Delhi District Court
Smt. Jayashree Singh vs Smt. Achala Mohan on 16 January, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.01 OF 2019
Date of institution: 03.01.2019
Date of arguments: 10.10.2022
Date of judgment: 16.01.2023
Smt. Jayashree Singh
d/o Late Sh. Chandeshwar Prasad Narayan Singh
r/o 148 (Ground Floor), Jor Bagh,
New Delhi-110003 ............Plaintiff
Versus
Smt. Achala Mohan
w/o Late Sh. Rajinder Kumar Dhawan
presently at 141, Golf Links
New Delhi-110003. .............Defendant
JUDGMENT
1. The plaintiff has filed the present suit against the defendant seeking decree of mandatory injunction in favour of the plaintiff directing the defendant to hand over the vacant and peaceful possession of the property bearing no.141, Golf Links, New Delhi 110003 comprising of a two- storied residential house constructed on an area admeasuring 375 square yards (hereinafter referred to as the "suit property") and for a decree to pay mesne profits/damages @ ₹ 8,50,000/- per month from August 2018 till the date of vacating the suit property.
2. The case of the plaintiff as pleaded in the plaint is that the plaintiff is the lawful and absolute owner of the suit property under a duly registered conveyance deed. It is stated that the plaintiff is the daughter of Late Sir Chandeshwar Prasad Naryan Singh, who was a greatly respected and renowned public figure. It is stated that the plaintiff's father was an CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 1 Indian freedom fighter, diplomat and an administrator. It is stated that after India attained independence, he was appointed as India's Ambassador to Nepal in the year 1949, and after completion of his tenure in Nepal, he was appointed as the Governor of undivided Punjab in 1953 and was also appointed as the Governor of Uttar Pradesh at a later point in time. It is stated that he had also served as India's Ambassador to Japan. It is stated that due to his remarkable contributions to the society including but not limited to the Bhakra Nangal Dam and establishment of the Kurukshetra University, he was awarded the Padma Vibhushan in the year 1977. It is stated that he had also served as the director of the Reserve Bank of India, IDBI and several other companies post his retirement.
3. It is the case of the plaintiff in the plaint that the plaintiff's father had very good relations with and was a very close friend of Pt. Jawahar Lal Nehru and Mrs. Indira Gandhi. It is stated that it was owing to such close family relations that the deceased husband of the defendant, namely Late Mr. Rajinder Kumar Dhawan, was permitted to be in occupation of the suit property without payment of any rental charges. It is stated that Mr. R.K. Dhawan was a renowned politician and leader of the Indian National Congress party. It is stated that he died on 06/08/2018 leaving behind his wife, the defendant herein, who he had married in the year 2012. It is stated that prior to the year 1978, Mr. R.K. Dhawan was residing along with his family at Atul Grove Road, New Delhi. It is stated that in the year 1977, there was a change in the government and Mr. R.K. Dhawan was in need of an accommodation, and it was at this point, that the plaintiff's father, upon the request of Mrs. Indira Gandhi, allowed Mr. R.K. Dhawan to reside in the ground floor of the suit property without levying any rental charges. It is stated that the arrangement was made CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 2 only as a gesture of goodwill and to help Mr. R.K. Dhawan in his time of need.
4. It is further stated in the plaint that the first floor of the suit property was already in the occupation of tenants while the barsaati was being used by the plaintiff. It is stated that it was agreed and understood between the plaintiff's father and Mr. R.K. Dhawan that the possession/occupation by Mr. R.K. Dhawan over the ground floor of the suit property was in the nature of a licensee with limited permissive possession. It is stated that the other portions of the suit property, including the barsaati continued to be in possession of the plaintiff, which she continued using for storage and other purposes, including residential purposes at times. It is stated that the plaintiff at all points had unfettered access to the suit property, especially the barsaati floor and certain other rooms, which were always under lock and key. It is stated that in the year 1981/1982, the tenants vacated the first floor of the suit property, and upon request being made by Mr. R.K. Dhawan, he was allowed to use the first floor of the suit property as well. It is stated that the plaintiff and Mr. R.K. Dhawan were thus joint users of the first floor of the suit property. It is stated that the plaintiff was living with her father in Lucknow as he was the Governor of Uttar Pradesh, however she used to stay in the suit property whenever she was in Delhi. It is stated that even after her father shifted to Delhi, the plaintiff continued to stay with him to take care of him in his old days, but at all points in time continued to be in joint use of the first floor of the suit property while being in sole possession of the barsaati.
5. It is further the case of the plaintiff that the plaintiff's father passed away in 1993 but the plaintiff continued to honour the arrangement entered into by him with Mr. R.K. Dhawan. It is stated that Mr. R.K. Dhawan was extremely grateful and obliged at the generosity and magnanimity CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 3 bestowed by the plaintiff's father, the plaintiff and the entire family of the plaintiff and he even recounted his gratitude openly on many occasions, including in press interviews. It is stated that all along, there continued to be a specific and explicit understanding between the plaintiff and Mr. R.K. Dhawan that the plaintiff continued to be the absolute owner of the suit property and she was assured that she shall be handed over the vacant and peaceful possession of the entire suit property as and when she so demanded. It is stated that from the very purchase/acquisition of the suit property by the plaintiff, it is the plaintiff who has been paying all the municipal corporation dues, the relevant taxes and all other government levies in respect of the suit property, and such payments have continued on her part throughout the duration of the arrangement with Mr. R.K. Dhawan. It is stated that these facts even find mention and narration in various submissions/communications addressed by Mr. R.K. Dhawan to various statutory authorities including authorities under the Income Tax Act, 1961.
6. It is further stated in the plaint that Mr. R.K. Dhawan requested the plaintiff that he be permitted to continue his occupation till his last breath. It is stated that having built friendly relations with Mr. R.K. Dhawan, owing to regular interactions over the course of the above-detailed arrangement in respect of the suit property, and having no apprehensions about the intentions of Mr. R.K. Dhawan, the plaintiff permitted him to continue his occupation for the entirety of his lifetime. It is stated that till this stage, Mr. R.K. Dhawan was an unmarried man, having no children or heir whatsoever. It is stated that Mr. R.K. Dhawan then married the defendant in the year 2012 and the defendant started residing in the ground floor of the suit property along with Mr. R.K. Dhawan. It is stated that the plaintiff at that time had approached Mr. R.K. Dhawan to reaffirm the understanding that it is only Mr. R.K. Dhawan who was permitted to CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 4 reside in the suit property. It is further stated that to put at rest all the apprehensions of the plaintiff, Mr. R.K. Dhawan swore an affidavit duly acknowledging the plaintiff as the lawful owner of the suit property, his possession as a licensee without any right of ownership, and further categorically stating that neither his wife nor any of his family members, or near or dear ones shall ever claim ownership or right to stay in the suit property. It is further stated that he further undertook that the peaceful and vacant possession of the suit property shall vest with the plaintiff immediately upon his demise. It is stated that a similar affidavit was also sworn by Mr. R.K. Dhawan in the year 2017, duly acknowledging the plaintiff as the lawful owner of the suit property and that all taxes/statutory levies pertaining to the suit property were being paid by the plaintiff. It is stated that the defendant was very well aware and cognizant, not only of the affidavits thus sworn by her late husband, Mr. R.K. Dhawan, but also of the contents of these affidavits and the circumstances narrated therein.
7. It is further stated in the plaint that Mr. R.K. Dhawan expired on 06/08/2018, being survived by his wife i.e. the defendant. It is stated that the plaintiff thereafter contacted the defendant and asked her to vacate the portions of the suit property in her occupation and to hand over possession to the plaintiff. It is stated that however, since the defendant at that time was grieving the demise of her late husband, the defendant requested for some time to vacate the suit property and promised that peaceful possession of the same would be handed over upon completion of the mourning period and after performance of all the last rites and religious ceremonies. It is stated that after the completion of the mourning period, the plaintiff again tried approaching the defendant for vacation of the suit property. It is stated that however, the defendant stopped answering the calls of the plaintiff or entertaining her requests for CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 5 vacating the suit property. It is stated that the defendant altogether blocked the access of the plaintiff to the suit property including the barsaati. It is stated that a few weeks after the demise of Mr. R.K. Dhawan, the plaintiff visited the suit property along with her son, for seeking vacation of the same, however, to their utter surprise, the plaintiff saw that the defendant had deployed armed guards at the suit property to forcibly restrict the access of the plaintiff and her son to the suit property and refused them entry. It is stated that moreover, during her visit, the plaintiff also came to know that in addition to the defendant, various other relatives of the defendant have since the demise of Mr. R.K. Dhawan, shifted into the suit property and have been residing there. It is stated that after the demise of Mr. R.K. Dhawan, the defendant is not entitled to occupy the suit property or any portion thereof, and her continued possession of the suit property amounts to trespass.
8. It is further stated in the plaint that being apprehensive of the mala fide intentions of the defendant, the plaintiff issued a legal notice dated 02/11/2018 to the defendant, seeking restoration and handover of the peaceful and vacant possession of the suit property to the plaintiff within a period of 10 days from the receipt of the said notice. It is stated that, however, despite receipt of the legal notice dated 02/11/2018, the defendant has continued to deny the plaintiff access to the suit property, and has refused to vacate the suit property, which was occupied by her late husband, Mr. R.K. Dhawan, as a licensee. It is stated that to the contrary, the defendant threw a grand party at the suit property on Diwali and it became known to the plaintiff that the defendant was attempting to illegally dispose of the suit property. It is stated that the plaintiff has received information that the suit property was on offer for sale in closed circles, without the original papers, which the defendant was portraying to have been misplaced. It is stated that being perturbed and deeply CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 6 stressed, the plaintiff got a public notice issued in the newspapers on 17/11/2018, as an immediate measure to prevent any untoward sale of the suit property.
9. It is stated that as on the date of filing of the suit, the plaintiff was not allowed to visit the property at all, let alone access the barsaati. It is stated that throughout the period of occupation of the suit property by Mr. R.K. Dhawan and subsequently by the defendant as well, the barsaati floor of the suit property and certain other rooms continued to be in possession of the plaintiff and were being used for various purposes including storage of many personal belongings, including clothes, paintings, silver utensils, religious idols, electrical fittings et cetera, which belongings continue to be present and stored at the suit property. It is stated that out of these belongings stored at the suit property, the electrical fittings, utensils, etc. have all been in active use by the occupants of the suit property, including the defendant.
10. It is stated that the license arrangement arrived at between the plaintiff and Mr. R.K. Dhawan, the late husband of the defendant, came to an end with the demise of Mr. R.K. Dhawan on 06/08/2018. It is stated that the defendant has been in illegal occupation of the suit property since then and the plaintiff is thus entitled to the relief of mandatory injunction in respect of the suit property. It is stated that the plaintiff is further entitled to recover from the defendant, mesne profits @ ₹ 8,50,000/- per month which was the prevailing market rate for the suit property, from the month of August 2018 till the handing over of the vacant and peaceful possession of the suit property.
11. It is stated that the defendant is in ownership and possession of many properties, including residential properties, and the refusal on the part of the defendant to vacate the suit property was absolutely unwarranted and CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 7 reflected a mala fide intention to usurp the suit property, which was lawfully owned by the plaintiff and of which a limited permissive possession was given to the late husband of the defendant Mr. R.K. Dhawan. On this basis, the plaintiff has filed the present suit.
12. On the basis of the aforesaid pleadings in the plaint, the plaintiff has sought the following reliefs in the prayer clause, which is extracted hereunder:
"a) Pass a decree of mandatory injunction against the defendant herein thereby directing the defendant to handover the vacant and peaceful possession of the suit property to the plaintiff herein, alongwith all the personal belongings of the plaintiff lying at the suit property, in their proper and fit condition, whether in use by the defendant or not; and,
b) Pass a decree in favour of the plaintiff and against the defendant directing the defendant to pay mesne profits/damages for a period commencing from August 2018 i.e. date of illegal occupation of the defendant herein till the date of handing over of the vacant and peaceful possession of the suit property to the plaintiff, calculated at the rate of Rs.8,50,000/-(Rupees Eight Lakh Fifty Thousand only) per monthly i.e. the prevailing market rate;
and,
c) Award costs of the suit in favour of the plaintiff and against the defendant; and/or,
d) Pass any or such other/further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice."
13. The defendant has filed written statement in her defence. It is the case of the defendant that the present suit is not maintainable as the same is couched in the form of a suit for mandatory injunction when it should be one for possession. It is the case of the defendant that the possession of the defendant as per the plaint, is settled by lapse of considerable period of time, and therefore, in order to recover the possession from the CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 8 defendant, the plaintiff ought to have filed a suit for possession. It is the case of the defendant that the plaintiff has filed the present suit for mandatory injunction in order to evade payment of ad valorem court fees on the value of the suit property which is worth ₹ 80 Crores even by modest standards.
14. It is further the case of the defendant in the written statement that the plaintiff has concealed material facts. It is stated that the plaintiff's late father and the defendant's late husband Mr. R.K. Dhawan had good relations with the then Prime Minister of the country, Smt. Indira Gandhi. It is stated that it was on account of the common relation with Mrs. Gandhi, that the plaintiff's late father and the defendant's late husband were introduced to each other prior to 1974. It is stated that the defendant came in contact with late Mr. R.K. Dhawan somewhere in the year 1974 and in 1975, the defendant went to Canada. It is stated that the defendant came back in 1980 and she met Mr. R.K. Dhawan and he was living in the suit property. It is stated that the defendant believed that Mr. R.K. Dhawan was the owner of the property as informed by Mr. R.K. Dhawan. It is stated that neither the plaintiff nor anyone else ever had any possession of the suit property from 1978 till date. It is stated that the fact of the matter is that from 1978, Mr. R.K. Dhawan had been in settled possession of the suit property till the day he died. It is stated that the defendant and Mr. RK Dhawan started living together in 2007 and subsequently, the defendant and Mr. R.K. Dhawan got married on 12/10/2011. It is stated that Mr. RK Dhawan continued in occupation of the suit property ever since as mark of the performance of an oral agreement between the plaintiff and himself. It is stated that the possession of the suit property, hitherto, has been absolute, unhindered and open against the rest of the world including the plaintiff and her late father. It is stated that Mr. Dhawan for all practical purposes remained to CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 9 be the owner of the suit property, with the implicit understanding between the parties that the transfer of proprietary interests in the same would be effected by the plaintiff. It is stated that it was on account of this implicit understanding that the taxes and other levies regarding the suit property were paid by the plaintiff as she was yet to transfer the proprietary interest in the suit property to Mr. Dhawan.
