Delhi District Court
S.Kawaljit Singh vs Kamla Mehta on 3 February, 2025
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE -02,
WEST DISTRICT: TIS HAZARI COURTS, DELHI.
Civ DJ no. 610405/2016
CNR No. DLWT01-001377-2014
DLWT010013772014
1. S. Kawaljeet Singh,
S/o S. Nirmal Singh,
R/o WZ-123, ( Second floor), Shiv Nagar,
Gali No. 7, New Delhi-110058.
2. S. Amar Deep Singh,
S/o S. Sewak Singh,
R/o 18/76, East Moti Bagh,
Sarai Rohilla, Delhi-110007.
. . . Plaintiffs
Versus
1. Smt. Kamla Mehta,
W/o Sh. Satish Mehta,
R/o FA-WZ-38 C, Mansarovar Garden,
New Delhi-110015.
2. Sh. Vijesh Kathuria,
S/o Shri Panna Lal Kathuria,
R/o 12/17, ( Second floor),
Subhash Nagar, New Delhi-110027.
3. Shri Pramod Kumar,
S/o Shri Diwan Chand,
R/o 14W-18/2, East Moti Bagh,
Sarai Rohilla, Delhi
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 1/61
4. Sh. Kuldip Kohli,
M/s Super Marbal,
At B-10/6, (Ground floor),
Rajouri Garden, Raja Garden Chowk,
Ring Road, New Delhi-110027.
5. Sumit Suri,
C/o Design Point,
Addresses
i) at B-10, ( First floor )
Rajouri Garden,
Raja Garden Chok, Ring Road,
New Delhi-110027.
ii) A-697, Raghubir Nagar,
Near Gian Chhole Wala
New Delhi-110027.
6. Deepak Saini,
at B-10/6, (Top floor),
Rajouri Garden,
Raja Garden Chowk, Ring Road,
New Delhi-110027
. . . Defendants
Date of institution of the case : 01.12.2014
Date on which reserved for judgment : 16.01.2025
Date of pronouncement of Judgment : 03.02.2025
Suit for recovery of possession of 18 sq. yards, completely built
upto first floor and partially built upto second floor (from
defendant no. 1 & 4 to 6) - Defendant no. 4 in occupation of
ground floor, defendant no. 5 in occupation of first floor and
defendant no. 6 displaying sign boards on the partially built
second floor, for recovery of Rs. 9,35,000/- (Rupees None Lac
Thirty Five Thousand), from defendant no. 1, on account of Rent
(paid by defendant no. 2-3 and 4-6 at a monthly rate of Rs.
55,000/- in respect of occupation of all of them, from time to
time), for the period 10/04/2013 to 09/11/2014, for recovery of
damages/mesne profits at the rate of Rs.1,00,000/- per month
( w.e.f 10.11.2014, till realization, from defendant nos 1 and 4 to
6), for Permanent and Mandatory Injunction and for Rendition of
accounts by defendant no, 1.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 2/61
JUDGMENT
1. Vide this judgment, I shall decide the suit for recovery of possession, arrears of rent, mesne profit/damages, for permanent and mandatory injunction filed by the plaintiffs against the defendants.
CASE OF THE PLAINTIFFS AS PER THEIR PLAINT
2. It is averred in the plaint that plaintiffs are the absolute owners and landlords of property ad-measuring 70 sq. yads, having ground floor, first floor and partially built second floor, a free hold property bearing no. B-10/6, situated at Rajouri Garden, Raja Garden Chowk, Ring Road, New Delhi-110027. ( hereinafter referred to as the 'suit property') The portion ad- measuring 52 sq. yds, up to upper levels, is in possession of the plaintiffs.
3. It is further averred in the plaint that the actual, physical possession of the suit property, ad-measuring 18. Sq. yds, is in possession of defendant no. 4 to 6, as tenants, floor wise. Defendant no. 4 has in possession of ground floor, marked-A in the site plan, defendant no. 5 has in possession of first floor, marked -B in the site plan and defendant no. 6 is in the possession of partially built second floor, marked-C in the Site plan. ( defendant no. 6 is displaying sign boards on the partially built second floor).
4. It is further averred in the plaint that the ownership of plaintiffs, in respect of the suit property, was held by Hon'ble Shri Ashwarni Sarpal, the then Additional District Judge-05, CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 3/61 West, Tis Hazri Court, Delhi by judgment dated 05.08.2010 in reference no. LAC 154/09/02, titled Union of India Vs Kamaljeet Singh and others, within the knowledge of defendant no. 1, the said judgment remains unchallenged.
5. It is further averred in the plaint that initially, the plaintiffs found defendant no. 2 and 3 in possession of portion measuring 18 sq. yds of the suit property and they made inquiries from the said defendants, as to about in what manner, they came into possession thereof and started using the same for non-residential use. On this, the defendant no. 2 & 3 informed that they took the portion on rent from defendant no. 1 w.e.f. 10.04.2013 for 24 months, at a monthly rent of Rs. 55,000/- exclusive of other charges. Defendant no. 2 & 3 further revealed to the plaintiffs that their tenancy, in favour of defendant no. 1 was created by executing a registered rent agreement which was registered in the office of SR-II, Janak Puri, New Delhi and they are paying rent regularly to defendant no. 1 @ Rs. 55,000/- per month. The plaintiff informed defendant no. 2 & 3 about their ownership in respect of portion shown red and greed, shown in the site plan and asked them that henceforth they should pay rent to them but defendant no. 2 & 3 did not comply with the directions of the plaintiffs.
6. It is further averred in the plaint that the referred portion measuring 18 sq. yds, out of total 70 sq. yds, for quite some time, now is under the possession of defendant no. 4 to 6. Before giving possession by defendant no. 1 to defendant no. 4-5 as tenants, defendant no. 2-3 had vacated this portion, on all floors, and they then given to the defendant no. 1, a sum of Rs.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 4/61 6,60,000/- on account of rent. It is further averred that plaintiffs have asked defendant no. 1 to pay them the rent paid to her by defendant no. 2- 3 and defendant no. 4 - 6.
