Delhi District Court
Rca No.126/2014: "Smt.Rameshwari vs Shri Balram" & Dod: 07.11.2014 on 7 November, 2014
RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014
RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEI:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal No.126/2014
In the matter of:
Smt.Rameshwari,
W/o Shri Gopi Ram,
R/o RZ93G, Gali No.3,
Vijay Enclave, Palam Road,
New Delhi110 077.
.....Appellant
(Through Shri R.S Godara, Advocate)
Versus
Shri Balram,
S/o Shri Jai Lal,
R/o 318, Village Munirka,
New Delhi.
.....Respondent
(Through Ms.K. Kiran, Advocate)
Date of Institution of Appeal : 27.05.2014
Date of reserving judgment : 05.11.2014
Date of pronouncement : 07.11.2014
FIRST APPEAL U/s 96 CPC AGAINST THE IMPUGNED JUDGMENT/DECREE
DATED 21.04.2014, PASSED BY Ms.NAMRITA AGGARWAL, Ld.CCJARC1 (CENTRAL),
TIS HAZARI COURTS IN CS No.106/2013/97, TITLED AS,
"Smt.RAMESHWARI V/s SHRI BALRAM"
AND
RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 1 of 22
RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014
RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
Regular Civil Appeal No.127/2014
In the matter of:
Shri Gopi Ram,
S/o Shri Ami Lal,
R/o RZG93, Gali No.3,
Vijay Enclave, Palam Road,
New Delhi110 077.
.....Appellant
(Through Shri R.S Godara, Advocate)
Versus
Shri Balram,
S/o Shri Jai Lal,
R/o 318, Village Munirka,
New Delhi.
.....Respondent
(Through Ms.K. Kiran, Advocate)
Date of Institution of Appeal : 27.05.2014
Date of reserving judgment : 05.11.2014
Date of pronouncement : 07.11.2014
FIRST APPEAL U/s 96 CPC AGAINST THE IMPUGNED JUDGMENT/DECREE
DATED 21.04.2014, PASSED BY Ms.NAMRITA AGGARWAL, Ld.CCJARC1 (CENTRAL),
TIS HAZARI COURTS IN CS No.109/2013/98, TITLED AS,
"SHRI BALRAM V/s SHRI GOPI RAM"
RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 2 of 22
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RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
07.11.2014
J U D G M E N T:
By way of this common judgment, two appeals being RCA No. 127/2014, titled as, "Shri Gopi Ram V/s Shri Balram & Anr." and RCA No. 126/2014, titled as, "Smt.Rameshwari Devi V/s Shri Balram" are being disposed off. The facts as well as the parties in both the appeals are common. The appeals are against two judgments, both dated 21.04.2014, passed by the Ld.Trial Court in two suits, i.e CS No.109/13/98, titled as, "Shri Balram V/s Shri Gopi Ram & Anr." and CS No.106/13/97, titled as, "Smt.Rameshwari Devi V/s Shri Balram". Before adverting to the grounds of appeal taken in the matter, the facts of the case as borne out from the record of both the cases are as under.
2. There are two parties in the litigation, on one hand is Shri Balram and on another hand is Shri Gopi Ram and his wife Smt.Rameshwari Devi. Shri Balram and Shri Gopi Ram are cousin brothers. For the purpose of convenience, the parties in this judgment are being referred to by their names and not as per the status before the Ld.Trial Court. The first suit, which was a suit for injunction simplicitor was filed on 29.05.1997 by Smt.Rameshwari Devi, W/o Shri Gopi Ram against Shri Balram, interalia claiming herself to be owner of property bearing No.RZ93G, Gali No.3, Vijay Enclave, Palam Road, New Delhi45, admeasuring 50 sq.yards (hereinafter referred to as the "suit property") on the strength of documents like Agreement to Sell, Affidavit and Receipt, dated 11.05.1983, executed in her favour by Shri Mohar Singh, S/o Shri Chander Singh. She averred in the said suit that Shri Balram had been trying to dispossess her from the suit RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 3 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
property and as such, she sought decree of permanent injunction against him, restraining him, his nominees, representatives, family members, attorneys etc., from dispossessing her from the suit property and not to interfere in her peaceful enjoyment and possession of the suit property. In the said suit, Shri Balram filed his written statement, interalia claiming himself to be the owner of suit property on the strength of documents of title dated 16.06.1983 in the nature of General Power of Attorney (GPA), Agreement to Sell, Affidavit and registered Receipt, executed in his favour by Shri Mohar Singh.