15. It is further stated by the defendant in her written statement that, however, owing to the old age of the plaintiff's father, the plaintiff began to reside with him at different places in the country where he was posted at the relevant times. It is stated that her visits to Delhi greatly reduced in number which resulted in vastly reduced communication with Mr. Dhawan. It is stated that Mr. Dhawan did not insist on the transfer deed of the suit property for the time being owing to his good nature and gratitude for the plaintiff's old and ailing father. It is stated that the non-execution of the transfer deed was also occasioned by the busy professional career of Mr. Dhawan who remained associated with the Congress party till the fag end of his life. It is stated that to further add to the delay in execution of the transfer deed by the plaintiff regarding the suit property, her father became ill owing to his old age and required the presence of the plaintiff near him. It is stated that soon after the passing of the plaintiff's father, the plaintiff was approached by Mr. Dhawan in connection with the said transfer deed of the suit property. It is stated that the plaintiff had then assured Mr. Dhawan about executing the same soon. It is stated that however, on one count or the other, the plaintiff kept on delaying the execution of the sale deed and insisted upon good relations of the parties and the fact of exclusive possession of the suit property as symbolic transfer of ownership. It is stated that initially, Mr. Dhawan could not understand the said inordinate delay on the part of the plaintiff owing to CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 10 cordial relations of the parties, however later he began to entertain certain doubts about execution of the said transfer deed.
16. It is further stated by the defendant that Mr. R.K. Dhawan passed away on 06/08/2018 leaving behind the defendant as his legal heir and successor- in-interest. It is stated that to the utter shock of the defendant and other relatives of Mr. Dhawan, the plaintiff approached the defendant and asked her to vacate the suit property. It is stated that the defendant categorically denied that the plaintiff was the owner of the suit property. It is stated that upon hearing this, the plaintiff threatened the defendant with court cases and muscle power to get possession of the suit property. It is stated that the plaintiff is trying to illegally take possession of the suit property by making false allegations that she is the owner of the suit property, whereas she never raised any such claim since 1978 since the time Mr. R.K. Dhawan had been in possession of the suit property. It is stated that as the truth was known to the defendant, the defendant held her ground and refused to give up in the wake of the treachery of the plaintiff. It is stated that the present suit is only an attempt to harass the defendant in order to coerce the defendant to part with her possession of the suit property. It is further stated that the defendant has the legal right to remain in occupation of the property by virtue of adverse possession of the suit property.
17. The plaintiff has filed replication to the written statement in which she has denied the contentions raised in the written statement and has reiterated the averments made in the plaint.
18. Vide order dated 30/09/2019, the following issues were framed in the suit:
"1. Whether late husband of the defendant continued to occupy suit property as per oral agreement with plaintiff? OPD CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 11
2. Whether as per oral understanding between plaintiff and late husband of defendant, the taxes and other levies in respect of suit property were paid by the plaintiff as she was yet to transfer her proprietary interest to late Sh. R.K. Dhawan (late husband of defendant)? OPD
3. Whether the plaintiff is entitled to decree of mandatory injunction as prayed in para (a) of the prayer clause? OPP
4. Whether the plaintiff is entitled for recovery of mesne profits/or damages, as prayed in prayer clause (b)? If yes, at what rate and for what period? OPP
5. Relief."
19. Vide order dated 13/09/2020, it was directed that the defendant's evidence was to be recorded first. The challenge by the defendant to the said direction was rejected by the Hon'ble High Court vide order dated 26/02/2020 passed in CM(M) No.255/2020. The relevant portion of the said order of the Hon'ble High Court is extracted hereunder:
"20. In the present case, the crux of the dispute is therefore whether the Defendant has become owner due to settled possession/adverse possession. The admission as to title is integral to the defence of adverse possession inasmuch as the Defendant is claiming adverse possession after having admitted the title of the Plaintiff. Without admitting the title or ownership of the Plaintiff, the defence of adverse possession would not arise. Under such circumstances, the Trial Court is right in holding that the main defence being that of an oral agreement and that of adverse possession/settled possession, the Defendant ought to commence evidence first. It is the settled position in law that a bare denial does not constitute a denial. A denial has to be meaningful. The suit and the written statement when read as a whole clearly show that it is the Defendant's case that they have acquired title not from a third party but from the Plaintiff herself. Under these circumstances Order XVIII Rule 1 CPC in effect, requires the Court to consider as to whether there is an admission or not. Considering the stand of the Defendant in the written statement, without saying anything further so as to not affect the final adjudication of the suit, it suffices to state that the Trial Court's CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 12 order directing the Defendant to commence the evidence first is completely correct and in accordance with law.
21. The judgment in Sabiha Sultana (supra) relied upon by the Defendant primarily sets out the entire law on this subject, which is quite well settled now. Even in the said case, the Court relies upon the judgment in Dattatray Namdeo Patil v. Ram Namdeo Patil and Ors., 2010 (4) AIR Bom 345 where the Bombay High Court holds that the Defendant can be compelled to lead evidence first, if the facts and pleadings require such an order to be passed. Even if the admission is not categorical, it is definitely readable in the present case from the written statement.
22. The order dated 30th September, 2019 therefore does not require to be interfered with on this aspect.
23. However, on the second aspect of court fee, there is clearly a lapse in the order that there is no issue of deficiency in court fee which has been framed. Accordingly, one more issue be framed as issue no.1(a) to read as under:
1(A). Whether the suit is maintainable without payment of full ad- valorem court fee? OPD
24. It is accordingly directed that with the addition of this one issue, the impugned order shall stand modified."
20. Accordingly, vide order dated 26/02/2020, the following additional issue was framed by the Hon'ble High Court:
"1(a). Whether the suit is maintainable without payment of full ad- valorem court fee? OPD?"
21. In support of her case, the defendant has examined herself as DW-1 and has tendered her affidavit in evidence Ex.DW-1/A in which she has deposed on the lines of the written statement. She was cross-examined substantially.
22. The defendant has also summoned DW-2 S.I. Harkesh Meena, PS, Tilak Marg, New Delhi to prove the complaints filed by the defendant.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 13
23. The defendant has also summoned DW-3 Mr. Ronit, Record Keeper, Office of Sub Registrar VII, INA, Vikas Sadan, New Delhi, to produce the record of the circle rates in the area of the subject property and the records pertaining to the suit property.
24. The defendant has also examined DW-4 Ms. Poonam Saini, Handwriting and Fingerprint Expert, who has tendered her affidavit in evidence Ex.DW-4A. DW-4 has given evidence with respect to her report Ex.DW- 4/B in relation to the signatures of Late Sh. R.K. Dhawan.
25. In support of her case, the defendant has relied upon the following documents: Ex.DW-1/1 (Colly.) being Complaint dated 16/01/2019 to police; Ex.DW-2/A being Police complaints and reply forwarded to SHO P.S. Tilak Marg; Ex.DW-3/1 being Notification of circle rates dated 22/09/2014; Ex.DW-3/2 being Sale Deed dated 01/08/2016 registered on 03/08/2016 of property bearing no.124, Golf Links, New Delhi; and Ex.DW-4/B being Report of Handwriting expert DW-4.
26. In support of her case, the plaintiff has examined herself as PW-1 and has tendered her affidavit in evidence Ex.PW-1/A in which she has deposed on the lines of the plaint. She has been substantially cross-examined by the defendant.
27. The plaintiff has also examined PW-2 Sh. Raghavan G. who has tendered his affidavit in evidence Ex.PW-2/A. PW-2 has also been substantially cross-examined by the defendant.
28. In support of her case, the plaintiff has relied upon the following documents: Ex.DW-1/P1 being Conveyance Deed dated 30/06/2016 in favour of plaintiff; Mark P-1 (Colly.) being property documents in respect of the suit property; Ex.PW-1/1 being Affidavit of Sh. R.K. Dhawan; Ex.PW-1/2 being Affidavit of Sh. R.K. Dhawan; Ex.PW-1/3 being Legal CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 14 Notice dated 02/11/2018 along with acknowledgement; Ex.PW-1/4 (Colly.) being Public Notices in newspapers; Ex.PW-2/1 being Property Tax Receipts and Ex.PW-2/2 being Certificate under Section 65B of PW- 2 (subject to objection by defendant); Ex.PW-2/3 being Summons dated 28.08.1997; Ex.PW-2/4 being Magazine article titled "House No.141"
published in November 1988 in Probe India, Vol.10, No.9 and Ex.PW-2/5 and article titled "Come from the shadows" published in Sunday magazine, Vol.16, Issue 14 dated March 1989, and Certificate under Section 65B of PW-2 (subject to objection by defendant); Ex.PW-2/6 being Form 16 and declaration dated 15/06/2004 of Mr. R.K. Dhawan before the Returning officer for election to the Council of States from Bihar Constituency and Ex.PW-2/7 being Certificate under Section 65B of PW-2 (subject to objection by defendant).
29. The learned counsel for the plaintiff has referred to the relevant pleadings and evidence in the plaintiff's support. The learned counsel for the plaintiff has argued that the evidence on record clearly shows that the defendant's late husband Mr. R.K. Dhawan had been inducted into the suit property as a licencee and that the status of the defendant as the wife of Mr. R.K. Dhawan was also that of a licencee. It is submitted that upon the death of late Mr. R.K. Dhawan, the licence came to an end and the plaintiff requested the defendant to vacate the suit property, which request was not complied with. It is submitted that the plaintiff has immediately filed the suit thereafter, and as such the suit for mandatory injunction is maintainable. The learned counsel for the plaintiff has placed reliance on various judgments in support of his plea that a suit for mandatory injunction at the instance of the licensor was maintainable. I shall deal with these judgments in the following paragraphs in the findings section of this judgment.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 15
30. It is further submitted by the learned counsel for the plaintiff that the defendant has taken contradictory pleas of an oral agreement between the defendant's late husband with the plaintiff and her father, and of adverse possession, which is not permissible. It is further submitted that even otherwise, the defendant has failed to lead any evidence to prove her aforesaid two contradictory pleas. It is thus submitted that the plaintiff is entitled for decree of mandatory injunction.
31. It is further submitted by the learned counsel for the plaintiff that since the defendant has remained in illegal occupation of the suit property despite the termination of the licence, the defendant would be liable to make payment of mesne profits at the rate of Rs. 8,50,000/- per month, which would be the market rate of rent for the suit property, from August 2018 till the defendant vacates the suit property.
32. On the other hand, the learned counsel for the defendant has referred to the relevant pleadings and evidence in the defendant's support. The learned counsel for the defendant has argued that from the evidence on record, the defendant has been successful in proving her defence of oral agreement between the defendant's late husband with the plaintiff and her father, and the plaintiff would not be entitled to any relief in the suit.
33. The learned counsel for the defendant has further argued that from the evidence on record, the defendant has been successful in proving her defence of adverse possession, and the plaintiff would not be entitled to any relief in the suit.
34. It is further submitted by the learned counsel for the defendant that even otherwise, the suit of the plaintiff for mandatory injunction was not maintainable. It is further submitted that the plaintiff has also not proved the rate of mesne profits.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 16
35. The defence which has been raised by the defendant in the written statement may be summarised as follows: Firstly, the defendant has claimed that her late husband Mr. R.K. Dhawan became owner of the suit property by virtue of an oral agreement to transfer between the plaintiff and Mr. R.K. Dhawan. Secondly, the defendant has claimed that the defendant is entitled to remain in occupation of the property by virtue of adverse possession. Thirdly, the defendant has claimed that the present suit is not maintainable for relief of mandatory injunction and that the plaintiff ought to have filed a suit for possession.
36. I have heard the learned counsels for the parties and I have perused the record including the pleadings, evidence and written submissions.
37. My issue-wise findings are as follows.
Issue 1. Whether late husband of the defendant continued to occupy suit property as per oral agreement with plaintiff? OPD Issue 2. Whether as per oral understanding between plaintiff and late husband of defendant, the taxes and other levies in respect of suit property were paid by the plaintiff as she was yet to transfer her proprietary interest to late Sh. R.K. Dhawan (late husband of defendant)? OPD
38. The Issues No.1 and 2 are in respect of the defence raised by the defendant in the written statement that her late husband Mr. R.K. Dhawan became owner of the suit property by virtue of an oral agreement to transfer between the plaintiff and Mr. R.K. Dhawan, and remained in possession as the plaintiff was yet to transfer her proprietary interest. The onus to prove Issues Nos.1 and 2 was upon the defendant. I shall first deal with these issues.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 17
39. In opposition to the suit, the defendant has taken the following stand in paragraphs C, D and E of the preliminary submissions portion of her written statement:
"C. That the plaint conceals material facts from this Hon'ble Court in order to support the illegal claims made therein. Both, the plaintiff's late father, Sh. CPN Singh and the defendant's late husband, Sh. RK Dhawan, had good relations with the then Prime Minister of the country Sh. Indira Gandhi. It was on account of the common relation with Ms. Gandhi, plaintiff's late father and the defendant's late husband were introduced to each other prior to 1974. The defendant came in contact with late Mr. RK Dhawan somewhere in the year 1974 and 1975, the defendant went to Canada. The defendant came back in 1980 and she met Mr. RK Dhawan and he was living in the suit property. The defendant believed that Mr. RK Dhawan was the owner of the property as informed by Mr. R.K. Dhawan. Neither the plaintiff nor anyone else ever had any possession of the suit property from 1978 till date. The fact of the matter is that from 1978, Mr. R.K. Dhawan had been in settled possession of the suit property till the day he died. The defendant and Mr. R.K. Dhawan started living together in 2007 and subsequently, the defendant and Mr. R.K. Dhawan got married on 12/10/2011.
D. That Mr. Dhawan continued in occupation of the suit property ever since as a mark of the performance of the said oral agreement between the plaintiff and himself. The said possession of the suit property, hitherto, has been absolute, unhindered and open against the rest of the world including the plaintiff and her late father. Mr. Dhawan, for all practical purposes remained to be the owner of the suit property with the implicit understanding between the parties that the transfer of proprietary interests in the same would be affected by the plaintiff. It was on account of this implicit understanding that the taxes and other levies regarding the suit property were paid by the plaintiff as she was yet to transfer the proprietary interest in the suit property to Mr. Dhawan.
E. That, however, owing to the old age of plaintiff's father, plaintiff began to reside with him at different places in the country where he was posted at relevant times. Thus, her visits to Delhi greatly reduced the number which resulted in vastly reduced communication with Mr. Dhawan. Further, Mr. Dhawan did not CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 18 insist on the transfer deed of the suit property for the time being owing to his good nature and gratitude for plaintiff sold and ailing father. The non-execution of the transfer deed was also occasioned by the busy professional career of Mr. Dhawan who remained associated with the Congress Party till the fag end of his life. To further add to the delay in execution of the transfer deed by the plaintiff regarding the suit property, her father became ill owing to his old age and required the presence of plaintiff near him. Soon after the passing away of the plaintiff's father, the plaintiff was approached by Mr. Dhawan in connection with the said transfer deed of the suit property. The plaintiff had then assured Mr. Dhawan about executing the same soon. However, on one count of the other, the plaintiff kept on delaying the execution of the sale deed and insisted upon good relations of the parties and the fact of exclusive possession of the suit property as symbolic transfer of ownership. Initially, Mr. Dhawan could not understand the said in order to not delay on part of plaintiff owing to the cordial relations of the parties; however, later he began to entertain certain doubts about the execution of the said transfer deed."