7. It is further averred in the plaint that the rent by defendant no. 2-3 and 4-6, at the aforesaid rate, stands paid to defendant no. 1, up to the period ending 09.11.2014. From 09/11.2014, the plaintiffs claim from defendants no. 1 and defendant no. 4-6, charges for wrongful use and occupation of the premises in question payable, by defendant no. 4 to 6. It is further averred that plaintiffs have also tried to prevail upon the defendant no. 1, about not collecting rent from defendant no. 4 to 6 and about directing by her to the said defendants, to deal with plaintiffs as their landlords and also asked defendant no. 4 to 6, to pay them charges for wrongful use and occupation of the premises in question, together @ Rs. 55,000/- per month, exclusive of any other charges.
8. It is further averred in the plaint that, earlier, when defendant no. 2 and 3 were in possession, plaintiffs got issued to all of them, notice dated 25.04.2014 and no reply to the said notice has been given by any of them.
9. It is further averred in the plaint that in the month of May, 2014, when plaintiffs visited the site, defendant no. 2 to 3 were not found in possession and the possession was found with defendant no. 4 to 6 and they were asked to deal with the plaintiffs, as their landlords and pay rent to them together at-least @ Rs. 55,000/- per month. It is further averred that plaintiffs do not know as to whether, any document for creating tenancy with CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 5/61 defendant no. 4 to 6, in favour of defendant no. 1 has been written afresh or not.
10. It is further averred in the plaint that on portion ad- measuring 18 sq. yds shown red in the site plan, defendant no. 4 is storing marble for his business, under the name and style of M/s Super Marble. On the first floor of this portion, defendant no. 5 is storing his business goods, relating to his Design Point business at A-697, Raghubir Nagar, Near Gian Chhole Wala, New Delhi-110027 and on the partially built up second floor, defendant no. 6, is displaying sign boards.
11. It is further in the plaint that defendant no. 1 has received rent/charges for use and occupation, from two sets of defendants, no. 2 -3 and 4-6 to the extent of Rs. 9,35,000/- ( w.e.f. 10.04.2013 till 09.11.2014) from time to time belonging to the plaintiffs and is needed to be paid by defendant no. 1 to them.
12. It is further averred in the plaint that plaintiffs are seeking directions against defendant no.1, not to collect rent from defendant no. 4 to 6 w.e.f 10.11.2014 and also against defendant no. 4 to 6 about not paying charges for wrongful use and occupation to defendant no. 1 and for paying the same to the plaintiffs.
13. The plaintiff further seek directions against defendant no. 1 about her not handing over possession or portion shown red in the site plan, in the even to any of defendants ( out of defendant no. 4-6) vacating their/his portion to anybody else and also not handing over possession of entire portion shown red in the site CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 6/61 plan, of the suit property. The plaintiffs also seek actual physical possession of portion shown red in the site plan, from defendant no. 1 and defendant no. 4 to 6. The plaintiffs also claim interest @ 18 % p.a, on the amount already received by defendant no. 1 and the amount further received by defendant no. 1, during pendency of the suit and the amount of charges for wrongful use and occupation that become payable by order of the court.
14. It is further averred in the plaint that plaintiff also want defendant no. 1 to render accounts about her dealing with person coming in occupation of portion shown red in the site plan from time to time. It is further averred that the defendant no. 1, 4 to 6 have threatened the plaintiffs, to part with possession of said portion, to person other than plaintiffs and about their not invading upon the right of the plaintiffs in the property, therefore, by way of present suit, the plaintiffs also seeks permanent injunction against defendant no. 1 and 4 to 6, restraining them permanently, not to hand over possession of part or whole of portion 18 sq. yds of suit property.
CASE OF DEFENDANT NO. 1 AS PER HER WRITTEN STATEMENT
15. The defendant no. 1 has filed the written statement and has taken preliminary objection that suit filed by the plaintiffs pleading, defendant no. 2 to 6 is baseless, incorrect and not maintainable. It is contended by defendant no. 1 that only defendant no. 4 is in possession of the portion of the property as a tenant since 13.08.2013, while the whole of the property is in possession of the defendant no. 1 within his own rights.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 7/61
16. It is further contended by defendant no. 1 that the suit of the plaintiff is not maintainable as the same is without cause of action and liable to be rejected under order VII rule 11 CPC.
17. It is contended by the defendant no. 1 that in fact, the defendant no. 1 and her predecessor are in possession of the property in question since 1964 and their possession is continuous, uninterrupted and hostile to the whole world and they always represented themselves as the owners of the property in question and always treated the property as their own property where the defendant no. 1, her brother-in-law, her husband, father-in-law, had been carrying out the various activities. It is further contended that late Desh Raj, father-in-law of the defendant no. 1 obtained electricity and water connection in the property in question long back as owner thereof and even her brother-in-law Shri Vjay Mehta was running the business under the name & style of M/s Vijay Steel Works.
18. It is further contended that the defendant no. 1 and her predecessor were found in possession, even at the time of issuance of the Notification under Section 4 of the Land & Acquisition Act and thereafter, the plaintiffs who claims themselves to have purchase the property in 1997 and never raised any objection though it is submitted that the plaintiffs are neither the owners nor have any valid documents of titles. It is contended that the power of attorney, agreement to tell, on the basis of which they claimed to be the owners are un-registered without consideration and are forged and fabricated documents.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 8/61
19. It is further contended that the suit of the plaintiffs is also not maintainable as the plaintiffs has not filed any documents on record, on the basis of which the suit has been filed. Moreover, the judgment passed in reference petition under Section 30-31 Land Acquisition Act is not binding upon the defendant no. 1 in any manner whatsoever and the said judgment is merely decides the rights of the parties qua the compensation and not the title, hence, that judgment is of no consequence and on the basis of that judgment, the plaintiffs cannot claim possession of the suit property.
