Delhi District Court
Sh. Shri Krishan Gupta vs Sh. Yashpal on 8 August, 2008
IN THE COURT OF SH. M. P. SINGH, CIVIL JUDGE,
KARKARDOOMA COURTS, DELHI
Suit No. 455/2006
1. Sh. Shri Krishan Gupta
s/o Late Sh. Raghubar Dayal
House No. 510, Chhota Bazar,
Shahdara, Delhi110032 ........PLAINTIFF
Versus
1. Sh. Yashpal
s/o Late Sh. Loti Ram,
House No. 1/6312, Gali No. 3,
East Rohtas Nagar, Delhi32
2. Sh. Harish Chand Goel,
s/o Sh. M. C. Goel,
House No. 1/10829, Subhash Park,
Naveen Shahdara, Delhi32
3. Sh. Lalit Mohan Tiwari,
s/o Sh. Abhey Ram Tiwari
House No. 3625/12B, Dwarkapuri,
Behind Shyam Lal College,
Naveen Shahdara, Shahdara, Delhi32
4. Sh. Om Dutt Sharma (since deceased)
s/o Sh. Durga Dutt Sharma
(Represented through LRs no. 4A to 4E)
4A. Smt. Shanti Devi
w/o Sh. Om Dutt Sharma
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4B. Sunil Sharma
S/o Sh. Om Dutt Sharma
4C. Ajay Sharma
s/o Sh. Om Dutt Sharma
4D. Rajesh Sharma
s/o Sh. Om Dutt Sharma
4E. Nisha Sharma
d/o Sh. Om Dutt Sharma
All (4A to 4E) LRs of Late Sh. Om Dutt Sharma
are residents of
1/1944A, Modern Shahdra, Ram Nagar,
Moti Ram Road, Shahdara, Delhi32
5. Sh. Laxmi Narain Sharma
House No. B55, East Jyoti Nagar,
Loni Road, Shahdara, Delhi
6. Smt. Kamlesh Kumari
w/o Sh. Basant Kumar Kashyap,
House No. B55, East Jyoti Nagar,
Loni Road, Shahdara, Delhi32
7. Sh. Bal Karan
s/o Sh. Jaddu Nath Yadav,
c/o Sh. Shankar Lal,
House No X126, Gali No. 3,
Durga Puri,
Mandoli Road,
Shahdara, Delhi32 ..........DEFENDANTS
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SUIT FOR POSSESSION AND DAMAGES
DATE OF INSTITUTION OF THE SUIT: 05/09/1995
DATE WHEN JUDGMENT WAS RESERVED: 03/07/2008
DATE OF DECISION: 08/08/2008
JUDGMENT
1. This is a suit for recovery of possession and for damages. The plaintiff is the owner of property situated at B55, East Jyoti Nagar, Loni Road, Shahdara, Delhi falling within khasra no. 873, village Gokulpuri (hereinafter referred to as 'the suit property'). The suit property was purchased by him through a duly registered sale deed dated 02.04.1973 from M/s Delhi Housing and Finance Corporation, Karol Bagh, New Delhi55. After having purchased the suit property, the plaintiff constructed boundary wall, tinshed towards western side, one big long room, small tin shed and also got two hand pumps fixed. The plaintiff also got done earth fillings in the plot in the year 1974. The construction work was carried out by the plaintiff through one Sh. Mahabir Singh, contractor in the year 1975. The plaintiff avers that he has been paying the house tax regularly in respect of the suit property and has paid the house tax for the year 199596. The plaintiff had employed Sh. Balkaran (D7) as a chowkidar to look after the suit ::4::
property. He drew regular salary from the plaintiff between the period January 1982 to March 1990.
2. There were litigations earlier too between the parties with respect to the suit property. D1 had earlier instituted a suit (suit no. 352/1990) for permanent injunction against dispossession against D2 and D3. That suit was filed by D1 on the basis of the averments that "he was inducted as a tenant by owner/landlord Sh. Balkaran in the year 1987 at a monthly rent of Rs. 275/. Sh. Lalit Mohan Tiwari and Sh. Harish Chand Goel are claiming that they have purchased the suit property from the previous owner on 09.01.1990 and are threatening to dispossess him." The plaintiff on coming to know about the pendency of the suit, filed an application under Order I Rule 10 of the Code of Civil Procedure. Vide Order dated 04.07.1992, this application of the plaintiff (Sh. Shri Krishan Gupta) was allowed and consequently the plaintiff was impleaded as codefendant. The plaintiff then filed his written statement. However that suit came to be dismissed in default on 29.03.1993.
3. There was another round of litigation. This litigation was at the instance of D4, who had filed a suit for permanent injunction against dispossession (suit no. 241/1993) in the Court of Sh. V. K. Bansal, the then Ld. SubJudge, 1st Class, Delhi. In that plaint, D4 asserted that he ::5::
was in possession for the last more than 18 years. His injunction application was dismissed. An appeal was preferred against the dismissal of the injunction application, which too came to be dismissed. Thereafter this suit too came to be dismissed in default.
4. An FIR also came to be registered at the instance of the plaintiff against D2, D3 and D7. Criminal proceedings were initiated against D2, D 3 & D7 under various provisions. They were arrested before they were bailed out by the Court. D7 was subsequently declared a proclaimed offender.