(Emphasis supplied by me)
40. Upon going through the pleadings in the written statement, I would say that the pleadings in regard to the alleged oral agreement to transfer are not clear and are very vague in nature. However, what can be made out is that the defendant has claimed that her late husband Mr. R.K. Dhawan came into possession of the suit property from 1978 and there was an oral agreement/understanding that the transfer of proprietary interests in the property shall be effected by the plaintiff in favour of Mr. R.K. Dhawan. It is pleaded in paragraph D that it was on account of this implicit understanding that the taxes and other levies regarding the suit property were paid by the plaintiff as she was yet to transfer the proprietary interest in the suit property to Mr. Dhawan. It is further pleaded in paragraph E that Mr. R.K. Dhawan did not insist on the transfer deed of the suit property for the time being owing to his good nature and gratitude for plaintiff's old and ailing father. It is further pleaded that the non-
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 19 execution of the transfer deed was also occasioned by the busy professional career of Mr. Dhawan. It is further pleaded that soon after the passing away of the plaintiff's father, the plaintiff was approached by Mr. Dhawan in connection with the transfer deed of the suit property and that the plaintiff had then assured Mr. Dhawan about executing the same soon, however, on one count or the other, the plaintiff kept on delaying the execution of the sale deed and insisted upon good relations of the parties and the fact of exclusive possession of the suit property as symbolic transfer of ownership.
41. I find that the defendant has in the written statement not given any particulars of the oral agreement to transfer which has been alleged by her in paragraphs D and E of the preliminary submissions portion of written statement. It is the case of the defendant that as per the oral agreement, the plaintiff was under an obligation to execute sale deed in favour of the late husband of the defendant. However, the defendant has not given any details of the alleged oral agreement to sell. There are no details which are pleaded as to when this oral agreement to sell was entered into. There are no particulars given as to what were the terms and conditions of the alleged agreement to sell. The defendant has failed to even plead as to what was the total sale consideration under the alleged agreement to sell and what payments had already been made under the alleged oral agreement. Thus, the pleadings of the defendant in the written statement are bereft of any details of the alleged oral agreement to sell.
42. Even in the evidence led by the defendant, there is nothing substantial regarding the oral agreement to sell. The defendant has sought to prove the alleged oral agreement to sell only by her own affidavit in evidence Ex.DW-1/A. The affidavit in evidence Ex.DW-1/A of the defendant is only a reiteration of the contents of the written statement. The paragraphs CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 20 2, 3 and 4 of the Ex.DW-1/A are reiteration of paragraphs C, D and E of the written statement. Thus, even in the affidavit in evidence Ex.DW-1/A again there are no details of the alleged agreement to sell.
43. It would appropriate to reproduce the relevant portion of cross-
examination of the defendant DW-1 dated 27/02/2021:
"Q19.Please see the portion between points 'A' to 'A' of Special Report titled "Come from the shadows" dated 16.05.2011 March, 1989 and published in Sunday Magazine, Volume 16, Issue 14, after downloading the same from the website of Internet archive and it's till date available at the url: ..................... running into 6 sheets along with certificate under section 65B Indian Evidence Act of one Mr. Raghavan G and I put it to you that it was in public knowledge that the property No.141, Golf Links, New Delhi was let out by Sir C.P.N. Singh to Mr. Dhawan. What have you to say? (Ld. Counsel for the defendant objects on the ground that this print out appears to be sourced from an archival website which lacks authenticity, the certificate appended thereto is not in accordance with Section 65B Indian Evidence Act and the defendant is neither the author nor the executing thereof and therefore cannot be put to the witness in cross examination. Also in view thereof it is inadmissible in evidence.) Ans. As far as my knowledge and understanding go this house was never let out by Sir C.P.N. Singh. It was given by him initially to live therein and then it was to be transferred to Mr. R.K. Dhawan.
(Observation: for the purpose of identification the said document along with Certificate have been collectively marked as Mark-C (colly) and copies thereof supplied to Ld. Counsel for the defendant).
Q20. In your previous answer you have inter-alia stated that "It was given by him initially to live therein and then it was to be transferred to Mr. R.K. Dhawan". Please tell us why was it given initially to live in?
Ans. In 1978 I was not in India and therefore I do not know the exact reason as to why it was initially given to live in."
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 21 Q21. In the said portion of your answer referred to in question no.20 above you have also stated that property no.141, Golf Plaint, New Delhi was to be transferred in the name of Mr. R.K. Dhawan. Why was the said property to be transferred in the name of Mr. Dhawan?
Ans. I do not know about the reason since it was an understanding between them i.e. Sir CPN Singh and Mr. R.K. Dhawan.
Q22. Please see the portion between points 'A' to 'A' of para 3 of your affidavit of Ex.DW-1/A. Please tell us the details of the oral agreement referred by you therein?
(Objected to by the Ld. Counsel for the defendant on the ground that it has already been dealt with in the said affidavit Ex.DW- 1/A.) Ans. As far as my understanding is, the terms and conditions thereof were the same with my husband R.K. Dhawan (since deceased) had with Sir CPN Singh.
Q23. Please point out from affidavit Ex.DW-1/A as to where you have mentioned that the said oral agreement between the plaintiff and Mr. R.K. Dhawan referred to by me therein is the same as the understanding between Sir C.P.N. Singh and Mr. R.K. Dhawan referred to by me in my above cross examination?
Ans. It is not mentioned in my said affidavit. (Vol. Oral agreement is never mentioned and it is merely oral.) Name of Mr. C.P.N. Singh finds mention only in para 2 of my affidavit Ex.DW-1/A and nowhere else therein. However, there is mention of plaintiff's father in paragraphs 3 and 4 thereof.
Q24. Please see portion between points 'B' to 'B' of para for on page 3 of your affidavit Ex.DW-1/A and it refers to "the execution of sale deed". What was the sale consideration?
Ans. When no sale took place, then where is the question of sale consideration. (Vol. The said portion talks of symbolic possession also). (Again said sale could be of one rupee also)."
(Emphasis supplied by me)
44. When the defendant as DW-1 has been specifically questioned in question no.24 regarding the sale consideration for the execution of the sale deed, she has answered that when no sale took place, then there was no CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 22 question of sale consideration. When the defendant DW-1 has been asked in the cross examination to give the details of the oral agreement, the defendant DW-1 has failed to give any details.
45. I have gone through the entire evidence led by the defendant and I find that there is no evidence to prove any agreement to sell between the plaintiff and Mr. R.K. Dhawan. Let alone any evidence of any sale consideration having been paid in furtherance of the oral agreement to sell, the defendant has categorically deposed in her cross-examination that when no sale took place, there was no question of any sale consideration. The deposition of the defendant, thus completely falsifies the case of the defendant of any oral agreement to sell between the plaintiff and her late husband.
46. During her cross-examination, the defendant as DW 1 has deposed that it was correct that as the heir of Sh. Dhawan she was in possession of all the documents left behind by him. She has also deposed that from the documents of her late husband, she was unable to find any documents of ownership of the property.
In the cross examination held on 15/02/2021, the defendant deposed as under:
"Between 1990 to his death, Mr. Dhawan contested in 5 elections. I am aware that before contesting the election, a declaration including declaration of assets, is given by each contestant.
Que.3 Did Mr. Dhawan in any of those declaration forms, even declare that 141 Golf Link, New Delhi was owned by him? Ld. Counsel for the defendant objects to the question on the ground that it does not pertain to the witness but pertains to Mr. Dhawan. Ans. At the time of filling up the said forms or declaration, neither I used to be with him nor I ever saw them.
It is correct that as heir of Sh. Dhawan, I am in possession of all the documents left behind by him. Till now I have not seen/glanced through the said documents and therefore question of mind CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 23 knowing whether the said documents contain copies of any aforesaid declarations/nominations, does not arise."
On the cross examination held on 19/02/2021, the defendant deposed as under:
"After the recording of my cross examination on 15.02.2021, I saw and also went through the documents left behind by Mr. R.K. Dhawan (since deceased), my late husband. I could not go through the said entire documents because they were extremely voluminous and therefore I cannot say the salary which Mr. Dhawan had been drawing, since I could not see the salary slips.
xxx xxx xxx Que.6 Amongst the said documents left behind by Mr. R.K. Dhawan, did you come across his Income Tax returns and the income tax files relating to him, therein?
Ans. Till now I have not been able to go through his entire files etc. left behind by Mr. R.K. Dhawan and therefore I cannot say whether the said files are therein, or not i.e. those documents at home or are with the CA.
Que.7 Did you find any file or documents relating to the property in question i.e. 141, Golf Link, New Delhi in the said documents left behind by Mr. R.K. Dhawan?
Ans. I am not in a position to reply to this question since till now I have not been able to go through the said entire documents lying at home.
Que. 8 Since the present case has been going on for the last more than 2 years in the Hon'ble Court, then why did you not see the said entire documents left behind by Mr. R.K. Dhawan, till date."
Objected to by Ld. Counsel for the defendant on the ground that it is beyond pleadings and does not relate to any issue framed in this case as also being argumentative in nature.
Ans. I have been so much aggrieved by the death of Mr. R.K. Dhawan and have not been able to make myself go through all his things.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 24 Que.9 Do you still need more time to go through the said documents left behind by Mr. R.K. Dhawan and also consult the CA in this regard ?
Ans. I will try to go through the said documents as also try to meet the CA."
In her cross examination on 27/02/2021, the defendant deposed as under:
"After recording of my cross examination on the last date of hearing, in the intervening period, I have gone through certain documents left behind by Mr. R.K. Dhawan (since deceased). I also contacted the CA of Mr. R.K. Dhawan but he stated that he could not retrieve the relevant papers since they were very old."
In her cross examination on 02/03/2021, the defendant deposed as under:
"Since, the recording of my deposition on the last date i.e. 27.02.2021, I have not been able to find any documents of ownership of the property in question as also the tax documents."
On 24/03/2021 which was the last day of her cross-examination, the defendant deposed as under:
"Q55. After recording of your last cross examination on 02.03.2021 and till today you had sufficient time. Please tell us if you could trace/find any title document relating to the property in question in the name of Shri R.K. Dhawan or any tax related document of Mr. Dhawan showing the said property therein.
Ans. Since the last date, I was not well and also I had taken Covid vaccination, due to which also I was not feeling well. Therefore, I could not look for them."
47. Thus, it is clear that there is no documentary evidence in support of the claim of the defendant that her husband had become the owner of the property. The sole evidence is the deposition of the defendant herself only. Even in her deposition it is not the defendant's case that the alleged oral agreement for transfer was made in her presence. As per the defendant's case, she started living together with Mr. R.K. Dhawan only CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 25 in 2007. It seems highly improbable that there would not be a shred of document recording or evidencing any oral agreement of transfer between the defendant's late husband and the plaintiff or the plaintiff's father, in case there was any such alleged oral agreement in existence.
48. In the cross examination recorded on 15/02/2021, the defendant as DW1 has deposed as under:
"Que.1 At what stage or time did you come to know about the owner of property no.141 Golf Links, New Delhi?
Ans. Even at present what I know is that it is owned by Mr. Dhawan. This information of mine is based on my knowledge derived from what Mr. Dhawan told me.
(Emphasis supplied by me) Thus, it is clear that the testimony of the defendant regarding the ownership of the suit property by her late husband is solely based on her allegation that the information was derived from her late husband. The defendant has no direct evidence to give regarding the alleged oral agreement of transfer. There is also no documentary evidence. Apart from the defendant's statement, there is no oral evidence from any other person regarding the alleged oral agreement for transfer. I find it difficult to believe that there could have been an oral agreement to transfer such an expensive property without there being any document recording or evidence such agreement or even a trail of documents or communications evidencing any such alleged agreement. The defendant has also not led the evidence of any witnesses in support of the alleged oral agreement of transfer. Both the plaintiff's father and the defendant's husband were well known public figures and in case there had been any such oral agreement of transfer then this would have come to the knowledge of at least some close relations or contacts. Thus, the defence set up by the defendant seems highly unbelievable.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 26
49. The defendant has also admitted in her cross examination that her late husband had left a registered will and, importantly, that the suit property did not find mention in her late husband's will. It is hard to believe that if the late husband of the defendant was during his lifetime claiming ownership of the suit property on the basis of an oral agreement to transfer then he would not have mentioned the suit property in his will.
50. The relevant portion of the cross examination of the defendant with respect to the registered will is extracted hereunder:
"Que.11 Can you describe all the properties left behind by Mr. R.K. Dhawan, excluding in property in question?
Objected to by Ld. Counsel for the defendant on the ground that it is irrelevant and does not relate to any issue.
Ans. Mr. R.K. Dhawan has left behind 40% shares which he had in R.K. Associates, for me.
Observation:- While the witness has been answering the question put to her, mid way, Ld. Counsel for the defendant intervened to say that the question put to the witness relates to immovable properties and therefore she cannot be arsed about movable properties left behind by Mr. R.K. Dhawan. To this Ld. Counsel for the plaintiff responds by saying that the term "all the properties" used in the question would comprise both movable and immovable properties. Further according to Ld. Counsel there is no provision in law which debars him from asking the witness about movable properties.
During the course of the aforesaid submission being made by both Ld. Counsel, the witness now states that she had not understood the question. It may be pointed out that the question is put by Ld. counsel for the plaintiff was also explained the question as put to her by Ld. Counsel in the same words.
The witness in continuation of the aforesaid part answer now says the following also.
Ans. Answer to the aforesaid question no.11 continues.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 27 Apart from the property in question i.e. 141 Golf Link, New Delhi, Mr. R.K. Dhawan did not leave behind any other property."
"Que.12 Has Mr. R.K. Dhawan left behind any will and whether is registered or unregistered?
Ans. Yes he has left behind a will and I have gone through the contents thereof. The said will is a registered one."
"Que. 13 Has the property bequeathed to you by way of the said will?
Objected to on the ground that it is beyond pleading and also the question about the contents of the will cannot be put to the witness as the same can only be used in a testamentary case. Ans. The said property is not mentioned in the will. (Vol. Mr. R.K. Dhawan only used to verbally say that his property belongs to me and after his death, it will be mine)."
51. During her cross examination, the defendant had deposed that she had heard conversation between her late husband and the plaintiff's father in which allegedly they were talking about the suit property and her late husband had asked the plaintiff's father as to when he would transfer the suit property in his name and the plaintiff's father had replied that he would do it soon and that the defendant's late husband need not worry. It has been deposed that this alleged conversation took place in early 90s. The relevant portion of the cross examination of the defendant is extracted hereunder:
"Q15 Please see copy of the document placed between page Nos. 56 to 58 mentioned at Sr No.5 of the list of documents dated 24.12.2018 filed by the plaintiff and I put it to you that this is a letter dated 28.08.1997 addressed by Sh. R.K. Dhawan to the Income tax department. What have you to say?
