Delhi District Court
Salim & Ors. vs . Aftab & Ors. on 3 October, 2012
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IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
RCA No. 54/11
In the matter of :
Salim & Ors. Vs. Aftab & Ors.
03.10.2012
ORDER :
Vide this order, I shall dispose off the present appeal against the judgment and decree dated 19.11.2011.
BRIEF FACTS ARE AS UNDER : The appellant no.1, Sh. Salim (now deceased) S/o Late Sh. Basiuddin and his son, Sh. Taslim filed a Civil Suit seeking a Decree of Declaration and a Decree of Perpetual Injunction against the respondents / defendants. The said civil suit was initially numbered as 166/2000 and subsequently renumbered as 164/2002.
The claim of the plaintiffs / appellants in the suit filed by them was that they were in settled possession of suit premises since 1978, which was a shop admeasuring 9.5 ft.X 10.5ft. in property no.337D, Batla House, Main Road, New Delhi110025. They sought a declaration that the defendants / respondents RCA No. 54/2011 Contd....P..1 of 17 : 2 : had no locus or right in the suit premises and the permanent injunction sought was that the defendants / respondents, their agents, employees, assigns, attorneys and all persons claiming through them be restrained from dispossessing the appellants from the suit premises.
That the defence taken by the defendants / respondents was that the appellants were tenants in the suit premises and the respondents / defendants were their landlords.
By the judgment and decree dated 19.11.11, the suit of the appellants / plaintiffs has been partly allowed. Decree of Declaration sought by them has been declined, but the Decree of permanent Injunction has been granted. The present appeal has been filed challenging the correctness of the judgment and decree dated 19.11.11, whereby the relief of Decree of Declaration has been declined.
GROUNDS : i Because the impugned judgment and decree do not take stock of the entire material on the record in the right perspective and is not based on the wellsettled principles of law.
ii Because the impugned judgment and decree after accepting of that
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appellants / plaintiffs were in settled possession of the suit premises since 1978 and they were not tenants in the suit premises under the respondents / defendants did not accept that the appellants / plaintiffs were in suit premises on their own accord and account and not because of the respondent / defendants. Therefore, the impugned judgment and decree should have also allowed the relief of Declaration as well.
iii Because the impugned judgment and decree do not correctly decide the Issue No.3, whereby the Ld. Trial Court was to determine whether the suit property was under the ownership of the respondents / defendants. Material on record has not been shifted or analyzed qua the issue of respondent / defendants being the owners of the suit premises. The issue was not whether the appellants / plaintiff were the owner of the suit premises. They showed conclusively that they were in settled possession since 1978 in the suit premises. Their remaining in settled possession for such a long time made them the owners of the suit premises against the entire world, saving the person who had the title thereof. Therefore, it was incumbent upon the respondents / defendants to establish their ownership rights and titles in the suit premises. If, they failed to do so, which they did, the obvious conclusion would have been that they are not the owners of the suit premises and thus have no rights to interfere with the peaceful possession and enjoyment of the suit premises by the appellants / plaintiffs.
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iv Because the impugned judgment and decree do not appreciate that
the respondents / defendants have singularly failed to put on record any cogent and convincing forensic proof relating to ownership of the property, or the dimensions thereof. DW1 and DW2 vaguely mentioned, without putting on record any documentary proof, that some 1810 sq. yards land was purchased by 11 persons. At some places DW1 and DW2 assert that this land of 1810 sq. yards is equally divided among 11 persons. However, no site plan, no registered document, no government record has been placed on record, in this respect. Further, DW2 has categorically admitted in his crossexamination that the said land was not equally divided among the 11 persons and some got more land and some less. He even admitted that he got only 50 sq. yards of land, though he was also one of those 11 persons, who had jointly purchased the land of 1810 sq. yards. No proof has been put on record, as to how much land was actually acquired and taken by late Sh. Muktiar Ahmed, the predecessorininterest of the respondent / defendants. In the absence of the exact measurements and the exact area of the property under the ownership and possession of the respondent / defendants, it should have been held that no proof whatever has been given by the respondent / defendants to establish that the suit shop was under their ownership.
v Because the impugned judgment and decree do not appreciate that even DW2 has categorically supported the case of the appellants / plaintiffs in so RCA No. 54/2011 Contd....P..4 of 17 : 5 : much as he has stated during his crossexamination that there was a nala about 7/8 ft. wide adjoining to the property of late Sh. Mukhtiar Ahmed. Further, PW2, the Ld. Local Commissioner visiting the spot at the direction of the Court has also submitted in his report dated 01.07.2000 to the following effect:
"And whereas I also been informed by the neighbours and other residents present at the site that the shops on the main road are unauthorizedly constructed and even covered over the main sewer / pipe and water line."