5. D4, D5 and D6 are stated to be in possession of the suit property. It is averred that the plaintiff requested D4, D5 and D6 to vacate the suit property and hand over the vacant and peaceful possession thereof to him. His request was rejected. Hence this suit for possession and damages.
6. D5 was proceeded ex parte on 17.10.1995. D2 and D6 were proceeded ex parte on 29.11.1995. D1 and D7 were proceeded ex parte on 01.08.1996. D3 was proceeded ex parte on 20.05.1996.
7. Defendant no. 4 contested the suit by filing his written statement dated 01.08.1996. The chief defence is twofold; firstly that of adverse possession and secondly that the plaintiff has suppressed and concealed material facts. It is stated that the Idol Shivaji Maharaj exists on the ::6::
plot in dispute and D4 has been acting as Pujari since 1974. The plaintiff has never been in possession of the suit property ever since 1974 as such he is not entitled to the relief of possession. It is averred that the plaintiff has not approached the Court with clean hands; that the suit has not been valued properly for the purposes of court fees and jurisdiction.
8. In reply on merits, it has been submitted that the boundary wall and the temple in the suit property was constructed by D4 with the help of financial assistance of yajmnas, devotees and followers. D4 denies having any knowledge of any person by the name of Sh. Balkaran (D
7). It is stated that Sh. Balkaran (D7) is a fictitious person. D4 also denies having any knowledge about the pendency or about the proceedings in the suit no. 352/1990 instituted by defendant no. 1.
However, it has not been denied that a suit for permanent injunction was instituted by him wherein the present plaintiff has been arrayed as a codefendant. It has been submitted that Idol Shivji Maharaj has become the owner of the suit property by operation of law as applicable to the facts and the circumstances of the case. Denying the rest of the averments the D4 has prayed for dismissal of the suit.
9. The plaintiff filed his replication dated 03.10.1996 to the written statement of defendant no. 4 wherein he has refuted the counter ::7::
allegations as contained in the written statement while reiterating and reaffirming the averments as contained in the plaint.
10.On the basis of pleading of the parties, the following issues were framed by the Court on 25.02.1997:
1. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction as mentioned in preliminary objection no. 4 of the written statement? (OPD)
2. Whether the suit is liable to be dismissed as preliminary objection no. 1 of the written statement of defendant no.4?
(OPD4)
3. Whether the plaintiff is the owner and in possession of the property in dispute bearing no. B55, East Jyoti Nagar, Loni Road, Shahdara in Khasra No. 873 within the revenue estate of Gokul Puri and has constructed boundary wall and tin shed therein? (OPP)
4. Whether the plaintiff is liable to damages @ Rs. 2500/ per month as claimed in the plaint? (OPP)
5. Whether the defendants are jointly and severally liable to pay damages @ Rs. 2500/ per month? (OPP)
6. Whether the defendant is in possession of the land in suit for the last 18 years? If so, its effect? (OPD) ::8::
7. Relief.
11.These issues were recast on 03.07.2008 under Order XIV Rule 5 of the CPC in the presence of the Ld. Counsel for the parties and the plaintiff and with their consent. The reframed issues are as follows:
1. Whether this suit has not been properly valued for the purpose of court fees and jurisdiction as mentioned in preliminary objection no. 4 of the written statement of defendant no. 4? (OPD4)
2. Whether the defendant no. 4 has perfected his title by virtue of adverse possession? If so its effect on the suit? (OPD4)
3. Whether the plaintiff has not approached the Court with clean hands by suppressing material facts? (OPD4)
4. Whether the plaintiff is the owner of the property in question and had constructed boundary wall and tin shed therein? (OPP)
5. Whether the plaintiff is entitled for the relief of possession of the suit property? (OPP)
6. Whether the defendants are jointly and severally liable to pay damages @ Rs. 2,500/ per month? (OPP)
7. Whether the plaintiff is entitled for damages to the tune of Rs.
90,000/ against the defendants? (OPP)
8. Relief.
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12.There were eight witnesses in all. The plaintiff was examined as PW1.
Sh. H. R. Chug, Superintendent, House Tax, Shahdara North Zone, House Tax Office was examined as PW2. Sh. Ranvir Singh, Alhmad in the Court of Sh. D. K. Malhotra, Senior Civil Judge was examined as PW3. Sh. Rajiv Kumar, LDC, Record Room (Crl.), KKD Courts, has testified as PW4. Hari Om, LDC, Record Room (Civil), Tis Hazari Courts was examined as PW5. Smt. Prem Lata, an official from the office of SubRegistrar was examined as PW6. On behalf of the defendants, there were two witnesses namely Sh. Krishan Sharma and Nisha Sharma. It is pertinent to mention that the defendant no. 4 passed away after his examination in chief. Due to his demise he could not be crossexamined.
13.I have heard the submissions of Ld. Counsel for the parties and have perused carefully the records of the case.
