Delhi District Court
Delhi Pinjra Pole Society (Regd.) vs . Sharda Devi on 4 July, 2019
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 58/2019
UNIQUE CASE ID NO.: 617237/2016
IN THE MATTER OF :
Delhi Pinjra Pole Society (Regd.)
9271, Gaushala Kishan Ganj,
Delhi110006.
Through its Secretary,
Sh. Prakash Chand Barathi ....Plaintiff
VERSUS
Smt. Sharda Devi
W/o Shri Nathu Prasad
Room No. 9271/26,
Ground Floor, Gaushala,
Delhi Pinjra Pole Society,
Kishan Ganj, Delhi110006. ....Defendant
SUIT FOR POSSESSION, PERMANENT INJUNCTION & DAM
AGES/ MESNE PROFIT OF RS.14,000/
Date of institution of the Suit : 18/03/2016
Date on which Judgment was reserved : 23/05/2019
Date of Judgment : 04/07/2019
Suit No. 58/2019 Page 1 of 30
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
:: J U D G M E N T ::
By way of present judgment, this court shall adjudicate
upon suit for possession, permanent injunction & damages/ mesne
profit of Rs.14,000/ filed by the plaintiff against the defendant.
CASE OF THE PLAINTIFF AS PER PLAINT
Succinctly, the necessary facts for just adjudication of
the present suit, as stated in the plaint, are as under:
1. The plaintiff is a Registered Society duly registered under the
Societies registration Act with the Registrar of Society, having
registration No. S79 of 193334. The aforesaid Society is be
ing run with the assistance of donations and charity received
from various sources/ persons and the Society is protecting
lives of more than 1200 cows and approximately 1000 of them
are unproductive in every respect. The premises bearing no.
9271, Gaushala Kishan Ganj, Delhi110006 is owned by the
plaintiff. The Secretary of the plaintiff is empowered by the
Constitution of the plaintiff society to file the present suit and
to do all acts and deeds, which are necessary and in the inter
est of the plaintiff in the present suit.
2. The defendant has illegally occupied and wrongfully acquired
with respect to one room at ground floor bearing no. 9271/26,
Gaushala, Pinjra Pole Society, Kishan Ganj, Delhi110006 in
the month of May 2007, without having any right, title and in
terest in the property in question. The property in question
was in occupation and possession of the plaintiff prior to May
2007 and was in use by the plaintiff for their personal use.
Suit No. 58/2019 Page 2 of 30
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
The defendant has no right, title or interest in the said prop
erty as the possession of the defendant is as of a trespasser
and illegal occupant.
3. The plaintiff society several times asked the defendant to va
cate the said premises but the defendant is not inclined to
concede the request of the plaintiff and is continuing in pos
session of the suit premises. The possession of the defendant
in the suit property is illegal and as of unauthorized occupant
and the defendant is liable to pay damages at the rate of
Rs.4,000/ per month for illegal use and occupation of the
suit property, which is the market rate of rent as on the date
of issuance of notice as well as prior to issuance of notice.
4. When the defendant did not vacate the suit premises, thus,
the plaintiff got issued legal notice dated 07.11.2015, whereby
the plaintiff asked the defendant to handover the peaceful
and vacant possession to the plaintiff within 7 days from the
receipt of the said notice and further asked to pay a sum of
Rs.4,000/ per month as damages for illegal use and occupa
tion charges of the suit property. The said notice has been
duly served upon the defendant but the defendant failed to
handover the peaceful and vacant possession of the suit
property and has sent a false and frivolous reply to the said
legal notice.
CASE OF THE DEFENDANT AS PER WRITTEN STATEMENT
Summons for settlement of issues were issued to the de
fendant. Succinctly, the case of the defendant is as under:
Suit No. 58/2019 Page 3 of 30
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
1. The suit, as framed and filed, is misconceived and deserves
rejection as the plaintiff has got no right to file the suit
against the defendant as the defendant is living in the prop
erty as per her own rights since 1920 through her predeces
sorininterest, Shri Banwari Lal, who had died on
25.07.1978, leaving behind 6 sons and 3 daughters and de
fendant is one of them and living in the property after the
death of her father without there being any disturbance or in
terference from anybody and defendant has, thus, become
owner of the property.