Ans. I do not know what he had said in the said letter. (Ld. counsel for the defendant objects to the question on the ground that this document cannot be put to the witness since she is neither the author thereof nor the document concerns.) (Observation: For the purpose of identification, the said letter has been marked as Mark-B page Nos. 56 to 58) CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 28 Q16. I put it to you that in the said letter Mark-B (page Nos. 56 to
58) Mr. R.K. Dhawan had clearly mentioned that the suit property is owned by the plaintiff and her father Sir C.P.N. Singh had given it to Mr. R.K. Dhawan in view of the reasons mentioned therein.
What have you to say?
Ans. Sir CPN Singh himself told Mr. R.K. Dhawan that the suit property is his i.e. of Mr. R.K. Dhawan and I had heard their talk on the telephone, through the speaker.
I do not remember the date when I had heard the talk referred to in my previous answer but it was sometime in early 90's but time I absolutely do not remember. At that time I had gone to meet Mr. R.K. Dhawan."
"Q17.Can you tell the exact conversation which took place between Mr. R.K. Dhawan and Sir C.P.N. Singh, at that time? Ans. In verbatim I do not remember the exact talk which took place between them since that is very old. But they were talking about property No.141, Golf Link, New Delhi wherein Mr. Dhawan had asked Sir C.P.N. Singh as to when he would get the said property transferred in his name i.e. in the name of Mr. Dhawan to which Sir C.P.N. Singh had responded saying that he would get it transferred very soon and Mr. Dhawan should not worry about it since he was there i.e. Sir C.P.N. Singh."
52. It is unbelievable that there could have been an oral agreement for transfer in 1978 under which the late husband of the defendant remained in possession of the suit property and the late husband of the defendant never bothered to get the oral agreement for transfer performed by the plaintiff's father or the plaintiff, and that even in the early 1990s the defendant's husband was only requesting the plaintiff's father for the transfer. There is also no record of the oral agreement for transfer. It is unbelievable that there could have been a transaction of such nature involving a very valuable immovable property. In case there was actually any oral agreement for transfer, any prudent person upon realising that the other side was not interested in executing the transfer would have at least issued letters or notices to the other side and would have ideally CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 29 filed a suit for performance of the agreement to transfer/sell. There is not a single piece of documentary evidence showing that the defendant's late husband had requested the plaintiff's father to execute any sale deed or transfer deed. Also, apart from the defendant's own statement, there is no evidence from any other person regarding any such requests having been made by the defendant's late husband to the plaintiff's father or to the plaintiff. In the absence of any corroborative evidence, I find that the sole testimony of the defendant is not believable.
53. The defendant has also deposed in her cross examination that she started living with her late husband in the suit property since 2007 with her late husband and that this had been with the consent of the plaintiff's father and the plaintiff. The relevant portion of the cross examination of the defendant is extracted hereunder:
"Q35. Please see the portion between points 'A' to 'A' of paragraph No. 6 of your affidavit Ex.DW-1/A and tell us the meaning of the words "adverse possession of the suit property"
used therein?
Ans. Since 1990 I have been with Mr. Dhawan and I started living with him since 2007. I had been living in this living house without any pressure/ill will and this had been given with the consent of Mr. C.P.N. Singh and the plaintiff. It was told that this house was his i.e. of Mr. R.K. Dhawan. In view thereof, Mr. Dhawan had been residing in the property for 40 years and therefore as per the law this house became his and gets transferred to his wife. I had my family there for 20 to 22 years."
54. Thus, it is the defendant's own position that from 2007 onwards she was living with her husband in the suit property with the consent of the plaintiff and the plaintiff's father. This directly runs contrary to the case of the defendant that the defendant's late husband was the owner of the suit property by virtue of an oral agreement to transfer. The clear CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 30 implication is that the defendant's late husband and the defendant were only in permissive occupation of the suit property.
55. In the result, I would hold that the defendant has failed to prove any oral agreement to transfer between the defendant's late husband and the plaintiff or her father. The Issues Nos. 1 and 2 are decided against the defendant and in favour of the plaintiff.
56. In any case, it is difficult to understand how the plea of the defendant that there was any alleged oral agreement to transfer between the defendant's late husband and the plaintiff's father or the plaintiff can save the occupation of the defendant in the suit property. Any right, title or interest in immoveable property can only be transferred by a registered instrument in writing and duly stamped. (See Greater Bombay Coop. Bank Ltd. v. Nagraj Ganeshmal Jain, (2017) 15 SCC 316; Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656). It is not the defendant's case that any registered instrument of transfer/sale has ever been executed in favour of her late husband pursuant to the alleged oral agreement of transfer/sale.
Plea of adverse possession raised by defendant.
57. A perusal of the written statement reveals that apart from only one sentence in paragraph G of the preliminary submissions, there are no details pleaded regarding the claim of adverse possession raised by the defendant. Paragraph G of the preliminary submissions in the written statement is reproduced hereunder:
"G. However, the truth is known to Mr. Dhawan's wife, the defendant, she held her ground and refused to give up in wake of the treachery of the plaintiff. . The defendant considers it her moral CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 31 and marital duty to stand for rights of her husband, who stood for honesty and integrity all its life. The defendant has refused to give away the possession of the suit property to the plaintiff despite the malicious and defamatory campaign being carried out against her by the plaintiff. The present suit is only an attempt to harass the defendant in order to cause the defendant to part with the possession of the suit property. Further, the defendant has the legal right to remain in occupation of the property even by virtue of adverse possession of the suit property. By way of the present suit, the plaintiff is attempting to grab the suit property. Thus, the present suit liable to be dismissed with heavy costs in favour of the defendant."
(Emphasis supplied by me)
58. I may at this stage quote an observation made by Hon'ble Mr. Justice Vivian Bose in the decision of the Hon'ble Supreme Court in Lala Durga Prasad v. Lala Deep Chand, 1954 SCR 360 : AIR 1954 SC 75. In the context of the pleading of the concerned party in the suit in that case, Hon'ble Mr. Justice Vivan Bose had observed:
"This is as vague as it can be and is the kind of woolly pleading which a party who is not sure of his facts and case usually makes; no particulars are furnished."
I would say that this observation would be apt to describe the pleadings of the defendant in her written statement in the present case also. A perusal of the pleadings made in the written statement gives the impression that the defendant is not sure of her facts and that is why she has sought to make vague and "woolly" pleadings in her defence without furnishing any particulars. This holds good for both the pleas taken by the defendant of oral agreement to transfer as well as the alternative plea of adverse possession.
59. Perhaps because the plea of adverse possession was so vague and non-
specific, there was in fact no specific issue framed on the point of adverse CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 32 possession as alleged by the defendant. However, since considerable arguments were made by the learned counsel for the parties on the point of adverse possession, hence, I would deal with the plea of adverse possession also.
60. It was argued by the learned counsel for defendant that the defendant's late husband acquired title through adverse possession which has pursuant to the death of her husband been passed on to the defendant. I find that there are no proper pleadings in the written statement to lay the foundation for a plea of ownership through adverse possession. Apart from a bald plea in one sentence in paragraph G of preliminary submissions in the written statement stating that the defendant had the legal right to remain in occupation of the property by virtue of adverse possession of the suit property, there is nothing else. I find that there are no details as to when the adverse possession commenced against the true owner. There are also no details as to the manner in which the possession became adverse. For a claim of acquisition of ownership by her late husband through adverse possession, the defendant was required to clearly plead and prove as to when his possession became adverse to the plaintiff's father or the plaintiff and what was the nature and manner of adverse possession. I find that the defendant has only pleaded that her late husband came into possession of the suit property through the father of the plaintiff in 1978 and remained in settled and peaceful possession, but there is absolutely no pleading as to when the possession became hostile or adverse and in what manner and what was the nature of the adverse possession. It is well settled that mere long possession does not ipso facto mean adverse possession.
61. It would be appropriate, at this stage, to refer to some judgments of the Hon'ble Supreme Court on the law of adverse possession.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 33
62. In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, the Hon'ble Supreme Court has held as under:
"12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:
"24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co- owners."
(See Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] , SCC p. 504, para 24.)
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. ...
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 34
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 lawful 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 [(1995) 2 SCC 543, p. 554 : AIR 1995 SC 895, p. 902] , SCC p. 554, paras 14-15.)
15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar [(1865) LR 1 Eq 29 : 35 Beav 171 : 55 ER 860] .) Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxton [(1880) 14 Ch D 537 : 43 LT 88] .)
16. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that person's title, which provides that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twelve years next after the time when the right first accrued, and does away with the doctrine of adverse possession, except in the cases provided for by Section 15. Possession is not held to be adverse if it can be referred to a lawful title.
17. According to Pollock, "In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others".
18. It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 35 man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner.
19. In Halsbury's Laws of England, 1953 Edn., Vol. I it has been stated as follows:
"At the determination of the statutory period limited to any person for making an entry or bringing an action, the right or title of such person to the land, rent or advowson, for the recovery of which such entry or action might have been made or brought within such period is extinguished and such title cannot afterwards be reviewed either by re- entry or by subsequent acknowledgment. The operation of the statute is merely negative, it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of the others to eject him."
20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
21. The High Court has 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 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. Above being the position the High Court's judgment is clearly unsustainable. Therefore, the appeal which relates to OS No. 168 of 1985 is allowed by setting aside the impugned judgment of the High Court to that extent. Equally, the High Court has proceeded on the basis that the plaintiff in OS No. 286 of 1988 had established his plea of possession. The factual position does not appear to have been analysed by the High Court in the proper perspective. When the High Court was upsetting the findings recorded by the court below i.e. first appellate court it would have been proper for the High Court to analyse the factual position in detail which has not been done. No reason has been indicated to show as to why it was differing from the factual findings recorded by it. The first appellate court had categorically found that the appellants in the present appeals had proved possession three years prior to filing of the suit. This finding has not been upset. Therefore, the High Court was not justified in setting aside the first appellate court's order. The appeal before CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 36 this Court relating to OS No. 286 of 1988 also deserves to be allowed. Therefore, both the appeals are allowed but without any order as to costs."
(Emphasis supplied by me)
63. In Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316, the Hon'ble Supreme Court has as under:
"12. We have bestowed our thoughtful consideration to the submission advanced and we do not find any substance in the submission of Mr Bhattacharyya. What is adverse possession, on whom the burden of proof lie, the approach of the court towards such plea, etc. have been the subject matter of decision in a large number of cases. In T. Anjanappa v. Somalingappa [(2006) 7 SCC 570] , it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows: (SCC p. 577, para 20) "20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779] . It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. SCC para 11 of the judgment which is relevant for the purpose reads as follows: (SCC p. 785) "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. Non-use 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 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 well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 37 nec precario', that is, peaceful, open and continuous. 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 actual, visible, exclusive, hostile and continued 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 establish his adverse possession. (Mahesh Chand Sharma v. Raj Kumari Sharma [(1996) 8 SCC 128] .)"
14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter.
15.Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law."
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 38 (Emphasis supplied by me)
64. In Dagadabai v. Abbas, (2017) 13 SCC 705, the Hon'ble Supreme Court has held as under:
"5. The respondent filed his written statement. He denied the appellant's claim. In the first place, claiming himself to be the adopted son of late Rustum, the respondent contended that he became the owner of the suit land by inheritance as an adopted son of Rustum. In the second place, he denied the ownership of the plaintiff in the suit land and set up a plea of adverse possession to claim his ownership over the suit land. The respondent contended that he has been in long and continuous possession of the suit land for more than 12 years prior to the date of filing of the suit on the basis of mutation entries made in the revenue record in relation to the suit land. It was alleged that he acquired title over the suit land on the strength of his continuous possession which, according to him, was adverse. It is essentially on these two defences, the respondent denied the plaintiff's case and defended his possession over the suit land.
6. The trial court framed issues and the parties adduced evidence. The trial court, by judgment/decree dated 29-8-1983 in Civil Suit No. 108 of 1981 decreed the appellant's suit. It was held that the appellant (plaintiff) is the owner of the suit land; the defendant failed to prove his adoption; there is no concept of adoption in Muslims and hence there could be no valid adoption of the respondent by Rustum and nor such adoption is recognised in Mohammadan Law; the defendant has failed to prove his title over the suit land on the basis of his alleged possession over the suit land; the defendant is, therefore, in illegal and unauthorised possession of the suit land for want of any right, title and interest and hence liable to be dispossessed from the suit land.
xxx xxx xxx
15. Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that lay on him in accordance with law. When both the courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact were unimpeachable and binding on the High Court.
16. Fourth, the High Court erred fundamentally 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". In our considered opinion, these observations 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 property on the strength of adverse possession and thereby wants CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 39 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 well settled 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.
17. It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.
18. In this case, we find that the defendant 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 instance 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 adverse possession against the plaintiff."
(Emphasis supplied by me)
65. The Hon'ble Supreme Court has held in Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324, as under:
"7. Since the contesting defendants have raised a plea of adverse possession, the burden is on them to prove affirmatively that the bar of limitation prescribed under Article 65 of the Schedule of the Limitation Act, 1963 viz. 12 years, is applicable in the matter to file a suit for possession of immovable property based on title. The limitation of 12 years begins when the possession of the defendants would become adverse to that of the plaintiffs. Thus, it is incumbent on the plaintiffs to file a suit for possession within 12 years from when the possession of the defendants becomes adverse to the plaintiffs.
8. Article 65 presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case. It is needless to observe that where the possession CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 40 can be referred to a lawful title, it would not be considered to be adverse, the reason being that the person whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another's title. Simply put, one who holds possession on behalf of another, does not by mere denial of the other's title, make his possession adverse so as to give himself the benefit of the statute of limitation.
9. In the matter on hand, though the defendants have pleaded that they are the owners of the property, it seems that during the course of the trial, they have given up this contention, inasmuch as they have only concentrated on the contention that they have perfected the title by adverse possession. All through, as is evident from the material evidence on record and their contentions, the defendants have tried to show that they have been in continuous possession of the property for more than 60 years. But there is no iota of evidence to show as to when the defendants' possession in fact became adverse to the interest of the plaintiff. Except for the change of khatian sometime in the year 1970 by the defendants and the payment of taxes for being in possession of property, no material is produced by the defendants to show whether the possession was really hostile to the actual owner. There is absolutely nothing on record to show that there was a hostile assertion by the defendants. We do not find that the defendants had hostile animus at any point of time, from the facts and circumstances of this case. The defendants denied the title of the plaintiffs over the suit property only when the suit came to be filed, inasmuch as the defendants have taken such a contention for the first time in their written statements.
10. The non-use of the property by the owner even for a long time may affect the title of the owner under certain circumstances. The acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. There is a lot of difference between simple possession and adverse possession. Every possession is not adverse possession. The defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be.
11. Until the defendants' possession becomes adverse to that of the real owner, the defendants continue in permissive possession of the property. Only if the defendants' possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed under Article 65 of the Limitation Act, from the point of time the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his title over the property.
12. The defendants are not only required to prove that they have been in possession of the suit property continuously and uninterruptedly, but also need to prove, by cogent and convincing evidence, that there is hostile animus and possession adverse to the knowledge of the real owner.