14.My findings on these issues as reframed on are asunder:
The onus to prove this issue was conferred upon the
15.ISSUE No. 1 -
defendant no. 4. It was for the defendant no. 4 to prove that the suit has not been properly valued by the plaintiff for the purposes of court fees and jurisdiction. No evidence whatsoever has been led on behalf of defendant no. 4 to prove that the plaintiff has not correctly valued his suit for the purposes of court fees and jurisdiction. The entire evidence ::10::
of the defendant's witnesses in this regard is silent. Ld. Counsel for the defendant no. 4 too did not submit anything on this issue during the course of arguments. Therefore, the defendants has not been able to prove this issue. Therefore, this issue is decided against the defendants and in favour of the plaintiff.
16.ISSUE No. 3 SUPPRESSION AND CONCEALMENT OF MATERIAL FACTS: The onus to prove this issue was conferred upon the defendants. It was vehemently argued that the plaintiff has concealed material facts regarding the proceedings of SDM under Section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the CrPC'). It is stated that the SDM in the case no. 103/SDM/SHAH/92 titled as "SK Gupta vs. Lalit Mohan" had categorically observed that the D4 had been in possession for the last more than 18 years. It was vehemently argued by the Ld. Counsel for the defendant no. 4 that the plaintiff has deliberately concealed this material fact of SDM proceedings wherein it has been held that D4 has in possession of the suit property for the last more than 18 years. It was, therefore argued, that the suit of the plaintiff is liable to be dismissed outrightly on this score.
17.There can certainly be no denial from the settled principle of law that the suppression of material fact by a litigant disqualifies such litigant ::11::
from obtaining any relief. The rule has been evolved out of need of the Courts to deter a litigant from abusing the process of court by deceiving it. But what is essential is that the suppressed fact must be a material fact. It must be material fact in the sense that had it not been suppressed it would have had an effect on the merits of the case.
18.Before I proceed to give my findings on this issue, I would like to discuss three judgments of the Apex Court on this aspect of law. The first judgment of the Apex Court that I would like to discuss is the case reported as Mayar (H. K.) Ltd. & Ors. Vs. Owners and Parties, Vessel M. V. Fortune Express & Ors. AIR 2006 SC 1828. In this case, there was an agreement between the parties whereby the parties had agreed that disputes shall be decided where the carrier had its principal place of business. It was also mutually agreed that the law applicable would be the law of such country where the carrier had its principle place of business. For the sake of convenience, the agreement between the parties in the Mayar's case (supra) as regards the jurisdiction of courts is reproduced as under:
3. Jurisdiction: Any dispute arising under the bill of lading shall be decided in the country where the carrier has his principal place of business and the law of such country shall apply except as provided elsewhere herein.
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The plaintiff did not disclose at all this fact qua the jurisdictional clause in their plaint. No mention at all was made about the agreement as regards the jurisdiction of the Courts. The Calcutta High Court observed that this tantamounted to suppression and concealment of material facts by the plaintiff. Setting aside the the Order of the High Court, the Apex Court held that the absence of the jurisdictional clause in the plaint was no suppression and concealment of material facts. It would be beneficial to take a note of the observations of the Apex Court in this context at para 17 of the judgment:
For the purpose of cause of action, it was not necessary for the plaintiffs to plead ouster of the jurisdiction of the Calcutta Court . In fact, it was for the defendants to plead and prove the ouster of the jurisdiction of the Calcutta Court and conferment of the jurisdiction in the Singapore Court alone. On a bare reading of clause 3 of the BOL (Bill of Lading), it is clear that any dispute arising under the BOL shall be decided in the country where the carrier has its principal place of business and the law of such country shall apply except as provided elsewhere in the BOL. Therefore, the exclusion clause refers to the jurisdiction of a court where the carrier has its principal place of business. Unless and until it is established that the defendantcarrier had its principal place of business at Singapore, the exclusion clause has no application. Simply because, in the cause title of the plaint, the plaintiffs have described the defendant no. 2Trustrade Enterprises PTE ::13::
Ltd. to be carrying on business at Singapore, would not ipso facto establish the fact that the principal place of business of defendant no. 2 (respondent herein) is/was at Singapore to exclude the jurisdiction of the Calcutta Court which admittedly has the jurisdiction to try the suit. Therefore, the absence of reference of Clause 3 of BOL in the pleadings cannot be said to be suppression of the material facts as the question of jurisdiction would be required to be adjudicated and decided on the basis of the material placed on record at the trial.
19.The case reported as M/s S. J. S. Business Enterprises (P) Ltd. vs. State of Bihar & Ors. AIR 2004 SC 2421 would also be of much relevance in this context. In this case, a civil suit was filed on 04.04.2002 by the petitioner before the Court of Ld. Sub Judge, Patna. The prayer for interim injunction was refused by the Ld. SubJudge on 08.04.2002 and notice was directed to be issued. The next day a writ petition was filed before the High Court for the same reliefs as had been prayed for in the civil suit. The civil suit was withdrawn two weeks after the institution of the writ petition. However, a year later, when the writ petition came up for final disposal, the same was dismissed on the sole ground that the petitioner had suppressed and concealed material facts by not disclosing the institution of the civil suit before the Court of Ld. Subjudge, Patna. The Apex Court observed that the fact that a suit had already been filed by the ::14::
appellants was not such a fact, the suppression of which could have affected the final disposal of the writ petition on merits. It was further observed that the dismissal of the writ petition was not correct when the suit had admittedly been withdrawn.