2. The present suit is barred by limitation, having been filed be
yond the period of 12 years as the defendant is in possession
through her predecessorsininterest since 1920 and on her
own since birth.
3. The plaintiff has got no original Certificate of registration with
it nor there is any original Registration Certificate in the file of
Registrar of Firms and Societies and the photostat copy, as re
lied by the plaintiff, is of no use. The Site Plan, as filed by the
plaintiff on the Court record, is not correct and the correct
Site Plan has been filed by the defendant.
4. The plaintiff is not the owner of the property as no document
of ownership of the suit property has been filed on Court
record nor it has any title Deed in respect of the same. The
number of property, as mentioned by the plaintiff, is 9271/26
but there is no property with this number.
5. On merits, the contents of the plaint have been denied and it
has been submitted that the self styled Secretary has got no
Suit No. 58/2019 Page 4 of 30
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
right to institute the suit as the Secretary is not elected even
as per the Constitution and Memorandum of Articles filed by
the plaintiff on Court record. When the defendant had occu
pied the property in May, 2007, then why the plaintiff did not
restrain the defendant from occupying the property. The de
fendant has electricity as well as water connections in her
name in the suit property. The possession of the defendant
was never challenged by anybody. The defendant is living in
the property as per her own rights and is not liable to pay any
damages even after service of the legal notice.
REPLICATION AND ISSUES
The plaintiff has filed the Replication controverting the
allegations/ contentions in the written statement of the defendant
and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were
framed vide order dated 26/09/2016:
ISSUES
1. Whether the suit of the plaintiff is barred by limita
tion? OPD.
2. Whether the plaintiff is the duly registered society
and owner of the property? OPP.
3. Whether the suit property under the possession of
the defendant does not bear the property no.
9271/26? OPD.
4. Whether the plaintiff is entitled to the decree of pos
session as prayed for? OPP.
Suit No. 58/2019 Page 5 of 30
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
5. Whether the plaintiff is entitled for damages, if so,
at what rate and for what period? OPP.
6. Whether the plaintiff is entitled to decree of perma
nent injunction as prayed for? OPP.
7. Relief.
(Note: Inadvertently onus to prove issue No.2 vide order dated
26.09.2016 was placed upon the defendant, however, vide order
dated 05.07.2018, the same was corrected. Onus to prove this issue
is upon the plaintiff).
EVIDENCE OF THE PLAINTIFF AND DEFENDANT AND DOCU
MENTS RELIED UPON BY THEM:
The plaintiff, in order to prove its case, led plaintiff evi
dence and got examined Sh. Parkash Chand Barathi as PW1. PW
1, in his testimony, has relied upon the following documents:
1. Certified copy of Registration of the plaintiff society is Ex.PW
1/1.
2. Constitution and Memorandum of plaintiff society is Ex.PW
1/2.
3. Legal Notice dated 07.11.2015 is Ex.PW1/3.
4. Postal receipt is Ex.PW1/4.
5. Reply sent on behalf of the defendant is Ex.PW1/5.
6. Envelope containing reply is Ex.PW1/6.
7. Site Plan is Ex.PW1/7.
8. Photocopies of House Tax Bills are MarkA and MarkB.
The plaintiff also examined Sh. Vinod Aggarwal, Legal
Advisor of the plaintiff society as PW2.
Suit No. 58/2019 Page 6 of 30
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
On the other hand, defendant examined herself as
DW1, who has filed her evidence by way of affidavit and relied
upon the following documents :
1. Site Plan is Ex.DW1/1.
2. Photocopy of Water Bill dated 22.02.2007 is MarkA.
3. Electricity Bill dated 05.05.2003 is MarkB and
4. Copy of the complaint made to police post, Shidi Pura dated
10.12.2000 is MarkC.
Vide order dated 13/12/2018, DE was closed and Ld.
Counsel for the plaintiff sought opportunity to adopt the rebuttal
evidence led in the case titled as Delhi Pinjra Pole Society Vs.