20. It is further contended that the rights, if any of the plaintiffs against the defendant no. 1 stood extinguished by Section 27 of the Indian Limitation Act, 1963. Admittedly (though denied) as per the plaintiffs they purchased the suit property by general power of attorney and agreement to sell which are unregistered, does not confirm any rights, title or interest upon the plaintiffs, yet for the sake of arguments if, it is assumed that any right have been created in their favour thus stood extinguished under Section 27 of the Indian Limitation Act. 1967, as according to the plaintiff, the defendant no. 1 is unauthorized occupant, hence the suit on the basis of the title could be filed only within 12 years and since the plaintiffs or their representative failed to file any suit, those rights stood extinguished and as such the suit against the defendant no. 1 or against the persons who were in possession through defendant no. 1 is not maintainable and liable to be dismissed.
21. It is further contended by defendant no. 1 that the suit of the plaintiff is not maintainable because the plaintiffs have not CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 9/61 properly valued the suit for the purpose of court fee and jurisdiction. It is further contended that the value of the suit property is Rs. 40,00,000/-, hence this court has no pecuniary jurisdiction to entertain and adjudicate the present suit.
22. On merit, all the contents of the plaint are denied by defendant no. 1 as wrong, false and incorrect. However, it is admitted by defendant no. 1 that defendant no. 1 is in actual physical possession of 18 sq. yds. built up to the second floor. It is further contented that, it is established that defendant no. 1 has remained in possession of the said portion for more than 12 years and it is the plaintiff who claim rights in the suit property as back as prior to even 2002 and never took any action for compensation. It is further contended that this 18 sq. yds of land otherwise remained un-acquired and no compensation was paid for this portion, it is for the other portion of land as total area of the land as held by the original allottee Shri Lajpat Rai Vij is concerned, it was 200 sq. yds., out of which the plaintiffs himself are claiming 70 sq. yds. of land which according to the plaintiffs remained un- acquired and as such the said judgment is not applicable to the instant case.
23. It is further contended that plaintiffs have not disclosed as to when they found the defendant no. 2 & 3 in possession of 18 sq. yds and it is submitted that it is the defendant no. 1 and her predecessors who remained in possession of whole of the 18 sq. yds. as mentioned throughout since 1964 and plaintiffs have falsely mentioned about making any enquiry from defendant no. 2 & 3 or that they took the portion on 10.04.2013. It is contended that plaintiffs have deliberately not mentioned as to when and in CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 10/61 what capacity the defendant no. 1 is in possession of the property and what capacity those have been let out, certainly defendant no.1 has let out the said portion as a owner/landlord and not as a representative of the plaintiff.
24. It is further submitted that defendant no. 2 & 3 have already vacated the property and handed over the possession to defendant no. 1. Only defendant no. 4 is in possession of the portion of the property as a tenant of defendant no. 1 and no other person is in possession thereof.
25. It is further submitted that no notice to the knowledge of the defendant no. 1 was ever issued to the defendant no. 2 & 3 and even if such notice was ever issued, it is of no consequences.
CASE OF DEFENDANT NO. 2 & 3 AS PER THEIR WRITTEN STATEMENT.
26. A joint written statement has been filed on behalf of defendant no. 2 & 3 in which they have taken preliminary objections that defendant no. 2 & 3 took the premises/property in question at a monthly rent of Rs. 55,000/-, exclusive of any other charges, for non-residential use, by a registered Rent Agreement, from defendant no.1.
27. On merit defendant no. 2 & 3 admitted that till such time they remained in possession of above-said portion of the property, plaintiffs/ S. Kanwaljeet Singh and Amar Deep Singh were in possession of adjoining portion of the property measuring 52 sq. yds. It is contended by defendant no. 2 & 3 that on receipt of CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 11/61 notice from plaintiffs, they vacated the premises which they had taken on rent from defendant no. 1.
28. Defendant no. 2 & 3 further contended that they have no knowledge, as to who from amongst defendant no. 1 and 4 to 6, remained in possession, and for how much period, after vacating the portion by them, shown red in the site plan. Defendant no. 2 & 3 further contended that till such time they remained in possession, they paid rent at the agreed rate to defendant no. 1 alongwith other charges for their period of occupation. It is further contended by defendant no. 2 & 3 that at the time of vacating the premises, they had paid to defendant no. 1, in all, rent to the extent of Rs. 6,60,000/-.
CASE OF DEFENDANT NO. 4, AS PER HIS WRITTEN STATMENT
29. Separate written statement has been filed on behalf of defendant no. 4 and he has submitted in the written statement that the defendant no. 4 is in possession of ground floor of property bearing no. B-10/6, Rajouri Garden, Raja Garden Chowk, New Delhi-110027 since August, 2013, on a monthly rent of Rs. 30,000/-. Defendant no. 4 further submitted that the rent stands paid till the month of February, 2015, thereafter he received the summons of the court and since then he stopped tendering the rent to defendant no. 1.
30. On merit, defendant no. 4 has denied the contents of the plaint of plaintiffs.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 12/61