13. This Court, while discussing the law relating to adverse possession in P.T. Munichikkanna Reddy v. Revamma [P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 at p. 68, para 8] held that, to assess a claim of adverse CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 41 possession, a two-pronged enquiry is required viz. application of the limitation provisions, and the specific positive intention to dispossess on the part of the adverse possessor.
14. In Kishan Singh v. Arvind Kumar [Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591] this Court held: (SCC p. 594, para 5) "5. 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 purposes of brick kiln.
The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee 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 possession for howsoever length of time does not result in converting the permissive possession into adverse possession. Apart from it, the appellate court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse." (emphasis supplied)
15. Talking about the concept of intention to dispossess, Powell v. McFarlane [Powell v. McFarlane, (1977) 38 P & CR 452] was used as guidance in P.T. Munichikkanna Reddy v. Revamma [P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 at p. 68, para 8] , wherein it is stated thus: (P.T. Munichikkanna Reddy [P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 at p. 68, para 8] , SCC pp. 70-71, paras 18-19) "18.On intention, Powell v. McFarlane [Powell v. McFarlane, (1977) 38 P & CR 452] is quite illustrative and categorical, holding in the following terms:
'If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi").
*** If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
*** In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 42 necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.
*** What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.'
19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (wilful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper-owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence."
(emphasis in original and supplied)
16. Thus, it is important to assess whether such intention to dispossess is apparent to the actual owner or not. The intention of the adverse user must be communicated at least impliedly to the actual owner of the property. His hostile attitude should be open to the knowledge of the real owner. It follows that the intention and possession of the adverse possessor must be hostile enough to give rise to a reasonable notice to the actual owner.
17. Applying the test of nec vi, nec clam, nec precario i.e. "without force, without secrecy, without permission" as an established test for finding adverse possession, we find that the defendants have not proved their possession to be adverse to that of the real owner inasmuch as they entered into possession as licensees to begin with and there is nothing on record to show as to when the permissive possession became adverse to the interest of the real owner.
"Animus possidendi" is one of the ingredients of adverse possession, and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. Virtually, the defendants are required to prove the possession to be adequate in continuity, adequate in publicity and to adequately show that their possession is adverse to that of the true owner. It must start with wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
18. The physical fact of exclusion, possession and animus possidendi to hold as owner, in exclusion to the actual owner, are the most important factors to prove adverse possession. A person pleading adverse possession has no equities in his favour. Since he is trying to take away the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 43
19. It is an established position of law that insofar as Articles 64 and 65 of the Limitation Act are concerned, once a party proves its title, the onus of proof would be on the other party to prove the claim of title by adverse possession. In this case, it is an admitted fact that the ownership of the said suit property rests with the plaintiffs. In this given scenario, it is our considered view that the defendants have not proved the onus of adverse possession against the plaintiffs.
20. This Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan [Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517] has opined that there is an urgent need for a fresh look regarding the law on adverse possession by observing thus: (SCC p. 529, paras 32-34) "32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation.
34. In our considered view, there is an urgent need for a fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession."
21. This aforementioned observation was reiterated by this Court in a subsequent judgment of State of Haryana v. Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] wherein the Court observed that the law of adverse possession needs a relook, holding the right to property to be a human right, in addition to it being a constitutional or a statutory right.
22. In light of the above observations of this Court, we find that there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property. This would be in clear violation of the basic rights of the actual owner of the property. There is nothing on record to show that the defendants' permissive possession over the property became adverse to the interest of the real owner, at any point of time. On the contrary, the records reveal that the permissive possession of the defendants continued till the filing of the suit.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 44
23. The defendants have relied upon certain paid tax receipts and khatian extracts. The trial court has, on facts, specifically found that these documents do not disclose the khatian and plot number, and even the tax receipts do not relate to the suit house. Also, the chaukidari receipts (A-1 to A-
16) do not contain the khatian of the suit house. These receipts have been unfortunately believed to prove that the defendants are in adverse possession of the disputed land. Even assuming that those documents relate to the suit house, they, at the most, depict the possession of the defendants and not their adverse possession.
24. Having regard to the totality of the facts, in our considered opinion, the first appellate court as well as the High Court are not justified in arriving at the conclusion that the contesting defendants have perfected their title by adverse possession. In view of the same, the judgment of the High Court as also the judgment of the 9th Additional District Judge, Bhojpur at Arrah are set aside."
(Emphasis supplied by me)
66. There are no equities in favour of a person claiming adverse possession since such a person is trying to defeat the rights of the true owner, and it is for him/her to clearly plead and establish necessary facts to establish his/her adverse possession. Since it was the defendant who was raising the plea of adverse possession, it was incumbent upon the defendant to clearly plead and prove the acquisition of ownership by means of adverse possession. I have already observed that the defendant has failed to make any proper pleadings for the plea of adverse possession in her written statement. Further, even going to the evidence led by the defendant, I find that there is no evidence worth the name which has been led by the defendant to prove that her late husband had acquired ownership through adverse possession. Apart from her own testimony by way of an affidavit in evidence Ex.DW-1/A there is no evidence placed to prove that the defendant's late husband had acquired title through adverse possession. The affidavit in evidence of the defendant Ex.DW-1/A is only a reproduction of the written statement. Thus, with respect to the aspect of adverse possession, the affidavit in evidence of the defendant also suffers from the same defect as the written statement, that is to say that there are CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 45 no details or particulars given regarding the allegation of adverse possession. The relevant paragraphs 6 and 7 of the defendant's affidavit in evidence Ex.DW-1/A are extracted hereunder:
"6. However, as I knew the truth, I held my ground and refused to give up in wake of the treachery of the plaintiff. I consider it my moral and marital duty to stand for rights of my late husband, who stood for honesty and integrity all its life. Therefore, I refused to give away the possession of the suit property to the plaintiff despite the malicious and defamatory campaign being carried out against her by the plaintiff. The present suit is only an attempt to harass mein order to coerce me to part with the possession of the suit property. Further, I state that I have the legal right to remain in occupation of the property even by virtue of adverse possession of the suit property. By way of the present suit, the plaintiff is attempting to grab the suit property.
7. I state that my late husband has been in settled possession of the entire suit property since 1978 as the owner. I state that there was no occasion for any permission being granted by the plaintiff or her father to my late husband to occupy the property.
8. I state that my husband has been in possession of the entire suit property by virtue of his ownership. The said fact is also substantiated by fact that he had been peacefully residing in the said property since 1978 without any protest or interference from the plaintiff till he died. I state that the plaintiff never had possession or any portion of the suit property as the same does not belong to her. There was never an occasion for the plaintiff's goods lying in the suit property belonging to my late husband."
(Emphasis supplied by me)
67. I fail to understand how the defendant is seeking to prove that her husband acquired title through adverse possession with nothing more but only a statement of the defendant on affidavit stating that she had the legal right to remain in occupation by virtue of adverse possession and that her husband had been in settled possession of the suit property since 1978.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 46
68. Admittedly it is the case of the defendant that she came to reside in the suit property with her late husband only in 2007. In her deposition in evidence, it is clearly stated by the defendant that she gained knowledge that her husband was the owner of the suit property only on the basis of her late husband saying so. Apart from her own statement, there is no evidence regarding adverse possession. I would hold that there is no evidence worth the name which the defendant has led to prove adverse possession. There is no evidence of the defendant's husband ever claiming to be owner of the suit property by way of adverse possession. There is no evidence of any possession with hostile intent i.e. animus possidendi of the defendant's husband to deny the ownership of the plaintiff's father or the plaintiff. In order to prove adverse possession, the possession has to be hostile and open to the knowledge of the real owner. Merely because possession has been held for a long time does not make the possession ipso facto hostile and adverse. In the absence of any evidence having been led by the defendant to show that her husband had openly claimed himself to be in hostile possession which was not in consonance with the title of the plaintiff's father or the plaintiff, the defendant has failed to prove acquisition of title by her husband through adverse possession. Mr. R.K. Dhawan was a well-known public figure. In case he had really claimed himself to have been in hostile and open possession, then there would have been plethora of witnesses to testify to this allegation. But the defendant has not examined a single witness apart from her own self. There is not even a single piece of documentary evidence in which the defendant's late husband has claimed title hostile to the plaintiff's father or the plaintiff.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 47
69. The various reasonings on the basis of which I have negatived the defence taken by the defendant of the alleged oral agreement to transfer would also equally apply to the plea set up of adverse possession.
70. As I have already mentioned, during her cross-examination, the defendant as DW-1 has deposed that it was correct that as the heir of Sh. Dhawan she was in possession of all the documents left behind by him, and she has also deposed that from the documents of her late husband, she was unable to find any documents of ownership of the property. Thus, it is clear that there is no documentary evidence in support of the claim of the defendant that her husband had become the owner of the property through adverse possession.
71. The defendant has also admitted in her cross examination that her late husband had left a registered will and that the suit property did not find mention in her late husband's will. It is hard to believe that if the late husband of the defendant was during his lifetime claiming ownership of the suit property on the basis of adverse possession, then he would not have mentioned the suit property in his will.
72. The defendant has also deposed in her cross examination that she started living with her late husband in the suit property since 2007 with her late husband and that this had been with the consent of the plaintiff's father and the plaintiff. Thus, it is the defendant's own position that from 2007 onwards she was living with her husband in the suit property with the consent of the plaintiff and the plaintiff's father. This runs totally contrary to the case of the defendant that the possession of the defendant's late husband was hostile to the ownership of the plaintiff's father or the plaintiff. In case the defendant's late husband was claiming ownership by virtue of hostile position, then where was the need for consent of the CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 48 plaintiff's father and the plaintiff. This goes completely against the plea of adverse possession.
73. Thus, I would hold that the defendant has failed to prove that her husband Late Mr. R.K. Dhawan or the defendant herself had become owner of the property by way of adverse possession.
Possession of the defendant's late husband and of the defendant was on licence basis
74. I have already negatived the defence sought to be raised by the defendant that the defendant's late husband was in possession on the basis of an oral agreement between the plaintiff and the defendant's late husband to the effect that the proprietary interest in the property was to be transferred by the plaintiff to the defendant's late husband. I have also negatived the defence sought to be raised by the defendant that the defendant was entitled to remain in occupation of the property on the basis of adverse possession. As such, the only conclusion which can be drawn is that the occupation of the suit property by the defendant's late husband and the defendant herself was only permissive in nature i.e. on licence basis.
75. Even otherwise, I find that from the deposition of the defendant in her cross-examination, the permissive nature of possession of the defendant's husband and of the defendant is clearly proved. In response to the Questions 19 and 20 in her cross-examination, the defendant as DW-1 has admitted that the suit property was initially given by the late father of the plaintiff i.e. Sir C.P.N. Singh to live therein in 1978. The relevant portion of the cross-examination is extracted hereunder:
"Q19.Please see the portion between points 'A' to 'A' of Special Report titled "Come from the shadows" dated 16.05.2011 March, 1989 and published in Sunday Magazine, Volume 16, Issue 14, after downloading the same from the website of Internet archive and it's till date available at the url: ..................... running into 6 CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 49 sheets along with certificate under section 65B Indian Evidence Act of one Mr. Raghavan G and I put it to you that it was in public knowledge that the property No.141, Golf Links, New Delhi was let out by Sir C.P.N. Singh to Mr. Dhawan. What have you to say? (Ld. Counsel for the defendant objects on the ground that this print out appears to be sourced from an archival website which lacks authenticity, the certificate appended thereto is not in accordance with Section 65B Indian Evidence Act and the defendant is neither the author nor the executing thereof and therefore cannot be put to the witness in cross examination. Also in view thereof it is inadmissible in evidence.) Ans. As far as my knowledge and understanding go this house was never let out by Sir C.P.N. Singh. It was given by him initially to live therein and then it was to be transferred to Mr. R.K. Dhawan.
(Observation: for the purpose of identification the said document along with Certificate have been collectively marked as Mark-C (colly) and copies thereof supplied to Ld. Counsel for the defendant).
Q20. In your previous answer you have inter-alia stated that "It was given by him initially to live therein and then it was to be transferred to Mr. R.K. Dhawan". Please tell us why was it given initially to live in?
Ans. In 1978 I was not in India and therefore I do not know the exact reason as to why it was initially given to live in."
76. With respect to the circumstances in which Mr. R.K. Dhawan came to occupy the suit property, the defendant as DW-1 has answered as follows in her cross-examination:
"Q19.Please see the portion between points 'A' to 'A' of Special Report titled "Come from the shadows" dated 16.05.2011 March, 1989 and published in Sunday Magazine, Volume 16, Issue 14, after downloading the same from the website of Internet archive and it's till date available at the url: ..................... running into 6 sheets along with certificate under section 65B Indian Evidence Act of one Mr. Raghavan G and I put it to you that it was in public knowledge that the property No.141, Golf Links, New Delhi was let out by Sir C.P.N. Singh to Mr. Dhawan. What have you to say?
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 50 (Ld. Counsel for the defendant objects on the ground that this print out appears to be sourced from an archival website which lacks authenticity, the certificate appended thereto is not in accordance with Section 65B Indian Evidence Act and the defendant is neither the author nor the executing thereof and therefore cannot be put to the witness in cross examination. Also in view thereof it is inadmissible in evidence.) Ans. As far as my knowledge and understanding go this house was never let out by Sir C.P.N. Singh. It was given by him initially to live therein and then it was to be transferred to Mr. R.K. Dhawan.
(Observation: for the purpose of identification the said document along with Certificate have been collectively marked as Mark-C (colly) and copies thereof supplied to Ld. Counsel for the defendant).
Q20. In your previous answer you have inter-alia stated that "It was given by him initially to live therein and then it was to be transferred to Mr. R.K. Dhawan". Please tell us why was it given initially to live in?
Ans. In 1978 I was not in India and therefore I do not know the exact reason as to why it was initially given to live in."
"Q79. I put it to you that after the emergency was lifted in India elections were held in 1977 and the Janta Party one with the sweeping majority and it was under such circumstances that Mr. Dhawan was in need of an accommodation for himself so that he could move out of his family home to avoid harassment of his family members by the then ruling government, which resulted him in moving into the suit property. What you have to say?
Ans. It is correct."
77. The defendant has also deposed in her cross examination that she started living with her late husband in the suit property since 2007 with her late husband and that this had been with the consent of the plaintiff's father and the plaintiff. The relevant portion of the cross examination of the defendant is extracted hereunder:
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 51 "Q35. Please see the portion between points 'A' to 'A' of paragraph No. 6 of your affidavit Ex.DW-1/A and tell us the meaning of the words "adverse possession of the suit property"
used therein?
Ans. Since 1990 I have been with Mr. Dhawan and I started living with him since 2007. I had been living in this living house without any pressure/ill will and this had been given with the consent of Mr. C.P.N. Singh and the plaintiff. It was told that this house was his i.e. of Mr. R.K. Dhawan. In view thereof, Mr. Dhawan had been residing in the property for 40 years and therefore as per the law this house became his and gets transferred to his wife. I had my family there for 20 to 22 years."