Govind Ram, in this case, which was permitted by the Court on the
same day as the Ld. Counsel for the defendant has given no objec
tion for the same.
The plaintiff, in order to prove its case, led plaintiff evi
dence in rebuttal in the case titled as Delhi Pinjra Pole Society Vs.
Govind Ram and got examined Sh. Parkash Chand Barathi as
RPW1. RPW1, in his testimony, has relied upon the Site Plan
Ex.RPW1/1.
This Court heard the final arguments as advanced by
Ld. Counsel for the plaintiff and Ld. Counsel for the defendant. I
have perused the material available on record.
ISSUE WISE FINDINGS:
ISSUE NO.1
1. Whether the suit of the plaintiff is barred by limitation?
OPD.
Suit No. 58/2019 Page 7 of 30
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
The defendant has failed to pointout, under which Arti
cle of the Schedule of The Limitation Act, the present suit is barred
by Limitation. The present suit has been filed by the Plaintiff on the
basis of title. The Limitation period, as per Article 65 of the Sched
ule of Limitation Act, envisages twelve years when the possession of
the defendant becomes adverse to the plaintiff. It is apposite to
mention here the Principles of Adverse Possession.
PRINCIPLES OF ADVERSE POSSESSION:
I have also profit to refer Paras No.15 to 21 of the
Hon'ble Supreme Court of India in the case of Bangalore Develop
ment Authority Versus N. Jayamma decided on March 10,
2016 in Civil Appeal No. 2238 of 2016:
"15. Coming then to the question whether the
plaintiffsrespondents could claim adverse pos
session, we need to hardly mention the well known and oft quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when pos session is peaceful, open, continuous and hostile. The essentials of adverse possession were succinctly summedup by this Court in Kar nataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 in the following words: "11.In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a Suit No. 58/2019 Page 8 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled principle that a party claim ing adverse possession must prove that his possession is "nec vi, nec clam, nec pre cario", that is, peaceful, open and continu ous. 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 ac tual, visible, exclusive, hostile and contin ued over the statutory period. (See S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). 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. 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 estab Suit No. 58/2019 Page 9 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi lish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128)."
"16. Reference may also be made to the decision of this Court in Saroop Singh v. Banto (2005) 8 SCC 330, where this Court emphasised the im portance of animus possidendi and observed: "29. 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 ad verse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC
376).
30. "Animus possidendi" is one of the ingre dients of adverse possession. Unless the per son possessing the land has the requisite animus the period for prescription does not commence. As in the instant case, the ap pellant categorically states that his posses sion is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1 SCC 371, SCC para 21.)"
"17. Also noteworthy is the decision of this Court in Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639, where this Court held that claim of ti tle to the property and adverse possession are in terms contradictory. This Court ob served: Suit No. 58/2019 Page 10 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi "4. As regards the first plea, it is inconsis tent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hos tile adverse possession to the knowledge of the transferor or his successor in title or in terest and that the latter had acquiesced to his illegal possession during the entire pe riod of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implica tion that he came into possession of the land lawfully under the agreement and con tinued to remain in possession till date of the suit. Thereby the plea of adverse posses sion is not available to the appellant."
"18. To the same effect is the decision of this Court in Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543, where this Court elaborated the significance of a claim to title viz.aviz. the claim to adverse possession over the same prop erty. The Court said: "15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a law ful title will not be permitted to show that his possession was hostile to another's title.
One who holds possession on behalf of an other, does not by mere denial of that other's title make his possession adverse so Suit No. 58/2019 Page 11 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi as to give himself the benefit of the statute of limitation. Therefore, a person who en ters into possession having a lawful title, cannot divest another of that title by pre tending that he had no title at all."
"19) After taking note of the principle of law re lating to adverse possession in the aforesaid manner, this Court commented about the erro neous approach of the High Court in the follow ing manner: "19. The Courts below have not seen the plaintiff respondent's claim from the above perspectives.
The High Court has, in particular, remained oblivious of the principle enunciated in the deci sions to which we have referred herein above. All that the High Court has found in favour of the plaintiffs is that their possession is established. That, however, does not conclude the contro versy. The question is not just whether the plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the appel lantBDA. The fact that the plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorized occupation of property that stood vested in the BDA."
