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Bal Vikas Samiti (Regd) vs Delhi Urban Shelter Improvement Board on 13 October, 2020

Author: Mukta Gupta

Bench: Mukta Gupta

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 306/2020
       BAL VIKAS SAMITI (REGD)                   ..... Plaintiff
                Represented by: Mr.Sanat Kumar, Sr.Advocate with
                                Mr.Yogendra Kumar Verma,
                                Advocate.
                     versus

       DELHI URBAN SHELTER
       IMPROVEMENT BOARD                                 ...... Defendant
                Represented by:         Mr.Anuj Chaturvedi, Advocate for
                                        DUSIB.
       CORAM:
       HON'BLE MS. JUSTICE MUKTA GUPTA
                           ORDER

% 13.10.2020 The hearing has been conducted through Video Conferencing. I.A. 9298/2020(exemption)

1. Allowed, subject to all just exceptions.

2. Application is disposed of.

CS(OS) 306/2020 I.A. 9297/2020 (under Order XXXIX Rule 1 and 2 CPC)

1. By the present suit the plaintiff inter-alia seeks a decree of declaration declaring the plaintiff as the owner by way of adverse possession of land admeasuring 2008.54 sq.yards situated at Ghazipur Road, Block-8, Trilokpuri, Delhi-91, as shown in the red colour in the site plan used as dumping ground (in short, the 'suit land'), a decree of permanent injunction in favour of the plaintiff and restraining the defendant, its officers, from interfering in the actual, continuous, uninterrupted and peaceful possession CS(OS) 306/2020 Page 1 of 7 of the plaintiff over the suit property and taking over the possession thereof.

2. The present suit has been filed by Bal Vikas Samiti claiming to be a registered Society which was registered in the year 1965 under the Societies Registration Act, 1860. Case of the plaintiff is that since the date of creation plaintiff has been dedicated to fulfil its aims and objects to establish an educational institution for the children belonging to lower income group strata in rehabilitation colony. The plaintiff started providing education to the children of the weaker section of the locality in Gazipur setting up a temporary structure with almost 20 students in the year 1970. In the year 1983, Slum and JJ Department allotted a land to the plaintiff for the education purpose admeasuring 3000 square yards (in short, 'adjoining land') adjoining which land was the dumping area admeasuring 2008.54 sq.yards situated at Ghazipur Road, Block-8, Trilokpuri, Delhi-91 i.e. the suit land. In the adjoining land the plaintiff started construction from the year 1983- 2000 making the building in phases and while constructing on the adjoining land, integrated the suit land also and constructed a double storey building of the school consisting of 15 rooms. Though in para 8 of the plaint, plaintiff claims that all authorities concerned had complete knowledge of the fact that plaintiff was in possession of suit land since 1970, however, in para 5 plaintiff does not state that that he took possession of the suit land in 1970 and after constructing a temporary structure set up a school with 20 students. Rather the averment in the plaint is that in the year 1970 a temporary structure was set up at Ghazipur, whereas the suit land is situated at Trilokpuri. Thus admittedly the plaintiff took possession unauthorisedly and illegally of the suit property between 1983-2000 when it was allotted the adjoining land and had started the construction thereon.

3. On the plain reading of the plaint, it is thus evident that the plaintiff does not plead as to when he came in possession of the suit land so as to plead the point of start of adverse possession as is required to be stated, as held by the Supreme Court in the decision reported as (2018) 11 SCC 449 Dharampal (Dead) through Legal Representatives Vs. Punjab Waqf Board and Others. In the decision, it was held:-

"33. Relying upon the aforesaid decision, this Court again in Chatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] in para 14 held as under: (SCC pp. 321-22) "14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter."

34. Applying the aforementioned principle of law to the facts of the case on hand, we find absolutely no merit in this plea of Defendant 1 for the following reasons:

34.1. First, Defendant 1 has only averred in his plaint (counterclaim) that he, through his father, was in possession of the suit land since 1953. Such averments, in our opinion, do not constitute the plea of "adverse possession" in the light of law laid down by this Court quoted supra.

34.2. Second, it was not pleaded as to from which date, Defendant 1's possession became adverse to the plaintiff (the Wakf Board).

34.3. Third, it was also not pleaded that when his adverse possession was completed and ripened into the full ownership in his favour.

