considered opinion the said judgment of the Hon'ble Supreme Court cannot be helpful for the appellant in view of the fact that in the said case before Hon'ble Apex Court the execution application was filed on behalf of the Decree Holder having his signatures after the death of the Decree Holder and the 22/24 executing court suo moto permitted amendment of the defective application and it was in this background that the execution application was held as time barred and further in the said case before the Hon'ble Supreme Court the decree was dated 31.12.1965 and the execution application was prepared on 27.11.1973 and was signed and verified by one Sh. Randhir Singh, who was a joint Decree Holder along with others who died on 1.4.1974 and the execution application prepared on 27.11.1973 was not filed by Sh. Randhir Singh before the executing court during his lifetime and that it was only on 8.5.1974, long after his death, that the said application was filed before the executing court and the executing court allowed the amendment of the said execution application by way of signing the execution application by other joint owners namely Devender Singh and Narender Singh on 29.9.1984. Thus, the Hon'ble Apex Court was dealing with a situation where the execution application was filed after long 19 years. But, such is not the case before me because admittedly the first execution application was filed, as per own case of the appellant, on 12.12.1973 by the deceased Decree Holder which was dismissed by the 23/24 executing court for non prosecution on 25.1.1974 and the execution application by the legal heirs of the deceased Decree Holder was filed on 8.1.1979 after about six years and three months which was kept sine die in the record room on 15.2.1985 and the same was requested for revival vide application of the respondents dated 15.2.1991. Even otherwise, this conduct of the respondents in filing the application for execution and requesting to keep the same sine die and again reviving the same cannot be held that the respondents, to their knowledge, allowed the appellant to remain in possession without any resistance within the prescribed time.
26. Needless to repeat the famous dictum of law as per which where there is a right there is a remedy. The law of limitation only kills the remedy and not the right but in the present case neither the right can be said to have been killed nor it can be said that respondents failed to avail the remedy within the prescribed time provided by the law of limitation.
27. The remaining objections that a wrong site plan was filed by the respondent before the Ld. Trial Court or the entire suit property comprised of various jhuggies bearing 24/24 no.1411 to 1426 at Plot No.5, in the said area belonging to other persons who were not made a party to the suit or that the decree was obtained by fraud or misrepresentation, were rightly rejected by the Ld. Executing Court on the ground that the executing court could not have gone behind the decree.
28. In view of my said discussion above, I do not find any merits in the appeal and the same is hereby rejected. A copy of this order be placed on the executing court's record which may be returned forthwith. The appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 7.7.2009 (RAKESH TEWARI) ADJ-19: CENTRAL DISTRICT DELHI.