Suit No. 58/2019 Page 12 of 30Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi "20) In addition to the discussion contained in M. Venkatesh case noted above, we may also add what was held in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. 15 (2007) 6 SCC 59: "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse posses sor on the acquiescence of the owner to the hos tile acts and claims of the person in possession. It follows that sound qualities of a typical ad verse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; and City of Rock Springs v. Sturm)."
"21) In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors. 16 (2013) 6 ADJ 119, the Alla habad High Court has observed as under: "21. The principle of adverse possession and its consequences wherever attracted has been rec ognized in the statute dealing with limitation.
The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian con tinent which was under the reign of East India Company, by an authority of Privy Council in the East India Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies) 43.
xx xx xx Suit No. 58/2019 Page 13 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi "23. The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A pre scription, by which a right is acquired, is called an 'acquisitive prescription'. A pre scription by which a right is extinguished is called 'extinctive prescription'. The distinc tion between the two is not of much practi cal importance or substance. The extinction of right of one party is often the mode of ac quiring it by another. The right extin guished is virtually transferred to the per son who claims it by prescription. Prescrip tion implies with the thing prescribed for is the property of another and that it is en joyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nul lius. The acquisition in such cases does not depend upon occupation for any particular length of time."
(Portions bolded in order to highlight) I have also profit to refer paras No.20 to 23 of the Judg ment passed by the Hon'ble Supreme Court in Civil Appeal No.83 of 2008 in case titled as Dagadabai (Dead) by LRs Versus Abbas @ Gulab decided on April 18, 2017: "20) Fourth, the High Court erred funda mentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea."
Suit No. 58/2019 Page 14 of 30Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi "21) In our considered opinion, these obser vations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the prop erty on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally wellsettled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants."
"22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of ac tual, peaceful, and uninterrupted continu ous possession of the person over the suit property for more than 12 years to the ex clusion of true owner with the element of hostility in asserting the rights of owner ship to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriv ing the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it."Suit No. 58/2019 Page 15 of 30
Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi "23) In this case, we find that the defen dant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the in stance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by ad verse possession against the plaintiff."
(Portions bolded in order to highlight) FINDINGS AND CONCLUSIONS There is no act on the part of defendant so as to consti tute her possession hostile/adverse to that of the plaintiff. The de fendant has not led any evidence to the effect that she got the prop erty mutated in her own name in the record of MCD claiming own ership of the suit property nor anywhere in the official record, she got herself represented to be the owner of the suit property. In the absence of any specific point/day, since when onwards possession of the defendant became adverse to the plaintiff, the limitation to file the present suit does not start and therefore, present suit can not be said to be barred by limitation.
Moreover, there is also no pleading in the entire Written Statement of the defendant that she is claiming adverse possession against the Plaintiff. The pleadings of defendant are categorical that she is independent owner of the property and in possession for quite long time. When the defendant is claiming independent own Suit No. 58/2019 Page 16 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi ership of the property, then question of adverse possession does not arise, as no person can claim the adverse possession against him self/herself. This would be totally against the fundamental princi ples of the adverse possession. The Hon'ble Supreme Court has cat egorically held that first of all, the defendant(s) has/have to admit that Plaintiff(s) is/are the owner of the property and thereafter, to plead and prove the principles of nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when pos session is peaceful, open, continuous and hostile. The Hon'ble Supreme Court has also held that claiming of ownership in the property and adverse possession are contradictory to each other. The defendant has categorically and specifically denied the owner ship of the Plaintiff and on the contrary, the defendant is claiming her own independent ownership rights in the suit property. The ba sic plea in the present suit is of title versus title and identification of the property and not the adverse possession, as the defendant has failed to even plead and prove the fundamentals and basic re quirements of the adverse possession, as required under law.