3. During the pendency of the aforesaid suit, Shri Balram on 28.07.1998 filed suit for possession and mesne profits against Shri Gopi Ram, husband of Smt.Rameshwari Devi, interalia claiming himself to be owner of the suit property. It was claimed in the suit by him that at or around January' 1995, Shri Gopi Ram was residing as a tenant in house No.RZ9, Mahavir Enclave, New Delhi from where he was evicted by the landlord and he was rendered homeless. He, his father and some other close relatives approached the father of Shri Balram with the request to allow Shri Gopi Ram to stay in the suit property for two months, i.e till the time an alternative arrangement was made by him for his residence. It was also averred that prior to shifting to the tenanted accommodation, Shri Gopi Ram had been residing in House No.318, Village Munirka, New Delhi, belonging to the father of Shri Balram. When after the expiry of two months, Shri Gopiram did not vacate the suit property, Shri Balram insisted for the possession of suit property which he avoided on one pretext or the other and ultimately the intention of Shri Gopi Ram became apparent to Shri Balram through the aforesaid false and frivolous suit got RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 4 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
filed by Shri Gopi Ram through his wife against him. Shri Balram vide notice dated 02.02.2008 terminated the licence of Shri Gopi Ram and asked him to vacate the suit property and when he did not do so, he filed the said suit claiming the possession as well as mesne profits/damages @ Rs.1,000/ per month w.e.f 01.05.1998. He also sought the arrears of rent amounting to Rs.12,000/ for the period from 01.05.1997 to 30.04.1998. Shri Gopi Ram resisted that suit by pleading facts that his wife Smt.Rameshwari Devi was the owner of suit property and further claimed that he had been residing in the suit property since the year 1983 and in support of his case, he also produced certain documents which I would advert to a little later in this judgment.
4. Both the suits were tried by one single Ld.Civil Judge and both the suits were disposed off vide separate judgments dated 21.04.2014, whereby the suit filed by the wife of Shri Gopi Ram was dismissed, whereas the suit filed by Shri Balram was decreed (hereinafter referred to as the "impugned judgments"). The reasoning given by the Ld.Trial Court in the impugned judgments is that Shri Balram had succeeded in proving his ownership to the suit property, whereas the documents of ownership propounded by the wife of Shri Gopi Ram did not inspire confidence and the documents of possession relied upon by Shri Gopi Ram were held to be fabricated. For the convenience, the documents exhibited in suit filed by Shri Balram, i.e CS No.109/13/98 would be referred to as per the exhibit marks put upon them, whereas the documents filed by Shri Gopi Ram/Smt.Rameshwari Devi would be referred to as per the exhibit marks given to them in the other suit. RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 5 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
5. I have heard arguments advanced at bar by Shri R.S Godara, advocate, learned counsel for Shri Gopi Ram/Smt.Rameshwari Devi and Ms.K. Kiran, advocate, learned counsel for Shri Balram and perused the trial court records of both the cases. The grounds of challenge argued by the learned counsel for Shri Gopi Ram/Smt.Rameshwari Devi succinctly summarized are as under.
6. (i) That the Ld.Trial Court was not right in holding the documents of title produced on record by Shri Balram to be correct and authentic and the similar documents of title propounded by the wife of Shri Gopi Ram as inspiring no confidence;
(ii) That the Ld.Trial Court was not right in discarding the documents showing possession of Shri Gopi Ram at the suit property from the year 1983 till date and;
(iii) That the Ld.Trial Court from the material on record should have held that Shri Gopi Ram/Smt.Rameshwari Devi were owners of suit property by adverse possession.