20.Next, in the recent case of Virender Nath Gautam vs. Satpal Singh & Ors. AIR 2007 SC 581 the Apex Court observed:
33. A distinction between 'material facts' and 'particulars', however, must not be overlooked. Material Facts are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence.
'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.
34. All 'material facts' must be pleaded by the party in support of the case set up him. Since the object and purpose is to enable the opposite party to know the case he has to meet, in the absence of pleadings, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence will not entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of the trial.
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21.Now coming to the case at hand, the fact that SDM had conducted proceedings under Section 145 of the Code of Criminal Procedure is not a fact which could be said to be material one. Just as in the Mayar's case (supra) for the purpose of cause of action, it was not necessary for the plaintiffs to plead the agreement regarding ouster of the jurisdiction of the Calcutta Court; similarly in the case at hand, it was not at all necessary for the plaintiff for the purposes of cause of action to plead about the proceedings conducted by the SDM under Section 145 CrPC. It was for the defendants to plead about the proceedings under Section 145, CrPC for the reason that it is their plea that they have perfected their title by adverse possession. Even otherwise, these considerations are wholly in the nature of 'evidence' which is matter to be considered and proved during the course of trial.
There is another reason to it. The proceedings under Section 145 of CrPC is not something which can ipso facto influence the outcome of the trial of this civil case so much so that the outcome of such proceedings can be said to be binding upon the Civil Courts. It is a settled law that the proceedings under Section 145 of CrPC are not binding and the same is subject to decision of civil courts which can give a different finding from that which the SDM had reached. {Jhunamal vs. State of MP AIR 1988 SC 1973}.
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22.Next, a careful reading of the concerned report of the SDM would show that there was no final order. Vide order dated 30.03.1993 the proceedings were simply "
dropped '' on the ground that the same were not maintainable. An extract out of the order dated 30.03.1993 of the SDM disposing of the proceedings as not maintainable is as follows:
The Counsel for the second party states that the proceedings U/s 145 Cr.P.C. are not maintainable hence they are not required to be continued. In view of the discussion made above the proceedings are not maintainable and hence dropped. Both the parties are required to contest in the Civil Court. File be consigned.
Sd/
23.In the matter of SJS Business Enterprises (supra) the fact that the civil suit was withdrawn much after the institution of the writ petition was held by the Apex Court not to be a material fact. Therefore on similar footings, the factum of pendency of proceedings under Section 145 of CrPC which came to be subsequently dropped as not maintainable is not a fact which can be said to be a material one; and consequently not mentioning the same in the plaint cannot be said to be suppression and concealment of material facts. In the SJS Business Enterprises case (supra) the pending civil suit was withdrawn much after the institution of the writ petition. However, the case at hand involves a situation where the proceedings under section 145 CrPC ::17::
were 'dropped as not maintainable' much prior to the institution of the instant civil suit. The proceedings under section 145 CrPC were dropped on the ground of nonmaintainability on 30.03.1993; and the present civil suit came to be instituted much later on 05.09.1995. Therefore on the touchstone of the ratio decidendi of SJS Business Enterprises case (supra) the said fact is not a material fact and non mention of such fact is certainly no suppression and concealment of material fact.
24.In view of the discussion as aforesaid I therefore, decided this issue against the defendants and in favour of the plaintiff.
25.ISSUE No. 2 ADVERSE POSSESSION - The onus to prove this issue was conferred upon the defendants. This issue as regards adverse possession was the chief, primary and the predominant defence during the entire course of trial. In the written statement it was the stand that the Idol Shivji Maharaj had become the owner of the suit property by the operation of law where D4 had been acting as the Pujari of temple ever since 1974. It was the also the averment that the plaintiff had not been in possession for the last more than 18 years. Additionally heavy reliance is also placed upon the aforementioned SDM report dated 30.03.1993 where it is purportedly stated that the D4 is in possession for the last more than 18 years. It was on these grounds that the claim ::18::
of adverse possession against the plaintiff is based.
26.The Ld. Counsel for the defendants also drew the attention of the Court to certain statements of the plaintiff in his crossexamination. These statement are as follows: in his crossexamination dated 14.03.2005 the plaintiff had testified "Physically I never lived in the plot". He further testified that the he was not sure about the month when the defendant no. 4 encroached the plot. On 04.04.2005 he testified that defendant no. 4 was not sitting in the plot with his consent.