31. Defendant no. 5 & 6 have not filed written statement in the present case.
32. Defendant no. 2 to 6 have been proceeded ex-parte vide order dated 16.10.2021.
33. From the pleadings of the parties, following issues have been framed vide order dated 23.08.2016:
1. Whether the defendant no. 1 is not bound by the judgment under section 35 of the Land and Acquisition Act passed by Sh. A.K. Sarpal, Ld. ADJ? OPD
2. Whether the suit of the plaintiff is barred under section 27 of the Limitation Act? OPD1
3. Whether the plaintiff has not properly valued the suit for the purpose of court fees and jurisdiction? OPD
4. Whether the plaintiff is having ownership right regarding the suit property? OPP
5. Whether the plaintiff is entitled for the recovery of the possession of the suit property as prayed for? OPP
6. Whether the plaintiff is entitled for recovery of arrears of the rent as prayed for? OPP
7. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for? OPP
8. Whether the plaintiff is entitled for rendition of accounts as prayed for? OPP
9. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
10. Relief CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 13/61 EVIDENCE ON BEHALF OF PLAINTIFFS
34. To prove his case, the plaintiffs have examined only one witness i.e. PW-1/ Sh. S. Kanwaljit Singh, one of the plaintiffs, who has tendered his evidence by way of affidavit Ex PW-1/A. In his affidavit, the PW-1 has reiterated and reaffirmed the averments made in the plaint and relied upon following documents:-
1. Ex PW-1/1: Site plan of the suit property.
2. Ex PW-1/2: Copy of judgment dated 05.08.2010, passed in reference no. LAC 154/09/02, passed by Sh.
Ashwani Sarpal, the then Ld. ADJ-05, West, Tis Hazari Courts, Delhi ( certified copy seen and returned).
3. PW-1/3: Copy of registered rent agreement executed between defendant no. 1 and defendant no. 2 & 3. (certified copy seen and returned).
35. Thereafter, PW-1 was partly cross-examined on behalf of ld. Counsel for the defendant no. 1 and his further cross- examination was deferred.
36. It is pertinent to mention that thereafter plaintiff moved two applications i.e. under order VII Rule 14 read with section 151 CPC and u/o 18 rule 17 read with section 151 CPC, which were allowed vide order dated 07.12.2021 and an additional evidence on behalf of PW-1 was filed and PW-1 was again examined on 12.12.2012.
37. PW-1 /Plaintiff has tendered his evidence by way of CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 14/61 additional affidavit Ex PW-1/B as per order dated 07.12.2021. In his additional affidavit, the plaintiff has relied upon following documents:-
i. Ex. PW1/5 (OSR): The copy of Sale Deed dated 10.06.1954.
ii. Ex. PW1/6 (OSR) (Colly): are the copies of GPA, Agreement to sell and Receipt, all dated 05.11.1997.
iii. Ex PW-1/7 (OSR) (Colly): are the copies of House Tax Receipts and letter dated 04.05.2016 issued by NDMC in favour of Kawaljeet Singh and Amarjeet Singh in respect of change of name of tax payer. However, in the affidavit inadvertently the word "etc" has been mentioned. It refers to letter for change of name of tax payer which permission has been granted vide order dated 07.12.2021.
38. In his cross examination, PW-1 deposed that for the first time, he visited the suit property in the end of 1998 and lastly in 2020. PW-1 further deposed that when he visited in the end of 1998, the disputed property was occupied by Satish Mehta. PW-1 further deposed that he does not know when Mr. Desh Raj died but he died before he purchased the suit property.
39. PW-1 further deposed that he does not possess the copy of letter of administration allegedly taken by wife of Mr. Desh Raj but he possess the power of attorney, in favour of Sh. Harinder Chadda. PW-1 in answer to a specific question replied that in the documents i.e. agreement to sell and GPA by virtue of which, he purchased the property, thee is no mention of occupation of suit property by Satish Kumar Mehta or any other person.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 15/61
40. PW-1 further deposed that he does not know if Desh Raj Mehta, predecessor-in-interest of defendant no. 1 was in possession of the suit property since 1964. PW-1 further deposed that he came to know in the year 1998-99 that the suit property is in possession of Satish Mehta. PW-1 further deposed that he does not know in what capacity Satish Mehta came into possession of the suit property. He also did not inquire either from Harinder Chadha or from Pushpa Devi as to how Sh. Satish Mehta is in possession of the suit property. He does not know whether he took physical possession of the suit property ever.
41. PW-1 in his further cross-examination admitted that plaintiffs never made any efforts to get the agreement to sell or general power of attorney registered in the office of Sub- Registrar. PW-1 denied the suggestion that at the time of execution of agreement to sell and general power of attorney in favour of the plaintiffs, it was known to him that possession of defendant no. 1 and her predecessor were adverse and hostile to Desh Raj and Pushpa Rani.
42. Vide separate statement of ld. Counsel for the plaintiffs, evidence on behalf of plaintiffs stands closed vide order dated 26.07.2023.
EVIDENCE ON BEHALF OF DEFNEDANT NO. 1.
43. In order to prove his case defendant no. 1 has examined Sh. Bhuvnesh Sethi, his Special Power of attorney holder as DW-
1. DW-1 tendered his evidence by way of affidavit Ex. DW-1/A CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 16/61 and relied upon the following documents:
i).Ex.DW1/1: Original special power of attorney dated 12.08.2023 executed in his favour.
ii).Ex.PW1/2 (Colly)(two in number): Electricity Bills in respect of property in question.
iii).Ex.PW1/3(Colly)(two in number): Water Bills in respect of property in question.
iv).Ex.PW1/4: The receipt dated 18.06.2010 in favour of Sh. Satish Kr. Mehta issued by MCD.
v).Ex.PW1/5:(Colly) (four in number): The income tax returns of M/s Vijay Steel Works.
44. During his cross-examination, DW-1 deposed that he knows everything about the dispute in this case being the son-in- law of defendant no.1. DW-1 further deposed that he got married in January 2003 and the dispute in this case arisen after 2003.
45. DW-1 further deposed that he has seen the suit property. DW-1 further deposed that place marked red in Mark A in the Site plan Ex. PW-1/1, is in their possession including ground floor and first floor. DW-1 further deposed that he does not know in whose possession the portion marked Mark B in the Site Plan Ex. PW-1/1. Thereafter D-1 again said that the said portion is shown in the Mark B, is first floor and it is in their possession. DW-1 further deposed that he does not know in whose possession the Mark C shown in green colour in Ex. PW-1/1. However, he voluntarily deposed that someone has opened a showroom of marble/tials in the said portion mark C. The total area of portion red in Mark A & B is about 200 sq ft . DW-1 voluntarily deposed that the area is 10x20 ft on the ground floor and 10x20 ft on the first floor. DW-1 further deposed that he CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 17/61 cannot say exactly if the above portion is 18 sq. yards. He does not know if the portion shown as green Mark C is about 52 sq. yards.