In view of the discussions made hereinabove, the issue No.1 is decided against the defendant and in favour of the Plaintiff. ISSUE NO.3
3. Whether the suit property under the possession of the de fendant does not bear the property no. 9271/26? OPD The onus to prove this issue is upon the defendant. In the written statement, the defendant has set up that the plaintiff has wrongly alleged that the suit property to be bearing number Suit No. 58/2019 Page 17 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi 9271/26. As per the defendant, there is no property with number 9271/26. The defendant in her examinationinchief deposed on the same lines. She admitted that Shri Nathu Ram/ Nathu Lal, hus band of the defendant, is the tenant with the plaintiff society in cer tain portion in the property no. 9271 and eviction petition has al ready been filed by the Plaintiff against Shri Nathu Ram under Sec tion 22 of DRC Act.
The defendant denied the suggestion that separate num ber has been given to said tenancy in the property number 9271. The defendant has also relied upon the documents and in all the documents, address has been mentioned as 9271, Gaushala Pinjra Pole. The electricity bill MarkB and Water Bill MarkC also bear property number as 9271 and the same are in the name of husband of the defendant Shri Nathu Lal Sharma.
In the event, where defendant admits tenancy in her husband's name, therefore, defendant was required to bring on record specific evidence to the effect that the documents MarkB and MarkC are specifically related to the suit property and not to any other properties, allegedly put in the tenancy of her husband Sh. Nathu Lal/ Sh. Nathu Ram. Further, the defendant herself vol untarily deposed that property number 9271 is having a private property and numbers are allocated arbitrarily by the plaintiff. Thus, the allocation of private numbers by the plaintiff has been admitted by the defendant whereas, defendant has not brought any evidence to the effect that suit property is known by number 9271 or by any other number and not by 9271/26. The defendant has also failed to bring any evidence that she is in possession of the suit Suit No. 58/2019 Page 18 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi property since 1920 or from when she came in possession of the suit property.
Moreover, while cross examining the plaintiff's witness, the manner, in which questions have been put to PW1, itself shows that plaintiff's society has given private numbers to its different por tions. Following responses of PW1 during crossexamination clearly reflect that plaintiff's society has given various numbers to its various portions: "It is correct that I have filed electricity bills as above in respect of premises of 9271/1 to 9271/24............ The distance between 9271/25 and 26 is of 150 yards. It is correct that there are rooms belonging to the defendant and his wife Suman Lata in between number 9271/25 and
26.................. There is cowshed in between prop erty number 9271/25 and 26 which has no num ber.............. It is correct that there is dispensary also in between property number 9271/25 and 26 which has no number because it is the property of the plaintiff and therefore, no number has alloted to it. It is wrongly denied that there are four shops also in between property number 9271/25 and 26 as there is no shop in between................ There is passage in front of these properties number 9271/25 and 26............... It is correct that we have given numerical number to the different rooms as per our own convenience."
From the above testimony, it is clear that when PW1 is made to admit that there is a dispensary and cowshed in between properties numbers 9271/25 and 26, the defendant on her part ad Suit No. 58/2019 Page 19 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi mits the existence of properties bearing nos. 9271/25 and 26. PW1 was further made to admit that plaintiff had given numerical num bers to the different rooms, as per convenience also lead to admis sion on the part of the defendant that plaintiff has given private numbers to different rooms. When such is the stand of the defen dant then, it was for the defendant to come forward with cogent evi dence to prove that suit property does not bear number 9271/26 but the defendant has failed to bring any such evidence.
Accordingly, in view of discussions made hereinabove, issue no. 3 is decided against the defendant and in favour of the plaintiff.
ISSUES NO.2 AND 42. Whether the plaintiff is duly registered society and owner of the property? OPP
4. Whether the plaintiff is entitled to the decree of posses sion as prayed for? OPP The issues No.2 and 4 are interrelated and intercon nected together and accordingly, they are decided together.