7. I will take up the aforesaid points one by one.
8. Title Documents:
Shri Balram has claimed ownership of the suit property by virtue of following documents:
(a) General Power of Attorney (GPA) dated Ex.PW3/2;
(b) Agreement to Sell Ex.PW3/3;
(c) Affidavit of Shri Mohar Singh Ex.PW3/3, all dated 16.06.1983;
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(d) Receipt Ex.PW5/A, executed by Shri Mohar Singh on 15.06.1983 The originals of aforesaid documents are on record, whereas the documents filed by Shri Gopi Ram/Smt.Rameshwari are Agreement to Sell, Affidavit and Receipt, all dated 11.05.1983 The learned counsel for Shri Balram has very vehemently argued that Shri Gopi Ram has not been able to prove his ownership documents in accordance with law, as his wife Smt.Rameshwari Devi, has not tendered the said documents in her evidence; whereas, Shri Balram has proved his title documents by tendering the same in his evidence and through the evidence of Shri Beer Singh Kain (PW6), who categorically deposed about the said documents having been executed by Shri Mohar Singh in favour of Shri Balram in his presence and he also having affixed his signatures as a witness thereupon. The learned counsel has further emphasized that the documents of title propounded by Smt.Rameshwari Devi do not confer any title in respect of the suit property upon her as the same do not fulfill the requirement of Section 202 of the Contract Act, as there is no irrevocable Power of Attorney accompanying the same. The said documents at the most only show an Agreement to Sell having been entered into by Smt.Rameshwari Devi with a right to seek execution of GPA/Sale Deed against Shri Mohar Singh; whereas, the documents of ownership of Shri Balram duly meet the criteria of Section 202 of Contract Act and are valid sale documents. The documents of Smt.Rameshwari Devi have been further questioned to have not been proved in accordance with law as no attesting witness was examined by her in support of the said documents. The learned counsel for Shri Balram has further questioned the documents of Smt.Rameshwari Devi by terming the same to be RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 7 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
forged and fabricated on the ground that the same mentions the address of Smt.Rameshwari Devi to be RZ9, whereas RZ numbers had admittedly not been given in the area of Palam prior to the year 1990. It is further argued that PW6 Shri Beer Singh Kain was not crossexamined by Smt.Rameshwari Devi/Shri Gopi Ram with regard to the material deposition by this witness about the execution of documents of title in favour of Shri Balram. I agree with the arguments of learned counsel for Shri Balram. The learned counsel for Shri Gopi Ram/Smt.Rameshwari Devi has now argued that suit simplicitor for possession and mesne profits by Shri Balram was not maintainable and he should have also sought relief of declaration of ownership of the suit property as well. In my considered opinion, this argument is not available to Shri Gopi Ram/Smt.Rameshwari Devi for the simple reason that issue of ownership in the matter was incidental in both the litigations. Smt.Rameshwari Devi had filed suit simplicitor for injunction claiming herself to be owner of the suit property since the year 1983 and prior to filing suit by Shri Balram, he had filed his written statement in the earlier suit, interalia claiming to be owner of the suit property and had also placed on record documents of title in his favour in respect of the suit property. It was for Smt.Rameshwari Devi to have sought the relief of declaration and not for Shri Balram to have sought so in the said suit.