46. In further cross-examination, DW-1 deposed that the suit was filed in the year 2014 and in 2014, Sh. Satish Mehta, husband of defendant no. 1 was in possession of portion Mark A & B. DW-1 denied the suggestion that there were five tenants in the portion marked shown Red Mark A & B in Ex. PW-1/1.
47. DW-1 further deposed that Defendant no. 2 Sh. Vijesh Kathuraia came for partnership with Sh. Satish Mehta and they refused the same. Defendant no. 3 was the labour of defendant no. 2. DW-1 denied the suggestion that portion A & B shown in Ex. PW-1/1 was given on rent to defendant no. 2 & 3 by defendant no.1 vide registered deed on monthly rent of Rs. 55,000/-. He further denied the suggestion that in May 2014 defendant no. 2 & 3 left the said tenanted premises or that thereafter defendant no. 4, 5 & 6 were made tenant in the said premises marked A & B by D-1. DW-1 further denied the suggestion that D-4 used to give rent of Rs. 30,000/- to Sh. Kamla Mehta for ground floor however, DW-1 voluntarily deposed that Sh. Kuldeep Kohli, D-4 was partner with D-1. DW- 1 denied the suggestion that D-6 was a tenant on the first floor and he was running a marble store on that floor.
48. In further cross-examination DW-1 deposed that he does not know whether defendant no. 4 was in possession of the ground floor, red portion in November, 2014. He does not know whether Mr. Sumit Suri was in possession of first floor, red CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 18/61 portion in November, 2014. DW-1 denied the suggestion that Sh. Deepak Saini, defendant no. 6 was in possession of top floor partially built as shown in red colour in site plan Ex. PW-1/1. As on date this entire red portion is in possession of Smt. Kamla Mehta, defendant no. 1. In reply to a specific question he deposed that he does not remember whether in April, 2013, he vide registered rent agreement, let out the entire red portion shown in site plan Ex. PW-1/1 at a monthly rent of Rs. 55,000/-p.m. exclusive other expenses to defendant no. 2 & 3. DW-1 further deposed that he does not know whether Kamla Mehta was issuing rent receipts to Kuldeep Kohli, Sumit Suri and Deepak Saini.
49. DW-1 was confronted with the copy of receipt dated 16.01.2015 issued by Kamla Mehta signed at point A, to Sh. Kuldeep Kohli which is marked as Mark A/DW-1. However, DW-1 on seeing the same deposed that same being photocopy he cannot admit or deny the same. DW-1 denied the suggestion that defendant no. 1 in unauthorized occupation of red portion in Site plan whichever amount plaintiff has received from defendant no. 2 to 6 is required to pay the same to the plaintiff, in the manner demanded in the plaint. DW-1 further deposed that he does not know remember whether before filing the suit a legal notice was sent to defendant no. 1 and other defendants and no reply was sent by any of the defendants. DW-1 denied the suggestion that collectively rent of the suit property is not less than Rs. 1 lac or that the portion shown in red and green in site plan Ex. PW-1/1 belongs to plaintiffs and green portion is in possession of the plaintiffs at present.
50. DW-1 further deposed that he does not know whether Sh.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 19/61 Lajpat Rai Vij was the owner of entire 200 sq yards including red portion including portion in possession of defendant no. 1 and after his death it comes to the ownership of his wife Mrs Pushpa Vij or that thereafter Mrs Pushpa Vij rented out the entire 200 sq. yards to plaintiffs and thereafter sold the same to the plaintiff.
51. DW-1 denied the suggestion that 133 sq. yards was acquired by UOI and rest 70 sq. yards was given to plaintiffs. DW-1 further deposed that he does not know whether plaintiffs received compensation of the acquisition and Kamla Mehta was not given any compensation. DW-1 further deposed that he does not know whether the appeal filed by the UOI was contested by Smt. Sheela, mother-in-law of Kamla Mehta. DW-1 further deposed that he does not know whether that appeal was dismissed and plaintiffs were declared as owner of the 70 sq. yards including red portion shown in Site Plan Ex. PW-1/1, in possession of Kamla Mehta and green portion in possession of plaintiffs. DW-1 further deposed that he does not know whether the reference u/s 30-31 L.A. Act has been decided in favour of the plaintiffs.
52. Vide separate statement of DW-1, the evidence on behalf of defendant no.1 stands closed on 25.07.2024.
53. No evidence has been led on behalf of D2 to D6 and they proceeded ex-parte vide order dated 16.10.2021.
FINAL ARGUMENTS
54. I have heard the final arguments on behalf of plaintiff and defendant no. 1 and perused the case file and written submissions CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 20/61 filed on behalf of plaintiffs as well as defendant no. 1.
55. CONTENTIONS OF PLAINTIFFS
56. Ld counsel for the plaintiffs in his written submissions has submitted that a letter of administration was issued in favour of Smt. Pushpa Kumari vij by the foreign court, making her the absolute owner of the suit property. Thereafter Smt. Pushpa Kumari Vij let out the property in the year, 1990, to the plaintiffs, through her attorney Sh. Harinder Chadha. It is further submitted that area measuring 133 sq. yards of the property was acquired and now the suit property only remains around area of 70 sq. yards.