All these conclusively establish that the suit shop is not under the ownership of the respondent / defendants, hence the respondents / defendants have no legitimate legal right to assert their ownership on the suit property of shop.
vi Because the Ld. Trial Court has not considered the ratio of the following judgments relied upon by the appellants in support of their contentions. Photocopies of the judgments were duly filed and they form part of the record of the Ld. Trial Court.
a East India Hotels Ltd. Vs. Syndicate Bank, 1992 Supp (2) SCC 29;
and b Krishna Ram Mahale Vs. Shobha Venkat Rao, 1989 (4) SCC 131;
and
c Society of Holistic Child Development India Vs. Church of Morth
India, 1967 (2010) DLT 216; and
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d Deep Chand Vs. Kulanand Lathera, 140 (2007) DLT 765.
The respondents did not file any reply and the matter was directly argued.
Arguments heard. Record perused carefully.
The appellants have got a decree of permanent injunction in their favour and the relief of declaration has been declined by Ld. Trial Court. The declaration which the appellants had sought was that the respondents have no right, interest or title in the suit property. The respondents had submitted before the Ld. Trial Court that the appellant No.1 was inducted by their father, Late Sh. Mukhtar Ahmad as a tenant in the suit property in the year 1980. He was running a pan shop in the same. It was also submitted that the appellants have parted the suit property by partition without permission of the respondents and opened a watch repaircumsale shop. It was also submitted that the shops were constructed by Late Sh. Mukhtar Ahmad in the year 1974 and he had received notice from DDA U/s 30(1) of DMC Act. The respondents had submitted before the Ld. Trial Court that a notice dated 06.12.1982 was also received by Late Sh. Mukhtar Ahmad from MCD. The ld. Trial Court had framed the following issues :
i. Whether the plaintiffs are entitled to the relief of declaration as RCA No. 54/2011 Contd....P..6 of 17 : 7 : claimed in the plaint? OPP ii. Whether the plaintiffs are entitled to the relief of permanent injunction as claimed in the plaint? OPP iii. Whether the suit property is under the ownership of the defendant? OPD iv. Whether the plaintiff are the tenants in the suit property? OPD v. Relief.
The appellant is aggrieved by the decision of Ld. Trial Court with respect to issues No.1 & 3.
ISSUE NO.1 :
Whether the plaintiffs are entitled to the relief of declaration as claimed in the plaint? OPP ISSUE No.3 Whether the suit property is under the ownership of the defendant? OPD The issues in the civil suit were framed on 08.01.2008 and the matter was adjourned severally for plaintiff evidence and the defendants evidence and the impugned order was passed on 19.11.11. The appellants did not ever object to framing of these issues. The appellants have claimed ownership of the suit property on the basis of settled position before this court. In the plaint, the appellants had submitted that they are owners in possession of suit RCA No. 54/2011 Contd....P..7 of 17 : 8 : property since 1978.
A perusal of TCR reveals that PW1 i.e. appellant no.1 herein in his crossexamination stated that he was living in the suit property before 1979 and was doing the work of sewing and he deposed that he did not get done demarcation of the suit property nor he had any document of ownership regarding the suit property. He further deposed that he had raised the construction over the suit property in the year 1978 but the plan was not sanctioned by MCD, he did not check the record of MCD or Patwari before raising the construction as to whether the property belonged to some other person or not. The said deposition reveals that the construction was carried on by appellant no.1 without verifying from the MCD as to whether the suit land belongs to any other person or not. The said deposition becomes relevant in the context that appellant no.1 has no documents of ownership of suit property with him. Before this court also appellants have raised their claim against the suit property on the basis of settled possession.
Appellant has relied on observations of Hon'ble Supreme Court of India in the matter of East India Hotels Ltd. Vs. Syndicate Bank, 1992 Supp. (2) SCC 29 wherein it was held that "Law respects possession even if there is no document to support it. No one is permitted to take law in one's own hands and to dispossess the person in actual settled possession without due course of law."
RCA No. 54/2011 Contd....P..8 of 17 : 9 : Appellant has also referred to observations of Hon'ble Supreme Court of India in the matter of Rame Gowda (Dead) by LRs Vs. M Varadappa Naido (Dead) by LRs & Anr., (2004) 1 SCC 769 where it was held that "A person in possession in land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. Possessio contra omnes valet prater eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right). In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted."
It was also observed that "Settled possession gives a right to possession such that even the rightful owner may only recover it by taking recourse to law."
Appellant has also relied on observation of Hon'ble Supreme Court of India in the matter of Krishna Ram Mahale (Dead) 1 by his LRs Vs. Shobha Venkat Rao, (1989) 4 SCC 131 where it was held that "Where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he can not be dispossessed by the owner of the property except by recourse to law". Similar were the observations of Hon'ble High Court RCA No. 54/2011 Contd....P..9 of 17 : 10 : of Delhi in the matter of Society of the Holistic Child Development India Vs. Church of North India Synod and Anr., 167 (2010) DLT 216.