34.4. Fourth, it could not be so for the simple reason that the plaintiff (Wakf Board) had filed a suit in the year 1971 against Defendant 1's father in relation to the suit land. Therefore, till the year 1971, the question of Defendant 1 perfecting his title by "adverse possession" qua the plaintiff (Wakf Board) did not arise. The plaintiff then filed present suit in the year 1991 and, therefore, again the question of perfecting the title up to 1991 qua the plaintiff did not arise".

(Emphasis supplied)

4. During the oral arguments, learned counsel for the plaintiff submits that the plaintiff was in possession of the suit land even prior to the adjoining land being allotted to the plaintiff in the year 1983 however, from a plain reading of the plaint this is not borne out. In support of its contentions the plaintiff also relies upon a documents received under Right to Information Act which is at page-46 of the documents file which is a note dated 16th July, 2010 which states that scrutiny of assessment file in respect to the above property discloses that notice under Section 128A and 123B had been issued to Bal Vikas Samiti dated 13th March, 2009 followed by a reminder dated 22nd July, 2009. It reveals that the property has been in existence for the past 40 years. The said noting does not clarify whether the same is in relation to the suit land or the adjoining land.

5. Plaintiff also relies upon page 240 of the documents file to say that the defendant admits possession of the plaintiff since the year 1992. Even as per this document, the Delhi Urban Shelter Improvement Board i.e. the CS(OS) 306/2020 Page 4 of 7 defendant has levied damages in respect of the suit land in the year 2019 with effect from 1992 whereas damages in relation to the adjoining land have been calculated from the year 1983. Thus, from this document also, possession, if any of the plaintiff is shown from the year 1992.

6. To base a claim for adverse possession, the plaintiff is required to prove the three essential requirement i.e. the possession must be adequate in continuity, in publicity and hostile to the true owner which should co-exist.

In the decision reported as (2019) 8 SCC 729 Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others, connected with Radhakrishna Reddy (Dead) Through Legal Representatives Vs. G.Ayyavoo and Others, Supreme Court held in para 60 as under:-

"60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec-vi i.e. adequate in continuity, nec-clam i.e., adequate in publicity and nec-precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonym with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession".

7. Since the suit land was a dumping ground and was under the Slums and JJ Department of the Govt. of NCT of Delhi in the year 2010, a statutory CS(OS) 306/2020 Page 5 of 7 body i.e. the defendant was created in terms of Section 3 of the Delhi Urban Shelter Improvement Board Act, 2010. Thus, all the functions, assets and liabilities of the Slums and JJ Department were taken over by the defendant. It is the admission of the plaintiff that due to the dispute between the management and staff, the school closed in the year 2010 and the recognition of the school was withdrawn by the Department of Education, East Delhi Municipal Corporation on 31st March, 2016 and the building is lying closed since April, 2016. The plaintiff claims that since the school was lying locked, a theft took place which was revealed in November, 2017 and thus, FIR was registered in this regard and thereafter, the plaintiff is seeking certified copies of all the documents which have been stolen in the theft. The plaintiff was issued a show cause notice on 17th January, 2019 and subsequent thereto, the proceedings are pending including the challenge by the plaintiff to the show cause notice by filing an appeal before the Appellate Authority i.e. the Lieutenant Governor, Delhi.

8. From the pleadings in the plaint itself, it is evident that the plaintiff does not specifically plead his possession of the suit property since 1970 and that an inference has to be drawn that the same was integrated with the adjoining land between the years 1983 to 2000 and as per the defendant, the damages have been levied from the year 1992. Hence, the plaintiff has neither been able to show the continuous possession of the suit land, hostile to the defendant and the said possession, if any, was in the garb of encroachment on the suit land with the adjoining land.

9. Dealing with the adverse possession relating to the Government land meant for public utility, the Supreme Court in Ravinder Kaur Grewal and Others (supra) held as under:-

"63. When we consider the law of adverse possession as has developed vis-a-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession".

10. Consequently, the plaintiff having not set out the necessary ingredients of a claim for adverse possession, the suit and application are dismissed as not maintainable.

11. Order be uploaded on the website of this Court.

MUKTA GUPTA, J.

OCTOBER 13, 2020 'vn' CS(OS) 306/2020 Page 7 of 7