27.It is a settled law that mere possession for howsoever length of time does not result in converting the possession into adverse possession. What is essential is that there must be intention on the part of person claiming adverse possession to dispossess the true owner. The intention needs to be open and hostile enough to bring the same to the knowledge of true owner and he should have an opportunity to object. A person who bases his title on adverse possession must show by clear and unequivocal evidence that possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitutes adverse possession regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of the case. The crux of the matter is that the possession must start with a ::19::
wrongful dispossession of a rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (S. M. Karim vs. Bibi Sakinal AIR 1964 SC 1254)
28.In the case at hand, the mere fact that the plaintiff has been out of possession would not ipso facto convert the possession of the defendant into that of adverse possession. Such possession of D4 has to be examined on the rigorous touchstone of the law of adverse possession. The first and foremost requirement of the plea of adverse possession is to recognize the title of the person against whom adverse possession is claimed. And then to aver that the he enjoyed the property adverse to the title holder's interest after making him known that such enjoyment is against his own interest. In the case at hand, there is clear absence, in the pleadings as well as in the evidence, the foremost requirement of recognising the title of the person against whom adverse possession is claimed. In his written statement the D4 had at the very outset denied the title of the plaintiff to the suit property. In paras 1 & 2 of the reply on merits, it was categorically asserted that the claim of the plaintiff having any title over the suit property "is wrong and denied for want of knowledge". In the cross examination dated 15.03.2008 it was testified by Smt. Nisha Sharma that it was wrong to suggest that the plaintiff was the owner of the suit ::20::
property. Therefore, what is crucial is that at no point of time was there any recognition of the title of the plaintiff. In other words, the D4 was at no point of time sure as to who the true title owner was. Rather, they had no inkling about the true owner. This is further buttressed and fortified by the assertions made by the D4 in the previous suit that he had filed. In that suit too, there was no assertion by the D4 that he had known the title of the true owner and having thus known the title of the true owner; he had maintained an open and hostile possession as against him and thus denied his title. The order dated 07.03.1995 passed by Sh. Pradeep Chaddha, the then Ld. Civil Judge, in the suit for permanent injunction that was filed by D4 has been placed on record and exhibited as PW3/1. Vide this Order the applications of the D4 under Order 26 Rule 9 and 39 Rules 1 & 2 were dismissed. Certain averments of the D4 as asserted in the plaint that have found mention in the order are very crucial and material. It is as follows:
The priest is now under apprehension of being dispossessed by defd. No. 1. On 20.05.1993 defd. No. 3 ( Sh. Shri Krishan Gupta ) came to the temple.
He posed himself to be the owner of the premises and asked the priest to remove the idols and structure.
29.That is, as per his own assertions and averments, since the time the D4 asserts to have come into possession, he was completely clueless as to ::21::
who the owner was. Rather he did not even have even the slightest idea as regards the true title owner. It was only on 20.05.1993 when Sh. Shri Krishan Gupta came to the suit premises and posed himself as the owner, that the D4 had an inkling and certain idea as to who the actual owner was.
30.Even if the most charitable and liberal view of the entire matter be taken, at the most it could be said that the D4 came to know about the plaintiff's ownership on 20.05.1993 when the plaintiff posed himself as the owner. Therefore when D4 was completely clueless as to who the true owner was; there can be no question about any adverse possession. After all adverse possession has to be and must be against the true owner. In order to substantiate the plea of adverse possession, what has to be shown is that the possession was open and adverse as against the true title owner of the property in question. When the defendants were not aware as to who the true owner was; then against whom was the adverse possession set up all this while? When the defendants were not aware as to who the owner was; the question of denying the title of the true owner does not arise at all. Adverse possession is always against the true title owner. An extract out of the judgment reported as Dharmarajan & Ors. vs. Valliammal & Ors. AIR 2008 SC 850 would be of much relevance in this context. It is as ::22::
follows:
"Secondly, it has nowhere come as to against whom was her possession adverse. Was it adverse against the Government or against the Iyer family? 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 is not even certain as to against whom the adverse possession was pleaded on the part of Karupayee Ammal."(emphasis supplied throughout)
31.I am further fortified in this view by the judgment of the Apex court reported as T. Anjanappa and Ors. vs. Somalingappa and Another (2006) 7 SCC 570 : JT 2006 (8) SC 382 wherein it was opined:
"The High Court 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 have 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 the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise."(emphasis supplied throughout)
32.This view has been further reiterated by the Allahabad High Court in the case of Ramzan & Ors. vs. Smt. Gafooran & Ors. AIR 2008 Allahabad 37. The High Court relying upon the judgment of ::23::
T. Anjanappa's case (supra) observed as follows:
29. " As pointed out above, where the defendants are not sure who is the true owner and question of their being in hostile possession then the question of denying the title of the true owner does not arise. At the most, the defendants have claimed and which is found to be correct by the Trial Court that they have been in possession of the disputed property since the inception of the sale deeds in their favour. They came into possession, according to their showing, as owner of the property in question. It follows that they exercised their right over the disputed property as owner and exercise of such right, by no means of imagination, it can be said that they claimed their title adverse to the true owner."