78. The clear implication from the aforesaid testimony of the defendant is that the defendant's husband was admitted in to the suit property by the plaintiff's father on a permissive basis in 1977 and subsequently the defendant also started living in the suit property with her husband since 2007 on a permissive basis.
Re: Documentary evidence relied upon by the plaintiff
79. The plaintiff has relied upon various documentary evidence in rebuttal to the plea of the defendant that her late husband acquired ownership of the suit property through an alleged oral agreement for transfer or in the alternative through adverse possession.
80. The plaintiff has relied upon Ex.PW-1/1 which is stated to be an affidavit dated 06/01/2015 executed by the defendant's late husband in which also he has admitted that he was staying in the suit property as a licencee enjoying limited permissible possession to stay and fully acknowledged the title of the plaintiff. It would be appropriate to quote the contents of the affidavit in extenso:
"I Shri R.K Dhawan s/o Late Sh. Mela RAm aged 76 presently residing at 141 Golf Links New Delhi state that my family friend Smt. Jayashree Singh d/o Sh. (Late) CPN Singh had permitted me CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 52 to stay as a Licensee without any consideration what so ever in her house at 141 Golf Links New Delhi and accordingly I have been staying as a licensee enjoying limited permissive possession to stay as a resident for all these years and I fully acknowledge the title of Smt. Jayashree Singh over the said property. I am also fully aware that the said property has been lawfully acquired by her in her individual capacity under a properly registered sale deed.
As a person enjoying permissive possession, I am hereby fully conscious and aware that she is entitled vacant possession of the property. She in good grace has agreed to let me be in possession during my life time. I therefore make it clear hereby that immediately on my demise and without any demure whatsoever the said property, 141 Golf Links, New Delhi have to be handed over to Smt. Jayashree Singh or to any of her nominees/authorized representative, or to any of her legal heirs, by the executor of this declaration, Mrs. Aditi Shivender, whom I hereby appoint as my executor for this purpose of handing over the vacant possession of the property peacefully to the said owner, it is fully acknowledged by me that Smt. Jayashree Singh, as a lawful owner, has been paying the municipal corporation due such as property tax, land tax including any other State levies. I have earlier acknowledged the fact of ownership of Smt. Jayashree Singh and my status as licensee to Income Tax Department during August 1997 I fully thank her wholeheartedly for allowing me to stay in the house right from my arduous time and the stay was also happy and peaceful. Our relationship has all along been very cordial.
I am grateful to Smt. Jayashree Singh who has gracefully permitted me to stay in this place peacefully as a licensee without any right of ownership during my life time all these years. Neither I, my wife, nor any of my family members, near and dear, have any right what soever of ownership nor any licence right to stay as licensee whatsoever over the said property and immediately on my demise the vacant possession can be taken over or claimed by the own Smt Jayashree Singh or her legal heirs/authorized representative.
Deponent 6.1.2015 Verification I Shri R K Dhawan above named deponent do hereby verify that late contents of above affidavit are true and correct to my knowledge. I am swearing this affidavit of declaration in presence of the two witnesses named hereunder who are also signing this CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 53 testament affidavit in my presence and in the presence of each other.
Verified at New Delhi on this day of August 2013.
Deponent 6.1.2015"
81. It is submitted by the learned counsel for the defendant that Ex.PW-1/1 is a forged and fabricated document. It is submitted that whereas Ex.PW-1/1 is purported to have been signed on 06/01/2015, the stamp paper is dated 02/08/2013. It is submitted that the plaintiff has been unable to explain this disparity. It is further submitted that the purported affidavit Ex.PW- 1/1 has not been sworn before a notary/oath commissioner and there are no witnesses to the Ex.PW-1/1 and hence Ex.PW-1/1 cannot be read in evidence. The learned counsel for the defendant has also relied upon the evidence of DW-4 Ms. Poonam Saini, Handwriting and Fingerprint Expert, who has tendered her affidavit in evidence Ex.DW-4A. DW-4 has given evidence with respect to her report Ex.DW-4/B in relation to the signatures of Late Sh. R.K. Dhawan.
82. Ex.PW-1/1 purports to bear the signatures of the defendant's late husband. In order to prove the execution of Ex.PW-1/1, the plaintiff has examined herself as PW-1. She has deposed in her affidavit in evidence Ex.PW-1/A, as under:
"13. I state that I had approached Sh. R.K Dhawan after his marriage to the defendant, to reaffirm the understanding that it was only Sh. R.K Dhawan who was permitted to reside in the suit property, and that no one else was either permitted to occupy any portion of the suit property, nor should they be allowed to claim any right or interest on account of his occupation of the portions of the suit property. In order to put all my apprehensions at rest, Sh. R.K Dhawan swore an affidavit wherein he duly acknowledged me as the lawful owner of the suit property and his possession of the suit property as a license without any right of ownership. He further categorically stated in the affidavit that neither his wife i.e. CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 54 the defendant, nor any of his family members or near or dear ones shall ever claim ownership or license right to stay in the suit property. He further undertook that the peaceful and vacant possession of the suit property shall vest with me immediately upon his demise. An executor was also appointed to ensure that the handing over of the possession is carried out smoothly. The original affidavit sworn by Sh. R.K Dhawan is already placed on record and has been marked E. The same is now exhibited as Ex.PW1/1."
83. During her cross-examination, PW-1 has deposed that Ex.PW-1/1 was signed by Mr. R.K. Dhawan in her presence (See Q.70, Q.138, Q.139). The plaintiff (PW-1) has further deposed that Ex.PW-1/1 was handed over to her by Mr. R.K. Dhawan (See Q.61). She has also deposed that Ex.PW-1/1 was handed over to her in his room (See Q.61, 62, 63). She has also deposed that there was nobody else who was present at that time (See Q.64). She has deposed that Ex.PW-1/1 was got typed by Mr. Dhawan and the typing was not in her presence (See Q.66).
84. The plaintiff (PW-1) has deposed that Ex.PW-1/1 was signed by Mr. R.K. Dhawan in her presence and was handed over to her by him. I find the testimony of the plaintiff to be believable. I do not find anything unnatural in the execution of Ex.PW-1/1. As deposed by PW-1, she had approached Mr. R.K. Dhawan after his marriage to reaffirm the understanding that it was only Mr. R.K. Dhawan who was permitted to reside in the suit property and that the possession would be handed over to the plaintiff immediately upon his demise and neither his wife nor any of his family members would claim rights over the property. I have already negatived the defences taken by the defendant. There is no evidence on record that late Mr. R.K. Dhawan had claimed any right, title or interest in the property or ever had claimed to be owner of the property. The facts and circumstances of execution of Ex.PW-1/1 appear to be perfectly natural events. The plaintiff appears to have had doubts CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 55 after the marriage of Mr. R.K. Dhawan since she had trust in Mr. R.K. Dhawan but did not trust what would happen after his demise. It appears that in order to assuage the anxiety of the plaintiff Mr. R.K. Dhawan had executed the Ex.PW-1/1.
85. Even if the Ex.PW-1/1 cannot be called an affidavit proper in the absence of having been notarized before a notary/oath commissioner, that does not take away the admission contained in the statement in Ex.PW-1/1 the execution of which is proved by the testimony of PW-1. Also, merely because Ms. Aditi Shivender who is mentioned as a witness in Ex.PW-1/1 has not signed the document, that would not by itself falsify the testimony of PW-1. PW-1 has deposed that Ex.PW-1/1 was signed in her presence and there was nobody else at that time.
86. The stamp paper on Ex.PW-1/1 mentions the date as 02/08/2013 and the verification portion of Ex.PW-1/1 also mentions the date as August 2013. However, the date below the signatures of Mr. R.K. Dhawan mentions the date as 06/01/2015. The learned counsel for defendant has laid great emphasis on this to argue that the Ex.PW-1/1 is a forged and fabricated document. However, I do not consider this discrepancy to be fatal. It is quite possible that Mr. R.K. Dhawan had purchased the stamp paper on 02/08/2013 and had typed the statement made in Ex.PW-1/1 in August 2013, however, it is plausible that the same may have been handed over to the plaintiff on 06/01/2015 on which date the same was also signed.
87. In so far as the evidence of DW-4 Ms. Poonam Saini, Handwriting and Fingerprint Expert, and her report Ex.DW-4/B in relation to the signatures of Late Sh. R.K. Dhawan, is concerned, her report does not inspire confidence. As per her report, Ex.DW-4/B, the disputed signatures on the affidavits dated 23/01/2017 and 06/01/2015 were "forged by memory". During the course of her cross-examination, she has deposed that the CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 56 "admitted signatures" C-1 and C-2 in Ex.DW-4/C and Ex.4/D were provided by the counsel for the defendant and that she was informed that the said signatures were the admitted signatures of Mr. R.K. Dhawan but that she has no personal knowledge about the same. She has further deposed that she has mentioned C-1 and C-2 as admitted signatures only on the basis of information given by the counsel for the defendant. The plaintiff has given a specific suggestion to DW-4 that C-1 and C-2 were not the signatures of Mr. R.K. Dhawan. Thus, the very foundation of her report Ex.DW-4/B is on the basis that the signatures C-1 and C-2 contained in Ex.DW-4/C and Ex.4/D, respectively, were the "admitted" signatures of late Mr. R.K. Dhawan. However, these signatures were never admitted by the plaintiff to be the signatures of late Mr. R.K. Dhawan. The defendant has also not led any evidence to prove that the signatures C-1 and C-2 contained in Ex.DW-4/C and Ex.4/D, respectively, were the signatures of Mr. R.K. Dhawan. This lacuna makes the entire report Ex.DW-4/B doubtful. Further, DW-4 admits in her cross- examination that generally it takes about a week for DW-4 to give her written report. However, DW-4 has deposed that in the present case that she took the photographs of the signatures on 09/10/2021 at 2.30pm and got the same developed on the same date at Gurugram, and that she completed the report in the morning of 11/10/2021. Thus, the report in the present case was prepared by DW-4 within one day, whereas she has admitted that generally it takes her about a week to give her written report. This also points that the report had been prepared by DW-4 in haste. I would thus hold that the evidence of DW-4 does not inspire confidence and would not rely upon the same.
88. The plaintiff has also relied upon Ex.PW-1/2 which is stated to be an affidavit dated 23/01/2017 executed by the defendant's late husband in which he has admitted that he was staying in the suit property as a CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 57 licencee enjoying limited permissible possession to stay and fully acknowledged the title of the plaintiff. Ex.PW-1/2 purports to bear the signatures of the defendant's late husband and that of two other persons, being Mr. B.M. Bhama and Mr. G. Raghavan, as witnesses. It would be appropriate to quote the contents of the affidavit in extenso:
"I , Shri R.K Dhawan s/o Late Sh. Mela Ram aged 79 years presently residing at 141 Golf links New Delhi state that my family friend Smt Jayashree singh D/O Shri (Late) CPN Singh had permitted me to stay in part of premises on good will and without any consideration/rent so ever in her house at 141 Golf Links New Delhi and accordingly I have been staying as a licensee enjoying limited permissible possession to stay as a resident fully acknowledge the title of Smt. Jayashree singh over the said property. I am also fully aware that the said property has been acquired by her in her lawful individual capacity under a property registered sale deed and is in her or her family self-occupation only.
It is fully acknowledged by me that Smt. Jayashree Singh as a lawful owner and as a self occupier for her family of the remaining property has been paying the municipal corporation due such as property tax, land tax, including any other State levies. I fully thank her wholeheartedly for allowing me to stay in the house intermittently.
Deponent Verification I Shri R K Dhawan above named deponent do hereby verify that the contents of above affidavit are true and correct to my knowledge.
Verified at New Delhi on this 23rd day of Jan 2017 Deponent"
89. The Ld. Counsel for the defendant has argued that the Ex.PW-1/2 is forged and fabricated document and that the purported signatures of the defendant's late husband have been forged in the Ex.PW-1/2. It is submitted that Mr. R.K. Dhawan could not have sworn the said affidavit on 23/01/2017 as he had gone to the BLK hospital for his medical check CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 58 up and treatment of cancer. In this regard, the learned counsel for defendant has relied upon Ex.DW-1/X1 being discharge summary dated 21/01/2017 issued by BLK Hospital asking Mr. R.K. Dhawan for follow up on 23/01/2017 for review in the medical oncology OPD. It is further submitted that the plaintiff had admitted in her cross examination in response to Q.23 that the defendant's husband had undergone four or five surgeries in connection with cancer which he had been suffering from since 1993. It is further submitted that in response to Q.30, the plaintiff has stated in her cross-examination that daily in the evening she used to go to the property in question and Mr. R.K. Dhawan after coming back from his chemotherapy used to lie down on the bed and she after meeting him for some time used to come back. It is further submitted that the plaintiff has neither examined Mr. B.M. Bhama nor the notary who had notarized the Ex.PW-1/2. It is further submitted that PW-2 Mr. G. Raghavan was not an independent witness as he was the Chartered Accountant of the plaintiff and his testimony cannot be relied upon. It is further submitted that PW-2 has admitted in his testimony in response to Q.38 in his cross-examination that it was the plaintiff who had informed the PW-2 that Ex.PW-1/2 had been signed by Mr. R.K. Dhawan and that Ex.PW-1/2 had not been signed by Mr. R.K. Dhawan in the presence of PW-2.
90. In order to prove the execution of Ex.PW-1/2, the plaintiff has examined herself as PW-1. She has deposed in her affidavit in evidence Ex.PW-1/A, as under:
"15. I state that soon after the execution of he aforesaid conveyance deed, Sh. RK Dhawan, swore another affidavit in the year 2017 wherein he once again acknowledged me as the lawful owner of the suit property and his permitted stay in part of the suit property as a licensee enjoying limited permissible possession. The affidavit further acknowledged that all the taxes and levies in CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 59 respect of the suit property were being paid by me as the owner of the suit property. The original affidavit sworn by Sh. R.K Dhawan in 2017 is already placed on record and has been marked as Mark F. The same is now exhibited as Ex.PW1/2."
91. PW-1 has deposed in her cross-examination that Ex.PW-1/1 was signed by Mr. R.K. Dhawan in her presence (See Q.148). She has deposed that after he had signed the affidavit he asked if here were any witnesses and when PW-1 said that there were, he told his servant to bring them (See Q.154, 155). She has deposed that these witnesses were Mr. Raghvan and Mr. Bhama (See Q.156). She has deposed that the witnesses signed the affidavit in the presence of Mr. R.K. Dhawan (See Q.157).
92. In order to prove the execution of Ex.PW-1/2, the plaintiff has also examined PW-2 Mr. G. Raghavan. PW-2 has tendered his affidavit in evidence Ex.PW-2/A. PW-2 has stated in his cross-examination that he had seen the other witness Mr. B.M. Bhama in the suit property for the first time on the date of witnessing of Ex.PW-1/2 (See Q.32). He has deposed that both the witnesses were waiting upon the plaintiff and the defendant's husband in the premises and that they were called by the plaintiff upstairs and the documents were signed there and handed over to them, and Mr. Bhama signed first and subsequently he signed (See Q.35). He has deposed that they were aware that Mr. R.K. Dhawan was ill but he was very much available (See Q.36). He has deposed that when the witnesses had gone upstairs, Mr. R.K. Dhawan was in the room and when they were called in they were informed by the plaintiff that Mr. R.K. Dhawan had signed it just now and they may sign immediately and may leave the room as he was in rest (See Q.37).