9. A perusal of both the sets of documents reveal that both the parties have claimed ownership through the same person, i.e Shri Mohar Singh, but the signatures of Shri Mohar Singh appearing on both the set of documents do not appear to be similar. Both the set of documents do not identify the suit property RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 8 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
with its present number, presumably for the reason that the property numbers were assigned by Municipal Corporation to it only after the year 1990. Therefore, under these circumstances the other supporting documents placed on record by Shri Balram attain significance. The said documents are the one issued by the Residents Welfare Association (RWA) by the name of Samaj Sudhaar Samiti of the area in question. The said documents on the trial court record are Ex.PW3/5, Ex.PW3/5A, Ex.PW3/6 and Ex.PW3/7. The said documents were not questioned by Shri Gopi Ram/Smt.Rameshwari Devi during trial. A perusal of these documents reveal that the suit property falls in Khasra No.11/13 and prior to the year 1990 it fell in G Block of Mahavir Enclave, where after its name was changed to GBlock, Vijay Enclave, after obtaining NOC from the Municipal Corporation of Delhi. Therefore, the documents of title of Shri Balram coupled with the aforesaid documents executed by Residents' Welfare Association (RWA) lend authenticity to the documents of Shri Balram. Therefore, the Ld.Trial Court was right in believing the documents of title of Shri Balram to be correct and authentic.
10. The learned counsel for Shri Gopi Ram/Smt.Rameshwari has placed reliance upon the following four judgments:
(i) Case reported as, "2005 (6) SC 243", titled as, "State of Rajasthan V/s Basant Nahata";
(ii) Case reported as, "(1968) 2 MLJ 574", titled as, "Anantha Pillai V/s Rathnasabapathy Mudaliar & Anr.";
(iii) Case reported as, "1973 AIR (Mad) 179", titled as, "C.R Ramachandra Gowder & Ors. V/s C.P Nanjappa" and;
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(iv) Case reported as, "1968 AIR (SC) 1165", titled as, "Nair Service Society Ltd. V/s K.C Alexander"
I have gone through the said judgments. The same are not applicable in the facts and circumstances of the present case or are against the party citing it.
11. Possession of the suit property:
The learned counsel for Shri Gopi Ram/Smt.Rameshwari Devi has questioned the impugned judgments in so far as it has not believed the documents of possession placed on record by the aforesaid persons. With a view to appreciate this argument, I have myself meticulously gone into the said documents and after careful analysis of the said documents I endorse the findings of Ld.Trial Court with regard to the said documents. The document wise analysis is as under.
(i) The documents of M/s Shiva Finance (Ex.PW1/D4) clearly show that Shri Gopi Ram/Smt.Rameshwari Devi has interpolated the word "G"
in between "RZ9". A further careful analysis reveals that even the digit "3" has been added after the digit "9". The document shows the address of Shri Gopi Ram to be "RZ9", which has been tempered to read as "RZG9, 3". The presence of coma (,) in between "9 and 3" clarifies that this is a tempered document. Document Ex.P1/D1, Ex.P1/D2 as well as documents with regard to Kamal Electronics, all have clear insertion of word "G" and digit "3" in the address shown in the said documents.
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(ii) Documents Ex.PW1/D3, Ex.PW1/D4 and Ex.PW1/D5 are clearly selfserving documents placed on record by Shri Gopi Ram, which are in the nature of wedding cards, whereupon the address of Shri Gopi Ram has been mentioned as "RZG93". Even otherwise, the said documents have not been proved by calling the person(s) who had sent the wedding invitations to Shri Gopi Ram.
(iii) Even the copy of Ration Card Ex.PW1/D1 clearly shows the interpolation of word "G" and "3" in the address. A careful analysis of the aforesaid documents further indicates that the documents are purportedly issued by separate and distinct persons and how can all the said persons make similar mistake in not writing word "G" and "3" in the address of Shri Gopi Ram.