33.The case of P. T. Munichikkanna Reddy & Ors. vs. Revamma and Ors. AIR 2007 SC 1753 would also be relevant in this context. This was a case where one 'T' was the owner of land measuring 5 acres 23 guntas. A portion thereof measuring 1 acre 21 guntas was sold to one 'N' on 11.09.1933 by reason of two sale deeds of the year 1933 and 1936. The appellants purchased 2 acre 15 guntas and 3 acre 8 guntas land respectively. Despite the fact that the 'N' had purchased a portion of the plot, the appellants allegedly took over the possession of the entire plot of 5 acres and 23 guntas after the aforementioned purchases. However when their possession was sought to be disturbed by the respondent in the year 1988 a suit was filed inter alia on the averments ::24::
that in any event they had perfected their title by adverse possession as they have been in open, continuous uninterrupted and hostile possession of the plaint schedule land, adversely to the interest of any other person including the defendant for the past 50 years exercising absolute rights of ownership in respect of the plaint schedule land. The Madras High Court had held "the averments of adverse possession are two fold. One is to recognise the title of the person against whom adverse possession is claimed. Another is to enjoy the property adverse to the title holder's interest after making him known that such enjoyment is against his own interest. These two averments are basically absent in this case in the pleadings as well as in the evidence." Before the Apex Court, the chief and the predominant ground on which the judgment was assailed was that the Madras High Court had committed a manifest error in arriving at the conclusion as it failed to take into consideration the principle that the acknowledgment of the owner's title was not sine qua non for claiming title by prescription. However, this contention did not hold any water and the same was rejected by the Apex Court.
34.Now, having dealt with the aspect as regards the recognition of the ownership of the true owner; I shall now deal with the plea of adverse possession of D4 from another angle. In the case of Karnatka Board ::25::
of Wakf vs. Government of India and Others (2004) 10 SCC 779 the law was stated thus:
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law and therefore a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession ........"
35.Therefore what is settled is that the onus shall squarely lie on the person setting up adverse possession to clearly plead and establish all the facts necessary to establish the same for the reason that there are no equities in his favour as he is trying to defeat the rights of the rightful owner. He is also required to clearly establish and show (a) on what date he came into possession, (b) what was the nature of his possession,
(c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. In the case at hand it is merely asserted that the D4 ::26::
has been in possession ever since sometime in 1974. But how the possession was acquired and in what manner is not averred anywhere in the entire pleadings and the evidence. Next, 'whether the factum of possession was known to the other party' and whether the possession was open and undisturbed is required to be clearly asserted and proved. In the entire pleadings and the evidence, there is nothing on record to show that the such possession was known to the other party, the true owner. Rather the D4 has demolished his own case by averring to the contrary. D4 in the previous suit for permanent injunction that he had instituted had asserted therein that on 20.05.1993 the plaintiff came to the suit property and posed himself the true owner. In other words, it was for the first time on 20.05.1993 that it was realised that at least there is someone who is posing himself as the true owner. Further, it has come in the evidence by examination in chief of Sh. Kishan Sharma who has been examined as D4W2/1 that "in 1992 Sh. Kishan Gupta had claimed the ownership of the suit property and wants to grab the property." The factum of the institution of the previous suit for permanent injunction by the defendant no. 1, wherein the plaintiff had filed an application under Order I Rule 10 of the Code can at the most go to show that the plaintiff had come to know about the factum of possession in the year 1992. Therefore, even if it be assumed and ::27::
presumed that the D4 had been in possession of the suit property ever since 1974; what is of paramount consideration is that whether the plaintiff was aware about the factum of possession by D4 for 12 long years immediately prior to the institution of the suit? To put it differently, the question is whether the plaintiff was in the knowledge of the factum of possession of the suit property by D4 since the year 1983 (i.e. 12 years prior to the institution of the suit). There is nothing on record to even impliedly or remotely suggest that the plaintiff was in the knowledge of the factum of possession of the suit property by D
4. Even if the most charitable and liberal view of the entire matter be taken, the plaintiff can at the most be said to be having the requisite knowledge ever since the early 1990s. This Court cannot certainly rely upon conjectures, surmises and guessworks. The onus to prove adverse possession is squarely upon the person setting up adverse possession. As held in Karnatka Board of Wakf case (supra) 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. It can certainly be no case that because the D4 has been in possession for long, the plaintiff be presumed to be having the requisite knowledge. Presumptions cannot take the place and be a substitute for ::28::
a positive proof.
36.The next point that is required to be considered is whether the possession was open and undisturbed as against the true owner. In the discussion hereinabove, I have already given my finding as to fact that there in nothing on record to establish or even suggest that the D4 had the knowledge as to who the true owner was. Prior to the 1990s D4 had no inkling whatsoever as to who the true owner was. Where the person who is setting up adverse possession is not sure who is the true owner; then the question of being in open and undisturbed possession as against the true owner does not arise at all. Against whom is open and undisturbed possession being claimed when the person himself is not sure about the true owner?
37.Heavy reliance was also placed on the SDM report wherein it is purportedly stated that the possession of the suit property has been with the D4 for the last 18 years. A careful perusal of the order of SDM would clearly go to reveal that the assertions of the Ld. Counsel for the D4 are only partially true. In the his order, the SDM has nowhere given any categorical finding much less any finding that the D4 has been in possession for the last 18 years. Next, the order clearly states that the proceedings under section 145 of the CrPC are not maintainable hence they are not required to be continued. The order ::29::
further goes on to state that "in view of the discussion made above the proceedings are not maintainable and hence dropped." Therefore, what is to be seen is that the SDM had never given his finding on the proceedings under Section 145 of CrPC. Rather, the SDM dropped the proceedings under Section 145 of CrPC as being not maintainable. It is only in the site inspection report that there is some mention of 18 years. The site inspection report is reproduced hereunder:
"Site was inspected today. At the site one temple, two pucca rooms alongwith electricity and boundary wall were found. Shri Om Dutt Sharma the priest of temple stated that he is residing in disputed place for more than 18 years. One Smt. Kamlesh was also found residing as tenant in one of the pucca rooms. She stated that she is residing for more than 18 years. It is also brought to notice that a civil suit is pending. No apprehension of breach of peace was found existed. Smt. Kamlesh stated that she is the tenant of Shri Shri Kishan Gupta."