93. I find that PW-2's testimony is believable. His testimony does not appear to be dishonest. In respect of paragraphs 5 and 7 of his affidavit, he has candidly stated in his cross-examination that the source of information for CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 60 the statements in the said paragraphs in the affidavit was the plaintiff herself. He has candidly informed that he is a Chartered Accountant and is professionally engaged by the plaintiff and that he is paid for the professional services rendered by him to the plaintiff. I do not find that there is any unnatural in the PW-2 having signed Ex.PW-1/2 as a witness. He was the CA of the plaintiff and she would have trusted him to witness the execution of the Ex.PW-1/2.
94. I do not find anything very unnatural in this sequence of events.
Admittedly, Mr. R.K. Dhawan had undergone chemotherapy and was unwell. PW-2 has deposed that Mr. R.K. Dhawan was in the room when the witnesses were informed that he had just signed Ex.PW-1/2 and they were asked to sign and leave so that Mr. R.K. Dhawan could rest. It is unlikely that the plaintiff would have told the witnesses in front of Mr. R.K. Dhawan that he had signed the document in case he had actually not signed it. During her cross-examination, the plaintiff as PW-1 has also deposed in response to Q.148 that the affidavit was signed by Mr. R.K. Dhawan in her presence. In response to Q.155, the plaintiff as PW-1 has deposed that Mr. Dhawan had signed the affidavit and thereafter asked if the plaintiff had any witnesses and when she stated that they were on the ground floor, he told his servant to bring them. She has further deposed that she had told them that Mr. Dhawan had signed the affidavit and they should also sign the same, who went away after signing the same. Hence, the versions of the PW-1 and PW-2 regarding signing of the affidavit by Mr. R.K. Dhawan are corroborated by each other. There is no inconsistency in their testimony.
95. Even if it has come in the cross-examination of PW-1 and PW-2, that Ex.PW-1/2 affidavit was not signed by Mr. R.K. Dhawan in the presence of PW-2, however, that does not by itself impeach the authenticity of the CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 61 Ex.PW-1/2. PW-1 has deposed in her cross-examination that Mr. R.K. Dhawan had signed the affidavit Ex.PW-1/2 in her presence and that after he signed Ex.PW-1/2 he asked for the witnesses to come, who were called and she told them that Mr. Dhawan had signed the affidavit and they should also sign the same, and that they signed and left. The deposition of PW-2 in his cross-examination corroborates the testimony of PW-1. PW-2 has deposed that when he went upstairs, Mr. R.K. Dhawan was in the room and the witnesses were informed by the plaintiff that the affidavit had been signed just now and that they may also sign, and that they signed and left. I would thus hold that the execution of Ex.PW-1/2 is proved by the testimony of PW-1 as corroborated by PW-2.
96. I do not find any merit in the contention of the ld. counsel for the defendant that the testimony of PW-2 ought to be discarded as he is not an independent witness as he was the CA of the plaintiff. That by itself cannot be a ground for discarding his testimony. Further, merely because the other witness Mr. Bhama has not been called as a witness, that would not by itself be a ground to discredit the testimony of PW-1 and PW-2.
97. Taking Ex.PW-1/1 and Ex.PW-1/2 into consideration, I would hold that the case of the defendant stands totally falsified and it is proved beyond doubt that the defendant's late husband was only a licencee in the suit property and he acknowledged that the licence would terminate upon his demise.
98. In any case, it was the defendant's stand taken in the written statement that she had become owner of the suit property through her husband who had become owner through oral agreement of transfer, and in the alternative, through adverse possession. I find that, even de hors the documentary evidence filed by the plaintiff, even from the testimony of the defendant herself as DW-1 it is proved that the defendant's husband CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 62 was a mere licencee in the property on a permissive basis only. The onus and burden to prove the defence of the oral agreement of transfer and in the alternative of the adverse possession, was heavily on the defendant. I find that the defendant has miserably failed to prove her stand. Not only are the pleadings vague, but there is absolutely no evidence in support of the defence of the defendant. It is only when the defendant had been able to discharge the onus to prove her defence, that the onus would have shifted to the plaintiff to rebut the defence taken. The defendant having in the first instance failed to discharge the onus of proof, it is no argument for the defendant to take that the documentary evidence produced by the plaintiff in rebuttal to the defence taken of the oral transfer and adverse possession was doubtful.
99. In as much as I have already held that the defendant has been unable to prove its defence, and on the basis of the defendant's cross-examination and the plaintiff's evidence discussed in the foregoing paragraphs, I am of the view that the plaintiff has already been able to prove her case, I do not consider it necessary to delve into the other documentary evidence led by the plaintiff such as Ex.PW-2/1 Property Tax Receipts, Ex.PW-2/4 being Magazine article titled "House No.141" published in November 1988 in Probe India, Vol.10, No.9 and Ex.PW-2/5 and article titled "Come from the shadows" published in Sunday magazine, Vol.16, Issue 14 dated March 1989, and Ex.PW-2/6 being Form 16 and declaration dated 15/06/2004 of Mr. R.K. Dhawan before the Returning officer for election to the Council of States from Bihar Constituency, which were exhibited subject to the objections of the defendant as to their admissibility and mode of proof.
Issue 1(a). Whether the suit is maintainable without payment of full ad- valorem court fee? OPD CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 63
100. The Issue 1(a) is on the maintainability of the suit without payment of full ad valorem court fee. The said issue has been framed on the basis of the objection of the defendant that the present suit being simply for mandatory injunction would not be maintainable and that the plaintiff is in effect seeking possession for which the suit ought to be valued ad valorem on the basis of the value of the subject property both for the purposes of jurisdiction and court fees.
101. The case of the plaintiff is that the late husband of the defendant Mr. R.K. Dhawan was inducted into the subject property as a licencee and that he continued to remain in occupation of the property as a licencee till his death on 06/08/2018. In the meantime, the defendant had married Mr. R.K. Dhawan and was residing in the property with him. It is the case of the plaintiff that upon the death of Mr. R.K. Dhawan, the permissive licence came to an end. It is the case of the plaintiff that initially the defendant requested the plaintiff to wait till the mourning period was over, but however when she later restricted the plaintiff's access to the suit property, the plaintiff promptly issue legal notice on 02/11/2018 and file the present suit, i.e. approximately within four months from the date of termination of licence.
102. The learned counsel for the plaintiff has argued that the occupation of the defendant of the suit property was merely as a licencee and that a suit for mandatory injunction against a licencee was maintainable. In this regard, the learned counsel for the plaintiff has relied upon the following judgments: Sant Lal Jain v. Avtar Singh, (1985) 2 SCC 332, paras 6-8; Joseph Severance & Others v. Benny Matthews, (2005) 7 SCC 667, paras 7, 14-15; Mulk Raj Khullar v Anil Kapur & Ors., 2013 SCCOnline Del 3964, paras 6, 10, 16 & 23; Jolly Khanna & Ors. v. Pooja Khanna & Ors., 2021 SCCOnline Del 5319.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 64
103. Per contra, the learned counsel for the defendant has argued that the suit for mandatory injunction would not be maintainable and that the relief which has been sought in the garb of mandatory injunction is in effect the relief for possession which has been sought, and hence the suit ought to be valued ad valorem on the value of property for the purposes of jurisdiction and court fees.
104. It would be appropriate at this stage to refer to some judgments of the Hon'ble Supreme Court on the maintainability of a suit for mandatory injunction by a licensor against a licencee.
105. It has been held by the Hon'ble Supreme Court in Joseph Severance v.
Benny Mathew, (2005) 7 SCC 667, as under:
"7. There was no specific plea taken by the defendants that the suit should be one for recovery of possession and the suit for injunction is not maintainable. In fact, before the trial court and the first appellate court the stress was on something else i.e. the effect of Section 60(b) of the Easements Act, 1882 (in short "the Easements Act") and the alleged non-maintainability of the suit on the ground of non-joinder of necessary parties. Before the High Court the plea was taken for the first time that the suit was not maintainable being one for mandatory injunction and for prohibitory injunction and not one for recovery. Strictly speaking, the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence. The licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case the licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict the licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee's occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises, the suit will be maintainable.
14. In Sant Lal Jain v. Avtar Singh [(1985) 2 SCC 332] in paras 7 and 8 of the judgment, it was observed as follows : (SCC pp. 336-37) CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 65 "7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.
8. The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from someone else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession."
15. The explanation offered by the plaintiffs is plausible. The defendants did not specifically raise any plea that the time taken was unreasonable. No evidence was led. No specific plea was raised before the trial court and first appellate court. The question of reasonable time was to be factually adjudicated. For the first time in the second appeal the dispute essentially founded on factual foundation could not have been raised."
(Emphasis supplied by me)
106. It has been held by the Hon'ble Supreme Court in Bharat Bhushan Gupta v. Pratap Narain Verma, (2022) 8 SCC 333, as under:
"23. The nature of the present suit, as noticed hereinabove, makes it evident on the face of record that the appellant-plaintiff has sought the reliefs of mandatory injunction against the defendants for removing themselves and their belongings from the plot in question, while alleging that the defendants were in occupation thereof only as licensees; and were obliged to remove CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 66 themselves after termination of respective licences. The plaintiff has also prayed for the relief of perpetual prohibitory injunction that the defendants may not create any third-party rights in the suit property or raise any construction thereon. The plaintiff has valued the suit for the purpose of court fees and jurisdiction at Rs 250 for each of the reliefs for injunction and at Rs 1 lakh for damages; and has paid the court fees accordingly.
24. It remains trite that it is the nature of relief claimed in the plaint which is decisive of the question of suit valuation. As a necessary corollary, the market value does not become decisive of suit valuation merely because an immovable property is the subject-matter of litigation. The market value of the immovable property involved in the litigation might have its relevance depending on the nature of relief claimed but, ultimately, the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed.
25. So far as the present suit is concerned, the plaintiff has alleged the defendants to be the licensees and has sought mandatory injunction obliging them to remove themselves and their belongings. Not much of discussion is required to find that with such pleadings, claim of relief of mandatory injunction is not unknown to the legal process. For ready reference, we may refer to the relevant passage from the decision in Maria Margarida Sequeira Fernandes [Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126] as under : (SCC p. 389, para 65) "65. A suit can be filed by the title-holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession."
26. Further in Sant Lal Jain [Sant Lal Jain v. Avtar Singh, (1985) 2 SCC 332 :
AIR 1985 SC 857] , this Court referred to a decision of the Jammu and Kashmir High Court [Milka Singh v. Diana, 1964 SCC OnLine J&K 8 : AIR 1964 J&K 99] with approval and held as under : (Sant Lal Jain case [Sant Lal Jain v. Avtar Singh, (1985) 2 SCC 332 : AIR 1985 SC 857] , SCC pp. 336- 37, paras 6-7) "6. ... In Milka Singh v. Diana [Milka Singh v. Diana, 1964 SCC OnLine J&K 8 : AIR 1964 J&K 99] , it has been observed that the principle that once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed : (SCC OnLine J&K paras 20-21) '20. After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under Section 55 of the Specific Relief CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 67 Act. We might further mention that even under the English law a suit for injunction to evict a licensee has always been held to be maintainable.
***
21. ... (3) That where a licenser approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licenser causes huge delay, the court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and in that case, the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act.'
7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction."
27. In fact, in Mulk Raj Khullar [Mulk Raj Khullar v. Anil Kapur, 2013 SCC OnLine Del 3964 : (2013) 139 DRJ 303] as referred by the High Court in its impugned order, the aforesaid decision in Sant Lal Jain [Sant Lal Jain v. Avtar Singh, (1985) 2 SCC 332 : AIR 1985 SC 857] as also another decision in Joseph Severance v. Benny Mathew [Joseph Severance v. Benny Mathew, (2005) 7 SCC 667] were taken note of and the High Court concluded as follows : (Mulk Raj Khullar case [Mulk Raj Khullar v. Anil Kapur, 2013 SCC OnLine Del 3964 : (2013) 139 DRJ 303] , SCC OnLine Del para 16) "16. The legal position that follows is that where a suit is filed with promptitude against a licensee whose licence is terminated, a suit for mandatory injunction is maintainable."
28. The aforesaid discussion as regards maintainability of suit for mandatory injunction does not require much elaboration for the settled position of law as also for the relevant fact that even in the order impugned, the High Court has not stated anything to the contrary, so far as the question of maintainability of the suit seeking relief of mandatory injunction is concerned. The High Court rather placed this aspect of the matter beyond the pale of doubt while observing, after its extensive reference to the various decisions, that the facts of the present case and that of Mulk Raj Khullar [Mulk Raj Khullar v. Anil CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 68 Kapur, 2013 SCC OnLine Del 3964 : (2013) 139 DRJ 303] were in pari materia. To this extent, the consideration of the High Court had been in tune with the applicable legal principles.
29. However, immediately on the next step, the High Court, with respect, committed serious error by referring to a passage in Mulk Raj Khullar case [Mulk Raj Khullar v. Anil Kapur, 2013 SCC OnLine Del 3964 : (2013) 139 DRJ 303] in isolation and detached from the substance, where the Court had indicated want of any argument about whimsical valuation. That observation in para 30 in the decision of Mulk Raj Khullar case [Mulk Raj Khullar v. Anil Kapur, 2013 SCC OnLine Del 3964 : (2013) 139 DRJ 303] came in the context of observations in another decision of the Delhi High Court in Padmavati Mahajan v. Yogender Mahajan [Padmavati Mahajan v. Yogender Mahajan, 2008 SCC OnLine Del 982 : (2008) 152 DLT 363] , wherein the Court had observed that a suit for injunction could be valued by the plaintiff in his/her discretion subject to the condition that such discretion ought not to be whimsical. The use of generalised expression "whimsical", without specifications, has been picked up by the High Court in the impugned order and then, the market value of the plot in question, as stated by the plaintiff in his cross-examination, has been taken by the Court to be indicative of arbitrariness in valuation. With respect, the High Court even missed out the relevant statement of law in the very passage reproduced in Mulk Raj Khullar [Mulk Raj Khullar v. Anil Kapur, 2013 SCC OnLine Del 3964 : (2013) 139 DRJ 303] , wherein it was stated in clear terms that such a suit was "not required to be valued at the market value of the property".
30. The High Court has not even considered the overall circumstances of the present case where the plaintiff has valued the reliefs of mandatory and prohibitory injunction at the nominal Rs 250 but, at the same time, has also valued the suit with reference to the claim of damages at Rs 1 lakh and had paid the court fees accordingly. It is apparent on the face of the record that despite unquestionable principle of law that such a suit for mandatory and prohibitory injunction is not required to be valued at the market value of the property, the High Court has relied only upon the market value of the property to hold the valuation of the present suit to be "arbitrary". Such a conclusion of the High Court neither stands in conformity with law nor with the frame and the nature of the present suit."