The plaintiff examined Sh. Prakash Chand Barathi as PW1, who filed his affidavit Ex. PW1/A in examinationinchief. As per order dated 13/12/2018, rebuttal evidence led in the case of Delhi Pinjra Pole Society Vs. Govind Ram (Civil Suit No. 59/19), be read in this suit also. PW1 in his examinationinchief deposed that plaintiff is a registered society duly registered under the Soci eties Registration Act with the Registrar of Society, having registra tion number S79 of 193334. The certified copy of Certificate of Suit No. 58/2019 Page 20 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi Registration of Society is Ex. PW1/1 (OSR). The Memorandum of Association and Constitution is Ex. PW1/2. He further deposed that the premises bearing no. 9271, Gaushala, Kishan Ganj, Delhi is owned by the plaintiff and the suit property i.e. the one room at ground floor bearing no. 9271/26, Gaushala, Delhi Pinjra Pole, Kis han Ganj, Delhi110006 was illegally and wrongfully occupied by the defendant. In rebuttal chief examination, he deposed that plain tiff is the owner/landlord of entire property bearing no. 9271, Gaushala, Kishan Ganj, Delhi110006 and the said entire property is having Gaushala Complex, wherein the Cows are being kept and apart from the said premises, various rooms/shops are also situ ated, which are given separate numbers by the plaintiff society. He deposed that entire property is known as 9271, Gaushala, Delhi Pinjra Pole, Kishan Ganj, Delhi110006, as shown in the site plan Ex. RPW1/1.
In the crossexamination, he deposed that 9271 is the entire property and the Plaintiff has given private numbers from 9271/1 to 9271/35 approximately. He further deposed that plain tiff is the owner of property number 9271, which plaintiff had pri vately divided in different parts, which was having different num bers, such as 9271/1, 9271/2 and so on. He further deposed that apart from house tax record for the property no. 9271, the plaintiff did not have title documents, specifically with respect to property number 9271/26. He further deposed that he did not have knowl edge, if there exists any documents of title in favour of the plaintiff in respect of property number 9271. He further deposed that there was no property number at the time when MarkC (Jamabandi) was Suit No. 58/2019 Page 21 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi issued. He also admitted that Mark C did not have the name of Delhi Pinjra Pole Society. He admitted that document MarkC Jam abandi has the name of Pinjra Pole Dharamshala only. He deposed that property number 9271 has khasra nos. 524, 534, 535 and khatoni number 257. However, he was unable to say property num ber 9271 falls under which khasra number. He was unable to tell which particular khasra of property number 9271 was there, as there was no municipal number at that time. He deposed that MarkC pertains to the year 191718. He admitted that Delhi Pinjra Pole Society was formed in the year 193334, as per Registration Certificate. He admitted that plaintiff did not have registered Title Deed in respect of property number 9271/25 and 9271/26. He fur ther deposed that in MCD record, mutation is in favour of society but no document to this effect has been filed on court record. He admitted that MarkC was filed on the court record on the asking of the court and not along with the plaint.
PW2 in his examinationinchief deposed that plaintiff is the owner of the suit property and suit property was in occupa tion and possession of the plaintiff prior to May, 2007 and was used by the plaintiff for its use. In the crossexamination, he deposed that he had seen the place where defendant has resided and also the place where defendant has trespassed. On being asked, as to whether he can show any document by which ownership of prop erty number 9271/26 vested with plaintiff, to which he showed MarkC. On further being asked that MarkC did not show the number 9271/26, he answered that plaintiff was owner of the en tire property number 9271 and on further being asked that 9271 Suit No. 58/2019 Page 22 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi was not mentioned in MarkC, he deposed that it was an old docu ment and the Corporation was formed later on and number was al loted by the Corporation later on. He deposed that he could file document of 9271, as issued by MCD in favour of the plaintiff. He further deposed that house tax receipt was the only ownership doc ument of the plaintiff. He denied the suggestion that plaintiff has no title documents in respect of the suit property.