57. It is further averred in the written submissions that since the plaintiffs were not satisfied with the compensation awarded by the LAC, and filed reference reliance u/s 18 of the L.A. Act and UOI made the reference under section 30-31 L.A. Act. The reference under section 30-31 L.A. Act was finally decided by the court of Sh. Ashwani Sarpal, the then ld. ADJ-05 and in that reference IP No.1 are plaintiffs in the present suit, who claimed them as joint owners of the land in question and IP No. 2 to 4 contested in the capacity of tenants or owners) by adverse possession. It is further submitted that notices of the reference were sent to all the above said interested parties, who appeared to contest. IP No. 2 & 3 chose not to contest the reference and became ex-parte. The dispute then remained to be contested by IP No. 4, Smt. Sheela Rani, mother-in-law of defendant No. 1 in the suit, in whose steps defendant no. 1 is in possession of non- acquired area of 18 sq. yds out of 70 sq. yds and the remaining 52 CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 21/61 sq. yds non-acquired are under the possession of plaintiffs.
58. It is further submitted in the written submissions that the above reference under order 30 -31 of L.A. Act was decided by Sh. Ashwani Sarpal, the then ld. ADJ-05 vide judgment dated 05.08.2010 and held that IP No. 1 i.e. plaintiffs in this suit are entitled to grant compensation in equal proportions and the amount released in their favour. It is further submitted that the passing of the said judgment is in the knowledge of defendant no. 1 and has not been challenged by defendant no. 1.
59. In written submissions, the plaintiffs have stated about the status of possession qua each floor of the suit premises and the rent being collected by defendant n. 1 from the tenants and has sought damages and rendition of account regarding the said rent so collected by the defendant. no. 1.
60. It is further averred in the written submissions that the reference filed by the plaintiffs under section 18 of the L.A Act for enhancement of the compensation was decided by ld. Predecessor of this court vide judgment dated 19.09.2022.
61. It is further averred in the written submissions that the plea of limitation under section 27 of Limitation Act, raised by defendant no.1 is not applicable as no declaration by defendant no.1 has been sought.
62. It is further averred that defendant no. 1 herself, being of sound disposing mind did not come into the witness box for cross-examination despite being in Delhi at the relevant time. The CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 22/61 only evidence led by defendant no. 1 is that of Shri Bhuvnesh Sethi, stated to be a son-in-law of defendant no.1, who got married to defendant no.1's daughter in January 2003. Regarding non-appearance of defendant no. 1, this witness states that she is not well, no medical certificate was produced on record.
CONTENTIONS OF DEFENDANT NO. 163. In the written submissions filed on behalf of defendant no. 1, it is submitted that defendant no. 1 is in possession of the suit premises within her own right and the suit so filed is without any cause of action and is bad for mis-joinder of necessary and proper parties thus liable to be rejected.
64. It is further averred that defendant no. 1 and her predecessors are in possession of the property in question since 1964 and the possession is continues uninterrupted and hostile to the whole world and they always represented themselves as the owners of the property in question and always treated the suit property as their own property.
65. It is further averred in the written submissions that defendant no. 1 alongwith his family members had carried out various activities and father in law of the defendant no. 1 late Desh Raj obtained electricity and water connection in the property in question and even brother-in-law of defendant namely Mr. Vijay Mehta was running business under the name and style of M/s Vijay Steel Works.
66. It is further averred in the written submissions that the CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 23/61 defendant no. 1 and her family members/predecessor were found in the possession of the suit property even at the time of issuance of notification under Section 4 of Land & Acquisition Act and thereafter the plaintiff to claim to have purchased the suit property in the year 1997 never raised any objection. It is further averred in the written submissions that plaintiffs have nothing to do with the suit property and has claimed ownership on the basis of power of attorney, agreement to sell which are unregistered and are not admissible.
67. It is further averred in the written submissions that the judgment passed under Section 30-31 of L.A. Act is not binding upon the defendant no. 1 as the same merely decides the right of the parties for compensation and not the title, hence the same is of no consequences and the said judgment is not applicable to the instant case as the property in question was never acquired as per the plaintiff himself.
68. It is further averred that moreover, the right of the plaintiffs, if any, against the defendant no. 1 stood extinguished by Section 27 of the Indian Limitation Act.
69. It is further averred in the written statement that as per the plaintiffs, they purchased the suit property vide General Power of attorney, agreement to sell, which are unregistered and does not confer any right, title and interest, however without admitting even if it is assumed that any right have been created by virtue of the above said alleged documents, the same stood extinguished as suit on basis of title for recovery of possession could be filed only within 12 years.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 24/61
70. It is further averred in the written submission that the plaintiffs have not valued the same as market value which is more than 40 lacs and the suit is silent to the aspect as to in what capacity plaintiff is claiming possession form the defendant no. 1 and as to the status of defendant no. 1 whether he is tenant, unauthorized occupant or a licensee and as such suit is not maintainable.
71. It is further averred in the written submissions that during the cross-examination of DW-1, ld. Counsel for the plaintiffs himself has given suggestion stating that it is wrong to suggest that the portion A and B shown in Ex. PW-1/1 was given on rent to the defendant no. 2 & 3 by the defendant no. 1 vide registered Deed. Further it is wrong to suggest that thereafter the defendant no. 4 to 6 were made tenant in the said premises Mark A and Mark B. Further it is wrong to suggest that defendant no. 4 used to give rent of Rs. 30,000/- per month to Smt. Kamla Mehta.
72. It is further averred in the written submissions that the judgment passed under section 35 of the L.A. Act does not in any manner states as to out of the total 200 sq. yds. which specific portion has been acquired and even the plaintiff has failed to bring on record the identification of property acquitted out of total 200 sq. yds.
73. It is further averred that plaintiff has not filed any document upon the basis of which the said judgment is passed and in said judgment in no manner relates to the suit property in question neither any evidence has been led qua the same. Therefore this CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 25/61 judgment is not binding upon defendant no. 1, on the contrary, if it is believe that the judgment so passed is of the property in question though denied, then the plaintiff has no right/locus left with him to initiate the present suit against the defendant no. 1 qua the premises in question as once the property is acquired, the plaintiff would have no title or whatsoever, though the same is denied.