(Emphasis supplied by me)
107. From the aforesaid, the law can be summarised that a suit for mandatory injunction against a licencee would be maintainable when the licensor has approached the Court with promptitude.
108. The plaintiff has proved in her evidence that after the death of Mr. R.K. Dhawan on 06/08/2018, initially the plaintiff had requested the defendant to vacate the property and had thereafter issued legal notice on CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 69 02/11/2018 and filed the present suit on 24/12/2018. It is not the case of the defendant that the plaintiff had prior to the death of Mr. R.K. Dhawan on 06/08/2018 ever asked the defendant or her late husband to vacate the suit property. Thus, after requesting the defendant to vacate the suit property on 06/08/2018 followed by a legal notice on 02/11/018, the plaintiff has filed the suit on 24/12/2018. I would hold that the plaintiff has approached the Court with promptitude.
109. The learned counsel for the defendant has argued that the plaintiff has been unable to prove her possession over the suit property and hence the suit for mandatory injunction is not maintainable. It is submitted that the plaintiff has been unable to prove possession over the barsaati portion of the suit property as claimed in the plaint. It is submitted that the defendant has been in exclusive possession of the entire suit property, and hence, the suit for mandatory injunction was not maintainable and that only a suit for possession could have been filed on filing ad valorem court fees on the market value of the suit property. I do not find any merit in this contention. It is well established that the licencee is deemed to be in possession on behalf of the licensor and the legal possession continues to be that of the latter. (See Geeta v. Ashok Kumar 1981 SCC OnLine P&H 292 : PLR (1982) 84 P&H 291; Smt. Premlata Devi v. Smt. Radha Devi 2009 SCC OnLine Pat 1372 : (2009) 4 PLJR 114). Further, as held by the Hon'ble Supreme Court in Joseph Severance's case (supra), even after the termination of the licence, the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee. I have already negatived the defences which have been taken by the plaintiff and I have already held that the defendant's husband and the defendant were only licencees in the suit property on a permissive basis. Thus, the possession of the suit property by the defendant as a licencee was in effect the possession of the plaintiff.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 70
110. The learned counsel for the defendant has sought to distinguish the judgment in Sant Lal Jain (supra) on the basis that in that case, the plaintiff was in possession of the whole property except the "suit shed"
which alone was in the possession of the defendant in that case. It is submitted that it is on such facts that the suit for mandatory injunction was held to be maintainable. It is further submitted that in the present case, the entire suit property was in the exclusive possession of the defendant's late husband, and hence, the suit for mandatory injunction was not maintainable. Again, I find no merit in this contention. Once, I have held that the defendant's husband and the defendant were only licensees in the suit property, then the possession of the licensees is deemed to be the possession of the licensor.
111. The learned counsel for the defendant has relied upon the judgments of the Hon'ble High Court of Delhi in Ashok Chaudhary v. Dr. Inderjit Sandhu 1998 SCC Online Del 405, Habil Khorakiwala v. Dr. Sara Taizoon Khorakiwala MANU/DE/1128/2016, Inderpal v. Des Raj MANU/PH/0601/1999, and Jugal Kishore v. Des Raj Seth (1968) 4 DLT 571 (FB), to argue that the substance of the relief in the present case which is couched as a mandatory injunction is in essence the relief of possession and hence, the plaintiff is liable to value the suit for the purposes of pecuniary jurisdiction and court fees ad valorem on the market value. I am not inclined to accept this submission of the learned counsel for the defendant as these cases were on their own facts. As held by the Hon'ble Supreme Court in Joseph Severance (supra), Sant Lal Jain(supra), and Bharat Bhushan Gupta (supra), a suit for mandatory injunction by a licensor is maintainable against a licencee when the same is filed with promptitude and without delay. I have already arrived at a finding on the basis of the evidence on record that the status of the CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 71 defendant's late husband and the defendant was as a licencee in the property and that upon termination of the licencee, the plaintiff has approached the Court with promptitude. Hence, the suit for mandatory injunction would be maintainable.
112. The case of Habil Khorakiwala (supra) does not help the case of the defendant, as the facts therein are clearly distinguishable. In the said case the Hon'ble High Court has specifically observed that the plaintiff in that case had not even pleaded the existence of licence or its termination. In the said case the Hon'ble High Court had upon a perusal of the plaint held that there were no pleadings regarding a licence and on the contrary the allegation was that the defendant was in unauthorized and illegal possession of the property. On this basis the Hon'ble High Court had held that the suit was in substance a suit for possession and not a suit for mandatory injunction. The decision in the said case was in the context of the particular pleadings in the plaint in that case and the same are clearly distinguishable from the facts of the present case. I find that in the present case in substance the plaintiff has pleaded in the plaint that the defendant's late husband was a licencee in the property and upon his death the licence came to an end and the defendant was asked to vacate the property. The present case is based upon a licence and its termination, and I would hold that the suit for mandatory injunction is maintainable in the facts of the present case.
113. The judgment in Jugal Kishor case (supra) does not also help case of the defendant as the said case was based on the peculiar pleadings in the plaint in the said case, on the basis of which the Hon'ble High Court held that the plaint read as a whole was in substance a plaint praying for possession and not for mandatory injunction. In the present case, I have held that the pleadings in the plaint are on the basis of a licence and its CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 72 termination and as held by the Hon'ble Supreme Court in Sant Lal Jain case (supra), a suit for mandatory injunction would be maintainable against the licencee if filed with promptitude.
114. The Inderpal case (supra) also does not help the case of the defendant, in as much as in the said case the Hon'ble High Court had found that the defendant was in possession not as a licencee and hence the suit for mandatory injunction was held to be not maintainable.
115. In so far as the reliance placed on Ashok Chaudhary (supra) is concerned, I would only refer to the judgment of the Hon'ble High Court of Delhi in Malik Mohd Tanveer v. Uzma Malik 2016 SCC OnLine Del 4515, in which it was observed that the judgment in Ashok Chaudhary (supra) did not notice the judgments of the Supreme Court in Joseph Severance v. Benny Mathew (supra) and Sant Lal Jain v. Avtar Singh (supra).
116. The learned counsel for the defendant has further submitted that the plaintiff has averred in paragraph 14 of the plaint that the defendant was a trespasser and hence, the suit for mandatory injunction was not maintainable and only a suit for possession could have been filed. I do not find any merit in this contention of the defendant. The plaint has to be read in a holistic manner and what is to be considered is the substance of the plaint. On a holistic reading of the plaint, it is the clear case of the plaintiff that the defendant's husband was a licencee in the suit property and upon his demise the licence came to an end, and that thereafter the plaintiff as the licensor requested the defendant to vacate the suit property. It is in this context that the plaintiff has stated that upon refusing to vacate the suit property, the defendant became a trespasser in the suit property and the plaintiff was constrained to file the present suit for mandatory injunction. I have already held that the present suit for CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 73 mandatory injunction has been filed by the plaintiff with promptitude, and hence, merely because in one paragraph of the plaint, the plaintiff has described the defendant as a trespasser, the same would not mean that a suit for mandatory injunction was not maintainable.
117. The learned counsel for the defendant has lastly sought to argue that, without prejudice to the defence taken in the written statement, the licence in the present case was an irrevocable licence under section 60 of the Indian Easements Act. It has been submitted that the defendant's late husband was enjoying exclusive possession of the suit property under an oral arrangement for transfer of exclusive enjoyment and possession of the suit property in favour of the defendant's late husband, thereby making the arrangement irrevocable. The learned counsel for the defendant has further relied upon the judgment of the Hon'ble Supreme Court in Ram Sarup Gupta v. Bishun Narain Inter College (1987) 2 SCC 555 to argue that an oral grant or a licence coupled with an understanding that the property is to be used exclusively by the licencee is irrevocable. I am afraid I am not inclined to entertain this submission. This stand was never taken by the defendant in its pleadings. Rather, it was the case of the defendant that her late husband had become owner of the suit property through an oral agreement of transfer and in the alternative, through adverse possession. This stand having never been raised in the pleadings, no issue was ever framed on this point and no evidence led. The defendant cannot now at the stage of final arguments, seek to raise new pleas which were never taken in the pleadings. In any case, even this contention is as vague as vagueness can be. I am unable to understand how the licence in the present case was coupled with transfer of property. The defendant has failed to prove that there was transfer of any property by the plaintiff or her father to the defendant's late husband or to the CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 74 defendant. Hence, the question of any transfer of property coupled with the licence does not arise.
118. The case of Ram Swaroop Gupta (supra) is clearly distinguishable. In the said case, the facts were that the defendant had been granted a licence and had executed work of permanent character and incurred expenditure, thus it was held that the licence was irrevocable as the licence under Section 60 (b) of the Easements Act. The facts in Ram Swaroop Gupta case (supra) are clearly distinguishable from the present case since the Hon'ble Supreme Court in the said case clearly found that the pleadings in substance did raise the plea of irrevocable licence and there was evidence on record for consideration of the said plea. In the present case I neither find any pleadings nor any evidence in support of plea of irrevocable licence. Rather, it has been the stand taken by the defendant in the present case that the defendant had become the owner by succession through her husband who himself had become owner by way of an oral agreement of transfer, and in the alternative through adverse possession. Hence, there is no occasion to entertain any plea of an irrevocable licence. In the present case, the Ld. Counsel has argued that the case falls under Section 60 (a) of the Easements Act which provides that when the licence is coupled with a transfer of property and such transfer is in force then the licence would be irrevocable. However, there are no pleadings to this effect in the written statement. Further even ongoing through the evidence, I find that there is nothing on record which shows that there was any transfer of any property to the defendant, and hence the question of the licence being irreparable does not arise.
119. In view of the aforesaid discussion, I would hold that the present suit for mandatory injunction would be maintainable against the defendant. As such, it was permissible for the plaintiff to value the suit as per the CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 75 plaintiff's discretion. Hence, the Issue No. 1(a) is decided in favour of the plaintiff and against the defendant.
Issue 3. Whether the plaintiff is entitled to decree of mandatory injunction as prayed in para (a) of the prayer clause? OPP
120. I have already negatived the plea of oral agreement to transfer and adverse possession as alleged by the defendant. I have also held that the occupation of the suit property by the defendant's late husband and the defendant was on licence basis. I have also held that the present suit for mandatory injunction would be maintainable being a suit by a licensor against a licencee filed with promptitude. The licence has already terminated. I do not find that there is any impediment to the grant of mandatory injunction to the plaintiff as prayed for.
121. In the result, I would hold that the plaintiff is entitled to mandatory injunction against the defendant for vacating the suit property and handing over the suit property to the plaintiff. Hence, the Issue No.3 is decided in favour of the plaintiff and against the defendant.
Issue 4. Whether the plaintiff is entitled for recovery of mesne profits/or damages, as prayed in prayer clause (b)? If yes, at what rate and for what period? OPP
122. The licence of the defendant was co-extensive with the permissive licence granted to her husband which ended with his death on 06/08/2018. The plaintiff issued the defendant with notice dated 02/11/2018 to vacate the suit property within 10 days. Accordingly, the defendant was liable to vacate the suit property by 12/11/2018. I have already held that the plaintiff is entitled to mandatory injunction against the defendant for vacating the suit property and handing over the suit property to the CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 76 plaintiff. I would thus hold that the plaintiff is entitled to and the defendant is liable for payment of mesne profits from 12/11/2018 till the vacation of the property.
123. The plaintiff has sought the relief of mesne profits/damages at the rate of Rs. 8,50,000/- per month, on the basis that this was the prevailing market rate, for the period from August 2018 till the vacation of the property by the defendant. The plaintiff has pleaded in paragraph 18 of her plaint that the prevailing market rate of the property was Rs. 8,50,000/- per month. In response to the paragraph 18 of the plaint, the defendant in paragraph 18 of the written statement has not specifically denied that the prevailing market rent for the property was not Rs. 8,50,000/- per month. The stand taken by the defendant was that since the defendant was rightfully occupying the suit property having inherited the same from her husband, there was no question of the plaintiff being entitled to recover from the defendant mesne profits in the form of monthly rent to the tune of Rs. 8,50,000/- per month.
124. In support of her plea that the prevailing market rent for the property was not Rs. 8,50,000/- per month, the only evidence in support led by the plaintiff is her affidavit in evidence Ex. PW-1/A in which she has stated that the prevailing market rate of the suit property was Rs. 8,50,000/- per month. The defendant has in the written statement not specifically denied that the market rent for the property was Rs. 8,50,000/-. I also find that there is no suggestion put to PW-1 that the market rent for the property was not Rs. 8,50,000/- but something lower. The only suggestion which was given to PW-1 was that she was not entitled to any mesne profits as she had never sought to know the market rate of rent of similarly situated properties. The defendant has not led any evidence to show that the market rent for the property was any other lower amount. I will take into CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 77 consideration that apart from the plaintiff's own testimony there is no corroborative material to show that the prevailing market rent for the property was Rs. 8,50,000/- per month. It is not clear on what basis PW-1 has deposed that the prevailing market rent for the property was Rs. 8,50,000/- per month. The plaintiff ought to have led corroborative evidence to support the statement of the plaintiff regarding the prevailing market rent. This could have been done by filing the certified copies of registered lease deeds or by leading evidence of property brokers in the area or any other evidence which would give an idea of the market rate of rent. The plaintiff had ample opportunity to lead evidence but this was not done.
125. However, this does not mean that I cannot take judicial notice that the area of Golf Links is a well-known posh area of New Delhi and properties situated therein charge good amount of rent. The suit property in the present case is situated in one of the poshest areas in New Delhi being Golf Links and comprises of a two storied residential house constructed on an area admeasuring 375 square yards. Even as per the written statement of the defendant, the market value of the property would be at least Rs. 80 crores by modest estimates. I would take judicial notice that the rent for such a property in Golf Links comprising of a two storied residential house constructed on an area admeasuring 375 square yards would at the minimum not be less than Rs. 2,00,000/- per month. I would also take judicial notice that the rents are on the rise in the good localities of New Delhi. I would thus grant mesne profits to the plaintiff and against the defendant at the rate of Rs. 2,00,000/- per month from 12/11/2018, with an increase of 10% every two years, till the ultimate vacating of the property by the defendant.
CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 78
126. In the result, decree of mandatory injunction is passed in favour of the plaintiff and against the defendant for vacating the suit property and handing over the suit property to the plaintiff. Further, decree of mesne profits is passed in favour of the plaintiff and against the defendant at the rate of Rs. 2,00,000/- per month with an increase of 10% every two years, from 12/11/2018 till the ultimate vacating of the property by the defendant.
127. Costs are decreed in favour of the plaintiff.
Decree sheet be drawn up accordingly, subject to payment of court fees towards future mesne profits.
File be consigned to record room.
Judgment pronounced in open court.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/16.01.2023 CS NO.01/2019 JAYASHREE SINGH VS. ACHALA MOHAN PAGE NO. 79