38.A perusal of the site inspection report would show that it is certainly not that the SDM has given any finding as regards the length of the time the D4 has been in possession. The SDM has merely recorded the submissions of the D4 that he had been in possession for the last more than 18 years. What the SDM has recorded is merely the submissions of the D4 as regards the length that he has been in possession. The SDM has nowhere given any finding of his own. The submissions of ::30::
the D4 as recorded in the site inspection report cannot take the place any conclusive finding on the part of the SDM. It can neither be a substitute for any such order/finding of the SDM.
39.This SDM report can be considered from another legal angle. This consideration is against the backdrop of Section 21 of the Indian Evidence Act. Section 21 of the Evidence Act lays down an important principle of law that generally an admission cannot be used by the person who makes it for his own use. An admission will be used by the person in his favour only if and if the same falls within any of the three exceptions laid down therein. In this regard, it would be beneficial to take a look at the first illustration appended to this section. This illustration is as follows: The question between A and B is, whether a certain deed is or is not forged, A affirms that it is genuine, B affirms that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine; nor can B prove a statement by himself that the deed is forged. Now, I shall apply this principle to the instant case. D4 asserts that he is in possession for more than the 18 years. Therefore, in order to prove that the possession had been with D4 for the last more than 18 years, the own statement of D4 cannot be certainly relied upon. The bar of section 21 of the Indian ::31::
Evidence Act would squarely come into play. The aforesaid statement of D4 does not come within any of the three exceptions to section 21.
40.Next, in the proceedings under Section 145 of the CrPC, the SDM can only decide whether and which of the parties was, at the date of the Order made by him under section 145 (1) CrPC, in possession of the subject of the dispute {see section 145 (4) of CrPC}. The proceedings of the SDM are limited only to this extent. Further, Section 145 (4) of CrPC clearly states that the order of the SDM shall be without reference to the merits of the claims of any of the parties as regards right to possess. It is not within the domain of the SDM in exercise of powers under section 145 of CrPC to delve into enquiry and return a finding as to what length of time a party has been in possession. This is certainly not the domain of the SDM. It is only a Civil Court that can give a finding to this effect in an appropriate suit on the basis of the evidence led by the respective parties. Therefore, in my view, the SDM report cannot be of any assistance to the defendants whatsoever. NEW DIMENSIONS IN THE LAW OF ADVERSE POSSESSION
41.In the case of P. T. Munichikkanna Reddy (supra) the Apex Court has discussed the new paradigm in the law of adverse possession. It was observed: the law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908 (the old Limitation ::32::
Act) the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land. Whereas in terms of Article 64 and 65 of the Limitation Act, 1963 the legal position has underwent a complete change insofar as the onus is concerned: once a party proves its title, the onus to proof would be on the other party to prove claims of title by adverse possession.
42.The Apex Court went on to consider the law of adverse possession in the background of the expanding horizons of human rights. It was observed thus: "there is another aspect of the matter which cannot be lost sight of. The right to property is now considered to be not only constitutional or statutory but also a human right." Article 17 of the Declaration of Rights of Man and of the Citizen, 1789 and Sections 17
(i) and 17 (ii) of the Universal Declaration of Human Rights, 1948 which incorporate and enunciate the right to property was also quoted in this context. The Apex Court went on to observe:
18. Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activists approach of the ::33::
English Courts is quite visible from the judgments of Beaulane Properties Ltd. vs. Palmer [2005 (3) WLR 554 : 2005 EWHC 817 (ch.)] and JA Pye (Oxford) Ltd. vs. United Kingdom [2005] ECHR 921 : [2005] 49 ERG 90 , [2005] ECHR 921]. The Court herein tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights has widened so much that now property dispute issues are also being raised within the contours of human rights.
19. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken unkind view to the concept of adverse possession in the recent judgment of JA Pye (Oxford) Ltd. vs. The United Kingdom [2005] ECHR 921, which concerned the loss of ownership of land by virtue of adverse possession.
43.The Apex Court then elaborately discussed the English case of JA Pye (Oxford) Ltd. vs. The United Kingdom [2005] ECHR 921. Allowing the appeal preferred by the person setting up the claim of adverse possession, House of Lords speaking through Lord BrownWilkinson made an observation which is quite remarkable. It was as follows:
"while I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge Nuremberg) arrive at with no enthusiasm."
44.The title owner then moved the European Commission of Human Rights (EHCR) alleging that the United Kingdom law on adverse ::34::
possession violated Article 1 of the Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedom. The Court concluded that "the application of the provisions [pertaining to adverse possession] to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset fair balance between the demands of public interest on the one hand and the applicants' right to peaceful enjoyment of their possession on the other. There has therefore been a violation of Article 1 of the Protocol No. 1"
45.The Apex Court after the elaborate discussion on the emerging trends in the law of adverse possession concluded thus:
"Therefore it will have to be kept in mind that the Courts around the world are taking an unkind view towards statutes of limitation overriding property rights."