It is the case of the plaintiff that entire property bearing no. 9271, Gaushala, Delhi Pinjara Pole Society is owned by it and various portions within it have been given private numbers and some portions of the said property are bearing private numbers. Factum of defendant's husband being tenant in respect of certain portion, under the plaintiff has not been denied by the defendant. The plaintiff filed Site Plan Ex. RPW1/1 showing the entire com plex situated on property bearing no. 9271 and within the said complex, suit property was shown in red colour. The plaintiff did not examine the Draughtsman to prove the site plan but RPW1 cat egorically deposed that he was present when the same was pre pared and same was prepared in the Gaushala itself. He denied the suggestion that site plan had lot of mistakes and was not as per the actual site. The Defendant did file her site plan but the site plan filed by her appears to be the portion under her own occupation but the same does not reflect the entire property bearing No.9271. The site plan filed by the defendant does not reflect the exact location of the suit property in the property bearing No.9271 and there is no contradictory plan, which was filed by defendant in order to dis prove the site plans filed by the Plaintiff. The defendant in her Suit No. 58/2019 Page 23 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi crossexamination deposed that nobody is the owner of the entire Gaushala Complex. The Court has observed that witness has re sponded this question after taking sufficient time. The DW1 has deposed that plaintiff's society is running Gaushala in the complex. She has further deposed that Sh. Nathu Lal is the tenant with the Plaintiff Society and has been depositing rent with the Plaintiff Soci ety. She has further admitted that no Electricity or water connec tion is available in the suit property. She has further admitted that in the absence of water, electricity connection and other amenities, suit property cannot be used for residence.
One fails to understand, the defendant who has herself admitted that the Defendant's husband to be the tenant in certain portion of the property No. 9271 under the Plaintiff, now how come she suddenly became the owner of the suit property, which is part and parcel of the property no. 9271. The Plaintiff has been admit tedly the landlord of certain portion under the tenancy of the Defen dant's husband and the defendant has failed to bring anything on the record to show that she or her predecessorininterest has any semblance of right in the suit property. The documents, which are filed by the defendant, are of no help to the defendant and the de fendant cannot take shelter under the said documents, as admit tedly the defendant's husband is the tenant in certain portion of Property No.9271 and admittedly, there is no electricity and water connections in the suit Property. Considered from any view point, it does not lie into the mouth of the defendant to challenge the own ership of the Plaintiff after her categorical admission regarding ten Suit No. 58/2019 Page 24 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi ancy of her husband in respect of certain portion under the Plain tiff.
When the defendant has not disputed the location of the suit property in the site plan Ex.RPW1/1 and when defendant her self has not placed on record any site plan to show the correct posi tion and when further, the defendant did not deny the factum of tenancy of her husband in respect of the certain portion under the plaintiff and when further, the defendant failed to enlist the mis takes in the site plan so as to make it disbelievable then, the site plan can be relied upon. The nature of construction, where the suit property as well as the tenanted property of the defendant, are situ ated within the complex, from where plaintiff is running its Gaushala, it can hardly be disbelieved that plaintiff has better right than the defendant. The defendant has not disputed that plaintiff is paying house tax in respect of property number 9271. The defen dant has also not disputed that the entire property bearing no. 9271 is mutated in the records of MCD in the name of the plaintiff. It is correct that mutation in the records of Municipal Corporation itself is not sufficient to prove the ownership of the property but when the said fact is placed in juxtaposition to the person who claims to be in possession of property since 1920 without paying a single rupee as house tax then, certainly such state gives advantage to the person who has been paying house tax. Further, the defen dant did not come forward to clarify, how her predecessorininter est had occupied the suit property. Nothing has been explained by the defendant. The defendant has not explained as to who was in possession of the same and even if it was a permissive occupation Suit No. 58/2019 Page 25 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi then also, the defendant has remained silent. Apart from this, the defendant has set up the claim of adverse possession against the plaintiff in respect of the suit property but the claim of adverse pos session includes within itself admission of ownership of the plaintiff because plea of adverse possession can be set up only against true owner. Hon'ble Supreme Court in Dagadabai (dead) by LRs vs. Abbas @ Gulab Rutam Pinjari 2017 (5) SCALE 22 held as under: "20. Fourth, the High Court erred fundamen tally in observing in para 7 that "it was not nec essary for him (defendant) to first admitted the ownership of the plaintiff before raising such a plea."
"21. In our considered opinion, these observa tion of the High Court are against the law of ad verse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the prop erty. It is equally well settled that such person must necessarily first admit the ownership of the true owner over the property to the knowl edge of the true owner and secondly, the true owner has to be made a party to the suit to en able the Court decide the plea of adverse pos session between the two rival claimant."