74. It is further averred in the written submissions that the suit of the plaintiff is barred under section 27 of the Limitation Act and has relied upon the following judgments:
1. Rajpal Singh & Ors. Vs. M/s Indraprastha Builder Pvt. Ltd.passed by Justice Valmiki Mehta Delhi High Court RFA No. 770/17.
2. Bandhu Das & Anr. Vs Uttam Charan Pattanaik, passed by Justice Pradip Mohanty Orrisa High Court.
3. Shakeel Ahmed Vs Syed Akhlaq Hussain Passed by justice Vikram Nath, Supreme court of India Civil appeal No. 1598/2023.
My ISSUE-WISE FINDINGS:
75. FINDINGS ON ISSUE NO. 1 & 4.
1. Whether the defendant no. 1 is not bound by the judgment under section 35 of the Land and Acquisition Act passed by Sh. A.K. Sarpal, Ld. ADJ? OPD & CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 26/61
4. Whether the plaintiff is having ownership right regarding the suit property? OPP
76. Issue no. 1 & 4 are taken together being interconnected and having mutual bearing upon each other. Burden of proof of issue no. 1 is upon defendant no. 1 and burden of proof of issue no. 4 is upon plaintiff.
77. In order to prove issue no. 1, plaintiffs have examined only one witness i.e. PW-1/S. Kawaljit Singh, one of the plaintiffs.
78. In order to prove issue no. 4, the defendant no. 1 has also examined only one witness i.e. Sh. Bhuvnesh Sethi, SPA holder of defendant no. 1.
79. PW-1/plaintiff has deposed by way of affidavit in evidence that plaintiffs are the absolute owners of property bearing no. B10/6, Rajouri Garden, Raja Garden Chow, Ring Road, New Delhi ad-measuring 70 sq. yards shown in red and green colour in the site plan Ex. PW-1/1.
80. PW-1 has further deposed that Sh. Ashwani Sarpal, the then ld. ADJ-05, West, Tis Hazari, vide his judgment dated 05.08.2010, in reference petition under section 30-31 of L.A. Act, bearing 154/09/02, titled UOI Vs Kawaljeet Singh & Ors, has held about the ownership of plaintiffs over the property ad- measuring 70 sq. yards shown in Green and Red.
81. PW-1 has further deposed that passing of the said judgment is within the knowledge of defendant no. 1 and the said CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 27/61 judgment remains un-challenged till date.
82. During cross-examination, PW-1 has deposed that as per his understanding in order to establish ownership of immovable property there should shall be power of attorney and sale deed. PW-1 voluntarily deposed that he has placed on record the power of attorney in his favour.
83. PW-1 has tendered copy of sale deed dated 10.06.1954, Ex. PW-1/5. I have perused the said sale deed, this sale deed has been executed by DLF Housing and Construction Ltd., a joint stock company in favour of Sh. Lajpat Rai Vij. The sale deed relates to property admeasuring 200 sq. yds. bearing plot no. 6, block no. B-10, Rajouri Garden, situated at Village Basai Darapur, Delhi. The plaintiff has also collectively exhibited copies of GPA, Agreement to sell and receipt dated 5.11.1997 as Ex. PW-1/6 (Colly). One GPA, executed by Pushpa Kumari Vij, is of dated 4.07.1980 and this GPA is also collectively exhibited as Ex. PW-1/6 (Colly) on 12.12.2022. By way of this GPA, late Smt. Pushpa Kumari Vij has appointed Sh. Krishan Kumar Dhir and Harinder Chadha as her attornies to deal with the property in question. As per this GPA, Smt. Pushpa Kumar Vij is the personal representative of Sh. Lajpat Rai Vij who died on 15.04.1977 and for whose estate, a letters of administration was granted to Smt. Pushpa Kumari Vij, on 09.09.1977.
84. As per GPA dated 5.11.1997 Ex. PW-1/6 (Colly) executed Sh. Harinder Chadha, in favour of plaintiffs, the plaintiffs have been authorised and empowered jointly and severely to control, manage and deal with the above said property ad-measuring 200 CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 28/61 Sq. Yds. An agreement to sell Ex. PW-1/6 and receipt, both dated 5.11.1997 in respect of above said property ad-measuring 200 Sq. Yds. have also been executed by Sh. Harinder Chadha, in favour of the plaintiffs.
85. I have perused the judgment dated 5.08.2010, Ex. PW-1/2, passed by Sh. Ashwani Sarpal, the then Ld. ADJ-05, West District, Tis Hazari, in a reference petition forwarded under section 30-31 of the L.A Act. PW-1 has tendered photocopy of the certified copy of the abovesaid judgement in his evidence and has also brought certified copy in the court.
86. During examination of PW-1, Ld counsel for D-1 has objected the exhibition of copy of said judgment as Ex PW-1/2, on the ground of mode of proof. PW-1 has brought the certified copy in the court, while tendering the photocopy of certified copy the said judgment in the court and the said certified copy was seen and return to PW-1, at that time. Since, PW-1 has brought the certified copy of abovesaid judgment, the objection of the defendant no. 1 stands overruled. Moreover, the defendant no. 1 has also not challenged the genuineness of copy of judgement Ex PW-1/2.
87. In the above said judgment, ld. ADJ, has held as follows:
" In her claim IP No. 4 claimed ownership of her husband by way of adverse possession but she had not sought any declaration of her title in court by filing suit ever. In her claim she specifically averred regarding obtaining ownership through adverse possession but her son while appearing in witness box tried to establish right over the property through purchase by his father or by taking the same on rent etc. IP No. 4 tried to take benefit while replying upon some rent receipt and house tax receipts in the name of Sh. R.M. M. Dhir, who is a real brother of Sh. Krishan CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 29/61 Kumar Dhir, one of attorney of Pushpa Rani Vij. It has come on record that rent receipt relied upon by IP No. 4 is not correct because on the proposed date of execution of the document Sh. R.M. Dhir had already expired. Otherwise also it has not been proved by IP no. 4 what was the concern of Sh. R.M. Dir with the property in question. IP No. 4 or her husband never filed any application for mutation of the property in their name nor paid any house tax nor tried to find out in whose favour title documents exists whereas IP No. 1 is able to establish through long chain of the documents and sequence to make him owner of the property. IP No. 4 disputed the possession of IP No. 1 in the property in question but her version is also contradictory from her reply filed in High Court in writ petition in which possession of IP No. 1 was admitted.