12. This gives rise to a firm conclusion that the original address of Shri Gopi Ram mentioned on these documents is "RZ9" and not "RZG93" and Shri Gopi Ram by cleverly interpolating the aforesaid two words wanted the court to believe as if he had been residing in the suit property all these years, whereas the categorical case of Shri Balram in the litigation is that Shri Gopi Ram was inducted as "licencee" in the suit property in January' 1995 for a period of two months and prior thereto, he had been residing as a tenant for sometime in house No.RZ9, from where he was evicted by his landlord, who was a sikh gentleman. All the documents placed on record by Shri Gopi Ram are pertaining to House No.RZ9 only. Therefore, the documents of possession placed on record by Shri Gopi RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 11 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
Ram/Smt.Rameshwari Devi were rightly not believed by the Ld.Trial Court. The matter does not end here. As per the admitted case of Shri Gopi Ram, he got employed with G.B Pant Hospital in the year 1989 and till the date of filing of suit, his address in the official records has been house No.318, village Munirka, Delhi. The said house admittedly belongs to the father of Shri Balram, who had permitted Shri Gopi Ram to stay in his house prior to Shri Gopi Ram having shifted to the tenanted accommodation at RZ9. In this regard, Shri Balram has examined witness from G.B Pant Hospital namely Shri Ajay Kumar, LDC. The witness from Food & Supplies Department namely Shri R.K Sophet has also produced on record documents which show that Shri Gopi Ram has been residing only in RZ9. The most important witness in the matter is PW2, i.e Shri Ganesh Ram Bodh, who is none other than the real "mama" of Shri Gopi Ram, who in his evidence has categorically deposed against him and has stated Balram to be owner of the suit property, wherein Shri Gopi Ram was inducted as tenant. This witness was not crossexamined by Shri Gopi Ram on this material deposition. Therefore, Shri Gopi Ram/Smt.Rameshwari Devi have miserably failed in proving their possession qua the suit property prior to the period from January' 1995.
13. Adverse Possession:
This takes us to the last and most voiceferously argued point by the learned counsel for Shri Gopi Ram/Smt.Rameshwari Devi, i.e "adverse possession". The learned counsel for Shri Gopi Ram has very vehemently argued that Shri Gopi Ram had been residing at the suit property continuously for more than twelve years and as such, he perfected his title in respect of suit property by RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 12 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
"adverse possession". It is relevant to note here that this point of adverse possession was not taken by Shri Gopi Ram/Smt.Rameshwari Devi before the Ld.Trial Court, therefore, one way of the same not worthy of consideration before this court is to simply shun him off by holding that the same cannot be permitted to be agitated before this court. When it was put to the learned counsel for Shri Gopi Ram/Smt.Rameshwari Devi, he argued that the plea of "adverse possession" is a legal plea and if the facts of the case duly make out the ingredients of adverse possession, then it can be taken in appeal for the first time. In my considered opinion, the argument is wholly fallacious and is not based upon any legal principle.
The plea of adverse possession is necessarily a plea of fact which has to be not only pleaded specifically in the written statement, but it has to be proved as a matter of fact. This cannot be termed to be a legal plea. Seeing it from another angle, Shri Gopi Ram/Smt.Rameshwari Devi has contradicted his own stand by taking this plea of adverse possession, as in one breath he has claimed himself to be owner of the suit property by virtue of title documents and on the other hand, he claims himself to be owner by adverse possession. These are to mutually destructive pleas which cannot coexist. I am supported in my aforesaid conclusion by the legal precedents which are as under.
14. In case reported as, "77 (1999) DLT 76", titled as, "Sardar Pritam Singh V/s Ram Narain Vij", the Division Bench of Hon'ble High Court of Delhi has been pleased to hold as under:
xxxxx "The appellants had simply claimed to be in occupation of the premises. The appellants also RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 13 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
simply denied the ownership of the respondent. The plea of tenancy and that of having acquired ownership by adverse possession are mutually destructive of each other. As discussed earlier, the amendment application deserves dismissal and is dismissed. The appeal also has no merit and is dismissed. Appeal dismissed."
xxxxx
15. In case reported as, "1994 (6) SCC 591", titled as, "Thakur Kishan Singh V/s Arvind Kumar", the Hon'ble Supreme Court has been pleased to held as under:
xxxxx "As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for the purposes of brickkiln. The possession, thus, initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a coowner or of a licencee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere permissive possession for howsoever length of time does not result in converting the permissive possession into adverse possession......."