46.Therefore, in the light of the aforesaid discussion, I am of the view that the D4 has utterly and miserably failed to show that the title has been perfected by adverse possession. And since plea as regards adverse possession has been utterly and miserably failed to be proved; the same can have no effect whatsoever upon suit of the plaintiff. I answer this issue in favour of the plaintiff and against the D4.
47.ISSUE No. 4 - The onus to prove this issue was upon the plaintiff. The plaintiff has placed in record the certified copy of the sale deed in his ::35::
favour on record which is exhibited as Ex PW1/1 (original seen and returned). Smt. Prem Lata, PW6, the summoned witness the from the Office of SubRegistrar deposed that the sale deed was duly registered on 27.06.1973 vide document no. 818, volume no. 666, on pages 193 to 196 book no. 1. And the same stands in the name of Sh. Shri Krishan Gupta. Sh. H. R. Chugh, PW1, the summoned witness from the House Tax Office has deposed that the property bearing no. B55, East Jyoti Nagar, Delhi has been entered in the records of House Tax Register in the name of Sh. S. K. Gupta. He further deposed that the house tax has been started to be paid since 01.04.1988. The receipt for the payment of the house tax is Ex. P1. PW1 has proved the house tax receipt Ex.
P1. Therefore, what is crystal clear beyond any shadow of doubt that the true title owner of the property in question is none else but the plaintiff, Sh. Shri Krishan Gupta.
48.The other limb of this issue is whether the plaintiff had constructed boundary wall and tin shed therein. The plaintiff has deposed in his examination inchief that he had got constructed a large room and a kitchen. This fact stands corroborated by the testimony of the summoned witness PW2 from the House Tax Department. The plaintiff has further deposed that the had got constructed boundary wall and a tin shed therein. However this evidence of the plaintiff stands rebutted ::36::
as the defendants have not led any evidence to controvert this assertion of the plaintiff. Moreover the plaintiff has placed on record various receipts showing that the he had indeed got constructions done therein. Even otherwise, the fact that the plaintiff had got constructed large room and a kitchen has already been corroborated by the deposition of PW2, the summoned witness from the House Tax Department. Therefore, to a reasonable and prudent man, it would be but natural that the constructions within the suit property would be raised after only the raising of the boundary wall.
49.Therefore on the basis of the preponderance of probabilities, it stands proved that the plaintiff had got constructed boundary wall and a tin shed herein. This issue is therefore decided in favour of the plaintiff and against the defendants.
50.ISSUE No. 5 - The onus to prove this issue was conferred upon the plaintiff. It was for the plaintiff to prove that he was entitled to the relief of property bearing no. B55, East Jyoti Nagar, Loni Road, Shahdara, Delhi falling within khasra no. 873, village Gokulpuri. It has already been discussed (issue no. 2) that the defendant no. 4 has failed to prove adverse possession in his favour. And further that there has been no concealment and suppression of material facts (issue no. 3). It has also been discussed that the plaintiff is the true owner of the ::37::
property in question vide registered sale deed in his favour (issue no.
4). Therefore, in view of the findings on these aforesaid issues, it must follow as a consequence that the plaintiff is entitled to the relief of the possession of the suit property. This issue is therefore decided in favour of the plaintiff and against the defendants. The plaintiff is entitled to the relief of possession of property bearing no. B55, East Jyoti Nagar, Loni Road, Shahdara, Delhi falling within khasra no. 873, village Gokulpuri, Delhi.
The ons to prove these issue was conferred upon 51.ISSUE No. 6 & 7 the plaintiff. It was for the plaintiff to prove that he was entitled to the damages as claimed. The plaintiff has claimed damages to the tune of Rs. 90,000/ from all the defendants jointly and severally coupled with damages @ Rs. 2500/ per month. The plaintiff has not led any evidence to show as to on what basis and on what parameters these damages have been assessed. Neither the defendants have led any cogent evidence on this point. In my view, it would be reasonable if the plaintiff is awarded damages @ Rs. 500/ per month from the date of filing of the suit till the actual vacation of the suit property. Inasmuch as the defendant no. 4 was in occupation of the suit property, it can only be defendant no. 4 who would be liable to pay this damages to the plaintiff. This issue is answered accordingly in favour of the plaintiff ::38::
and in favour of the defendants.
52.RELIEF In view of the findings on the aforesaid issues, this suit of the plaintiff stands decreed. The plaintiff is entitled to the possession of property bearing no. B55, East Jyoti Nagar, Loni Road, Shahdara, Delhi falling within khasra no. 873, village Gokulpuri, Delhi. The plaintiff is also entitled to damages @ Rs. 500/ per month from defendant no. 4 from the date of filing of the suit till the actual vacation of the suit property. Costs of the suit is also awarded in favour of the plaintiff and against the defendants. The decreesheet be prepared accordingly. This file be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
ON 08th August, 2008 CIVIL JUDGE
KKD COURTS
DELHI