A perusal of all these judgments imply that a person in settled possession has a good title against the whole world except the true owner and a true owner also cannot dispossess the person in settled possession except by recourse to law.
Appellants have admittedly no document of ownership in their favour and have sought the two reliefs before Ld. Trial Court on the basis of settled possession. Ld. Trial Court has rightly allowed the relief of permanent injunction in their favour in view of settled possession.
None of the judgments relied upon by the appellants supports the submission of the appellants that a person in settled possession becomes the owner of the property. He only has a better title against the whole world except the true owner. Respondents have derived their title through Sh. Mukhtar Ahmed i.e. their father. Name of Sh. Mukhtar Ahmed is recorded as owner in MCD records as is clear from the documents filed by respondents and also by testimony of DW3 summoned witness from MCD, who brought the summoned record i.e. house tax, inspection report and notices etc. (Ex. DW3/1) pertaining to suit property and as per MCD records, the suit property stood in the name of RCA No. 54/2011 Contd....P..10 of 17 : 11 : Sh. Mukhtar Ahmed. Appellant no.1 had not ever filed property tax with respect to suit property and he had also not taken any action to include his name in MCD records as owner of the suit property. Appellants had filed before Ld. Trial Court an inspection report of MCD dated 31.01.1984 where Sh. Mukhtar Ahmed is reflected as owner of suit property and appellant no.1 is shown as tenant. Though appellant no.1 refused to sign as tenant in the said inspection report, however even after that he did not make any effort to verify the records of MCD or to incorporate his name in MCD records with respect to ownership of suit property. Thus, appellant had acquiesced to Sh. Mukhtar Ahmed being treated as owner of the suit property. Thus he can only claim to have a better title against the whole world but not with respect to Sh. Mukhtar Ahmed as well as against respondents as they are legal heirs of Sh. Mukhtar Ahmed. Thus, the observation of Hon'ble Supreme Court of India that in the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title and law presumes the possession to go with the title unless rebutted does not apply to the facts to the present case.
With respect to disallowing the relief of declaration that defendants have no right title or interests in the suit property, Ld. Trial Court has also decided that the suit property is under the ownership of the defendants. Appellant is aggrieved by the findings of Ld. Trial court but the relief of declaration sought in negative terms if disallowed implies that defendants have right title or interest in RCA No. 54/2011 Contd....P..11 of 17 : 12 : the suit property.
Appellants admittedly have no document of title with respect to suit property.
Respondents on the other hand had filed documents of title before Ld. Trial Court along with the plaint and thereafter through an application u/o 13 Rule 2 CPC, The said application was partly allowed by Ld. Trial Court and Ld. Trial Court took on record copy of notice by MCD, House Tax Deptt. for the year 199091, photocopy of house tax of property number 337D i.e. suit property and copy of notice from DDA dated 18.11.1978. All these documents / notices have been executed / issued in favour of Sh. Mukhtar Ahmed with respect to suit property. Appellants in the plaint have submitted that " That one Late Sh. Mukhtar Ahmed came to buy a plot of land admeasuring 75 sq. yards adjoining the shops of plaintiffs and subsequently built the same. The property of the said Sh. Mukhtar had nothing to do with the shops of plaintiffs likewise the plaintiffs have nothing to do with the property of said Sh. Mukhtar Ahmed. However, the municipal numbers of the shop as well as of the property of Late Sh. Mukhtar Ahmed happen to be the same i.e. 337D, Batla House, Main Rd., New Delhi. "
Appellants had also submitted that "That in 1984 Municipal Corporation undertook a survey of properties of the Batla House, New Delhi for RCA No. 54/2011 Contd....P..12 of 17 : 13 : the purposes of fixing the rateable value of the immovable properties. In that connection an Inspector of MCD had come on 31.01.1984 to 337D, Batla House, Main Rd, to check the possession and names of different tenants. Late Sh. Mukhtar Ahmed then maliciously sought to include the name of plaintiff no.1 as one of his tenants. However, the plaintiff no.1 categorically refused to sign the said survey of MCD." The said survey report has been marked as Ex. PW1/3 by appellants before Ld. Trial Court.
A perusal of Ex. PW1/3 reveals that it mentions the name of Sh. Mukhtar Ahmed as assessee with respect to suit property. The date of inspection is 31.01.1984. In the column of name of tenant, name of respondent no.1 is given. Rent is stated to be Rs.100/. The measurement of space occupied by him is stated to be one shop 9"X7" purpose is stated to be commercial. In the column of signatures of tenant, it is stated that respondent no. 1 refused to sign.