xxxxx
16. Both of the aforesaid judgments were relied upon in subsequent judgment of the Hon'ble High Court of Delhi in case reported as, "161 (2009) DLT 585", titled as, "Praveen Narang V/s Dinesh Gulati & Anr.". Further, in case RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 14 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
reported as, "162 (2009) DLT 248", titled as, "D.M.H.P Sales Ltd. V/s New Howrah Transport Company & Ors.", the Hon'ble Supreme Court has been pleased to hold as under:
xxxxx
14. The plea of adverse possession set up by the Defendant No.1 appears to be misconceived. It is claimed that the Defendant No.1 in the written statement filed in the other suit namely Suit No. 372 of 1990 pending in the Court of the Civil Judge that the Plaintiff had no title to the suit property. A person setting up the plea of adverse possession has to necessarily aver that such a plea is being set up against a person who is the valid title holder/owner of the premises in question. The possession of the suit premises by the Defendant No.1 has to be shown to be hostile to the true owner. These are the essential ingredients necessary to be proved before a party can be permitted to take the plea of adverse possession.
15. In T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been explained that the concept of adverse possession contemplates hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. A person who claims title by adverse possession "must show by clear and unequivocal evidenced that his possession was hostile to the real owner and amounted to denial of his title to the property claimed".
16. Referring to the decisions in Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543, the Supreme Court in T. Anjanappa v. Somalingappa explained as under (SCC @ p.575):RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 15 of 22
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xxxxx "14.Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
"14......Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65` [of the Limitation Act], burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. 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, constitute 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 each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
15. Where possession could 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 lawful RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 16 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v. Balwant, SCC p. 554, paras 1415)."
17. In T. Anjanappa v. Somalingappa, the Supreme Court criticized the High Court for holding that the defendants do not have to prove who is a true owner. It was observed "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".
18. In the above context, therefore, the plea of the Defendant No.1 that the Plaintiff is not the true owner, per se negatives its assertion that it has perfected title by adverse possession visavis the Plaintiff. The plea of the Defendant No.1 that the Plaintiff is not the true owner of the suit property certainly therefore should result in holding that the Defendant No.1 has failed to prove perfection of title to the suit property by adverse possession.
19. In the affidavit of evidence filed by the Plaintiff, a certified copy of the sale deed dated 22nd July 1975 has been enclosed and marked as an Ex.PW.1/3. In the crossexamination, the witness denied that the rent receipts and claimed that Ex. PW.1/10 to PW1/13 were forged. He denied the RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 17 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
suggestion that there was any tenancy between Defendant No.1 and the Plaintiff. A question was asked if the Defendant No.1 was having a booking agency of the Defendant No.2, to which the witness of the Plaintiff stated that he was unable to confirm. As regards the suggestion about Meena Gupta, this witness denied that he had inducted her as tenant in respect of the lower ground floor and also given her right to sublet the property.
20. As far as the Defendant No.1 is concerned, he filed an affidavit by way of examinationinchief dated 30th July 2007. According to the Defendant No.1, suit premises was given to him by R.C. Jain since he wanted to do it as act of gratitude for the agency of Telco. Defendant No.1 claims not to be aware as to who has been paying the property tax and other related taxes. This answer by itself is a clear indication that the Defendant No.1 was not in possession of the suit premises. If in fact had the Defendant No.1 been in possession of the suit property, it would have been paying the property tax and other taxes. Defendant No.1 also claims to have been unaware of the sale deed dated 22nd July 1975 or its mutation in the name of the Plaintiff. The witness admitted that they were having an agency of Defendant No.2.