Suit No. 58/2019 Page 26 of 30Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi Thus, from the claim of the defendant itself as well as from the nature of construction of plaintiff's Gaushala and location of the suit property within the complex, it is clear that plaintiff has better right than the defendant. The Plaintiff society has been able to prove on record that the Plaintiff has much far better rights in the suit property and the Society has also been able to prove the documents Exhibit PW1/1 and Exhibit PW1/2. The Ld. Counsel for defendant has relied upon the judgment passed by Hon'ble High Court of Delhi in the case titled as Ram Pratap Vs. Purshottam @ Lala Ram 237 (2017) DLT 708. The said judgment is not at all applicable to the peculiar facts and circumstances of the present case.
In view of the discussions made hereinabove, the issues no.2 and 4 are decided in favour of the Plaintiff and against the de fendant.
ISSUE NO.5
5. Whether the plaintiff is entitled for damages, if so, at what rate and for what period? OPP Onus to prove this issue is upon the plaintiff. The plaintiff has claimed damages @ Rs.4,000/ per month stating that same is the prevalent rent in the area in respect of the suit prop erty. PW1 deposed on the same lines in his examinationinchief but PW1 has not been crossexamined on this aspect. The defen dant in crossexamination denied the suggestion that suit property could fetch Rs.4,000/ per month as rent. The plaintiff has not ex Suit No. 58/2019 Page 27 of 30 Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi amined any independent witness in this regard nor has given any basis of arriving at such figure nor did it has given details of the nearby property fetching such rent including the name of tenant and landlord. However, keeping in mind the fact that nowadays jhuggis within the city of Delhi costs Rs.2,000/ to Rs.3,000/ per month and keeping in mind the fact that award of damages neces sarily and inevitably involves certain amount of guess work because even similar portion almost at similar location will give different amount of rent, depending upon number of other market factors. Hence, in these circumstances, interest of justice would be served if plaintiff is awarded damages @ Rs.2,000/ per month towards mesne profits. Accordingly, issue No.5 is also decided in favour of the Plaintiff and against the defendant in the aforesaid terms. ISSUE NO.6
6. Whether the plaintiff is entitled to decree of perma nent injunction as prayed for? OPP.
The defendant is claiming ownership in respect of the suit property and in this manner, there is definitely threat to the plaintiff that the defendant may not create any third party right or part with the possession of the suit property to some third party. Considering overall facts and circumstances of the present case and on the discussion made hereinabove in respect of issues no.2 and 4, the plaintiff has also been able to prove this issue by cogent and convincing evidence.
Accordingly, this issue is also decided in favour of the Plaintiff and against the defendant.
Suit No. 58/2019 Page 28 of 30Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(a) A decree of possession is passed in favour of the plaintiff and against the defendant thereby directing the defendant to handover the vacant, peaceful and physical possession of one room at ground floor bearing no. 9271/26, Gaushala, Pinjra Pole Society, Kishan Ganj, Delhi110006, as described and lo cated in Ex. PW1/7 and Ex.RPW1/1. The defendant is granted three months' time to vacate the suit property.
(b) a decree of recovery of damages/ mesne profits is also passed in favour of the plaintiff and against the defendant for unlaw ful and unauthorized use and occupation of the suit property @ Rs.2,000/ per month from filing of the suit till recovery of the possession of the suit property by the plaintiff from the defendant. The decree in respect of this relief will not be exe cuted until and unless the Plaintiff will pay the deficient court fee till the disposal of the suit.
(c) A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant thereby restraining the defendant, her legal heirs, representatives, agents, nominees, associates etc. from alienating and creating third party inter est in the suit property i.e. Ground floor bearing no. 9271/26, Gaushala, Pinjra Pole Society, Kishan Ganj, Delhi110006, as described and located in Ex. PW1/7 and Ex.RPW1/1.
Suit No. 58/2019 Page 29 of 30Delhi Pinjra Pole Society (Regd.) Vs. Sharda Devi
(d) The cost of the suit is also passed in favour of Plaintiff and against the defendant.
Decreesheet be prepared in terms of this Judgment. File be consigned to Record Room after due compliance.
Announced in the open court on this 4th Day of July, 2019. (ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 58/2019 Page 30 of 30