A perusal of Ex. PW1/3 reveals that the shop in occupation of appellant no.1 is shown as part of 337D and since the assessment is in name of Sh. Mukhtar Ahmed, the said shop was claimed / assessed as part of 337D belonging to Sh. Mukhtar Ahmed, as per inspection form, MCD dated 31.01.1984. Appellant no.1 has admitted in his crossexamination that he had not got his shop demarcated which he allegedly built in 1978. The said inspection carried out in RCA No. 54/2011 Contd....P..13 of 17 : 14 : 1984 was a clear notice to him that his shop i.e. the suit property was a part of 337D under the ownership of Sh. Mukhtar Ahmed and name of appellant no.1 had been shown as a tenant and admittedly even after that date, appellant no.1 did not get the demarcation of the suit property nor did he apply for sanctioning the plan by the MCD nor he checked the records of MCD to verify the ownership of the suit property. Appellants admittedly have no documents of ownership and have not explained as to how they / appellant no.1 came in possession of the suit property.
Thus, as early as on 31.01.1984, Sh. Mukhtar Ahmed had denied the title of appellant no.1 as owner of the suit property and relief of declaration accrued in favour of appellants on 31.01.1984 for the first time and under Article 58 of Limitation Act, period of limitation for declaration is 3 years from the date when the right to sue first accrues. The suit was filed on 19.05.2000 which is beyond the period of limitation and thus the relief of declaration claimed by the appellants is time barred and the same findings have rightly been recorded by Ld. Trial Court.
Ld. Trial Court has also rightly observed that "Plaintiff no.1 may have refused to sign Ex. PW 1/3 but it is inexplicable as to why the plaintiff had not filled up property tax of his property so that his name could have been reflected in the MCD records as owner of the shop in question. Moreover, on RCA No. 54/2011 Contd....P..14 of 17 : 15 : 31.01.1984, the plaintiff no.1 was aware that Sh. Mukhtar Ahmed was being shown as owner of 337D, Batla House in the MCD records. However, plaintiff failed to initiate any action to include his name in MCD records as owner of the property in question nor he raised any objection before the concerned authorities of MCD due to alleged false reflection of the name of Sh. Mukhtar Ahmed as owner of the entire land. This only goes on to show that plaintiff acquiesced to Sh. Mukhtar Ahmed's being treated as owner of the entire land. Further, Sh. Mukhtar Ahmed or the defendants may not have initiated legal proceedings against the plaintiffs because they might not have perceived the plaintiff as a threat to their interests but admittedly, the plaintiffs were under no restraint which prevented them from taking recourse to legal remedies to crystallize their rights over the suit property."
Ld. Trial Court has also observed that "Coming further, plaintiffs admittedly have no documents to show their ownership over the suit property but instead of seeking their declaration as owners of the suit property, plaintiffs are seeking declaration that defendants have no right, title or interest in the suit property. No doubt, negative declaration can be granted to a person but the same is to be granted only when plaintiffs shows their own rights in the property. Without showing his own right, the plaintiffs can not claim declaration in the negative form as regards the status of the defendants (vide AIR 1986 J&K 24).
RCA No. 54/2011 Contd....P..15 of 17 : 16 : Settled possession as claimed by the plaintiffs only protects the possession of the plaintiffs in the property but does not create any title in them. As against the documents brought on record by defendants as Ex. DW 3/1 (colly), plaintiffs have no brought on record a single document which can establish even an inch of their ownership over the suit property. In addition thereto, the defendants have atleast given some explanation as to how they acquired the suit property but plaintiff are totally mute on this aspect. There is not even a semblance of explanation as to how plaintiffs came in possession of the suit property and by what authority they occupied the same. Admittedly, as per plaintiff no.1's own deposition, plaintiffs have not enquired about ownership of the suit property from any person or authority before occupying the same. Thus, there is no explanation whatsoever furnished by the plaintiffs as to in what capacity the plaintiffs had occupied the suit property."
Respondents are the legal heirs of Sh. Mukhtar Ahmed and the observations made by the Ld. Trial Court in the impugned judgment quoted above and the observations of this court made herein before establish that appellants have failed miserably to prove any title, right or interest in the suit property and also that respondents do not have any title, right or interest in the suit property and accordingly have been declined the declaration prayed for. As observed earlier that otherwise also the relief of declaration cannot be claimed by appellants as the same is time barred.
RCA No. 54/2011 Contd....P..16 of 17 : 17 : In view of observations made herein before, I find no infirmity in the impugned order and is accordingly affirmed. Accordingly the present appeal is dismissed. No order as to cost.
Copy of the order be sent along with TCR to Ld. Trial Court. File be consigned to Record Room after necessary compliance. Dictated and announced in the open court on 03.10.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 03.10.2012 RCA No. 54/2011 Contd....P..17 of 17