21. The Defendant No.1 has miserably failed to prove that he has perfected title to the suit property by adverse possession. Defendant No.1 has not placed on record any document to show that it has been in continuous possession of the suit property or has been paying its property taxes or electricity charges. RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 18 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
22. It was sought to be asserted by the counsel for the Defendant No.1 that the period for claiming adverse possession should be construed as commencing on 31st July 1990 when the Defendant No.1 asserted such adverse possession in the written statement. This submission is clearly misconceived. The ingredients of the plea of adverse possession has been explained by the Supreme Court in the aforementioned decision in T. Anjanappa v.
Somalingappa. In light of that law, it must be held that the Defendant No.1 has failed to prove that it has perfected title to the suit property by adverse possession.
xxxxx
17. In case reported as, "AIR 1997 SC 2930", titled as, "D.N Venkatarayappa & Anr. V/s State of Karnataka & Ors.", the Hon'ble Supreme Court has been pleased to hold as under:
xxxxx "5. ..........Apart from actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bona fide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all the adverse possession because it lack necessary animus for perfecting title by adverse possession." Therefore, it is clear that one of the important ingredients to claim adverse possession is that the person who claims adverse possession must have set up title hostile to the title of the true owner. Therefore,I am of the view that none of the decisions relied upon by Sri Narayana Rao in RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 19 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
support of the plea of adverse possession set up by the petitioners, is of any assistance to the petitioners.
Further, admittedly, there is not even a whisper in the evidence of the first petitioner with regard to the claim of adverse possession set up by the petitioners. It is not stated by the petitioners that they have been in continuous and uninterrupted possession of the lands in question. What is stated by the petitioners, in substance, is that they came into possession of the lands in question by virtue of the sale deeds executed by the original grantees. The Supreme Court, in paragraph 11 of the decision in Chandevarappa's case (supra), has observed thus:
"11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that is contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But, the crucial facts to constitute adverse possession have not been pleaded. Admittedly, the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 20 of 22
RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
Therefore,in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession........
xxxxx (emphasis supplied)
18. The learned counsel for Shri Gopi Ram/Smt.Rameshwari has cited following judgments to emphasize the point that the issue of "adverse possession"
is a legal issue and even if the factum of adverse possession was not pleaded in the written statement before the Ld.Trial Court, the same can be agitated in appeal, if from the facts, it is borne out that plea of "adverse possession" was available to the defendant.
(i) Case reported as, "1967 AIR (Bom) 34", titled as, "Maruti Gurappa & Anr. V/s Krishna Bala & Anr." and;
(ii) Case reported as, "1985 AIR (Del) 95", titled as, "Suraj Mal & Ors.V/s Babu Lal & Anr."
I have gone through both the aforesaid judgments. The said judgments are not applicable in the facts and circumstances of the present case and the same even do not deal with the preposition canvassed by the learned counsel.
19. In view of the law laid down in the aforesaid judgments, the plea of "adverse possession" is not available to Shri Gopi Ram/Smt.Rameshwari Devi in RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 21 of 22 RCA No.126/2014: "Smt.Rameshwari V/s Shri Balram" & DOD: 07.11.2014 RCA No.127/2014: "Shri Gopi Ram V/s Shri Balram"
this litigation. The said plea is further not sustainable in the facts as well as the evidence recorded in the matter as Shri Gopi Ram in his crossexamination has categorically admitted that till the year 1995 he had been residing as a tenant in the house belonging to one sikh gentleman and had been paying rent @ Rs.30/ per month to him.
20. No other point is agitated before this court.
21. Therefore, both the appeals are held to be meritless and are consequently dismissed with cost of Rs.10,000/ (Rupees Ten Thousand Only) in each appeal.
22. Decree Sheet be prepared accordingly.
23. A copy of this judgment be placed in both the appeal files.
24. The trial court record be sent back forthwith to the Ld.Trial Court/Ld.Successor Court alongwith copy of this judgment.
25. Both the appeal files be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 07.11.2014 Addl. District JudgeI/SouthWest
Dwarka District Courts: New Delhi
RCAs U/s 96 CPC: "Both RCAs Dismissed" Page 22 of 22