IP no. 4 also took the plea that the documents filed on record by IP No. 1 are forged and fabricated but she is not able to establish now these documents are forged. She has also not examined any expert witness in this regard. The rent receipt mark XI relied upon by IP No. 4 appears to be forged documents as in the claim petition IP NO. 4 never claimed any tenancy qua the acquired property. The electricity bills and water bills etc. produced by IP No. 4 are pertaining to the year 1989 onwards and no evidence has been brought on record which shows that IP No. 4 or her husband cam in possession of the property in 1972. The contradictory stand taken about the year of coming into possession whether in the year 1960, 1964, 1969 or 1972 further demolish the case of IP No. 4. Various house tax receipts placed on record by IP No. 1 point out that property belonged to Sh. Lajpat Rai Vij and he had authorised Sh. K.K. Dhir to deposit house tax in his name with the MCD and his letter to MCD in this regard is also proved on record. Mere existence of some telephone and electricity bills in favour of IP No. 4 does not confer any title upon IP No. 4. If she is claiming tenancy rights in the property as per statement of IP4/W2 then she can not be permitted to take the contradictory pleas of becoming owner by way of adverse possession as both these pleas cannot go side by side.
The another plea taken by IP No. 4 that Smt. Pushpa Kumari Vij had expired in 1989 so transfer of title document by her attorney in favour of IP No. 1 in the year 1996 are invalid but this plea is also not acceptable as correct as IP No. 1 has brought on record passport of Smt. Pushpa Kumari Vij Ex.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 30/61 IP1/W1/27 which shows that she even visited India in the year 2000. Thus title documents in favour of IP No. 1 regarding transfer of ownership by Smt. Pushpa Kumari Vij through her attorney IP1/W4 when she was alive cannot be held as invalid.
IP4/W2 alleged that he was running a PCO in the property and was doing iron work but no such proof has bee n brought on record in this regard which create doubt about possession of IP No. 4 in acquired property.
After considering the above facts, I am of the view that it is fully established on the record that IP No. 1 was the actual owner of the acquired property in question and had purchased it must prior to the date of notification under section 4 of Land Acquisition act whereas IP No. 4 had not right, title or interest in this property. The property was purchased by two persons Sh. Kanwaljeet Singh and Sh. Amardeep Singh jointly described as IP No. 1 so they are only entitled to the whole of the compensation amount. IP s no. 2 and 3 who had become exparte in this case are not entitled to anything. Claim filed by IP No. 4 is thus rejected. Accordingly, this issue is decided.
88. In the present case, the defendant no. 1 has contended that the plaintiffs are neither owners nor have any valid documents of title. It is further contended by defendant no. 1 that the Power of Attorney, Agreement to sell, on the basis of which plaintiffs claim themselves as owners are unregistered without consideration and are forged and fabricated documents.
89. It is further contended on behalf of defendant no. 1 that the suit of the plaintiffs is also not maintainable as the plaintiffs has not filed any documents on record, on the basis of which the suit has been filed. The judgment passed in reference petition under Section 30-31 Land Acquisition Act is not binding upon the defendant no. 1, in any manner whatsoever and the said judgment is merely decides the rights of the parties qua the compensation and not the title, hence, that judgment is of no consequence and on the basis of that judgment, the plaintiffs cannot claim CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 31/61 possession of the suit property.
90. The defendant no. 1 has not led any evidence to prove that the Power of attorney and agreement to sell executed in favour of plaintiffs are forged and fabricated documents.
91. Section 11 of CPC is relevant for the purpose of deciding the above said issue no. 1, as to whether defendant no. 1 is bound by the above said judgment passed by Sh. A.K. Sarpal, the then ld. ADJ, Tis Hazari.
92. Section 11 reads as under;
Res judicata:- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 32/61 respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .
[Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]
93. In a case titled as Sheodan Singh vs Smt. Daryao Kunwar, decided on 14 January, 1966, 1966 AIR 1332, the Hon'ble Supreme Court discussed the essential conditions for the application of the principle of res judicata under section 11 CPC.
"A plain reading of s. 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely-
(i)The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
(ii)The former suit must have been a suit between the same parties or between, parties under whom they or any of them claim;
(iii)The parties must have litigated under the same title in the former suit;
(iv)The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
(v)The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Further Explanation I shows that it is not the date on which the suit is filed that matters but the date on which the CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 33/61 suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier."
94. In a case titled Satyadhyan Ghosal And Others vs Sm. Deorajin Debi And Another, decided on 20 April, 1960, 1960 AIR, 941, the Hon'ble Supreme Court of India has discussed the principles of Res Judicata and which are as follows:
"The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or on a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of Civil Procedure; but even where s. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings".
95. In a case tilted as Daryao And Others vs The State Of U. P. And Others, decided on 27 March, 1961, 1961 AIR, 1457, the Hon'ble Supreme Court of India has held as follows: -
But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in s. 11 of the Code of Civil Procedure has no doubt, some technical aspects, for instance the CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 34/61 rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts' of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Art. 32.
In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William de Grey, (afterwards Lord Walsingham) in the leading Duchess of King8ton's case (1). Said Sir William de Grey, (afterwards Lord Walsingham) "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose". As has been observed by Halsbury, "the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation" (2 ). Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause"
"Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the, interest of the State that there should be an end to s litigation interest republican ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause-nemo debet bis vexari pro eadem causa" (1). In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel.
"Estoppel rests on equity able principles and res judicata rests on maxims which are taken from the Roman Law" (2). Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Art. 32 cannot be CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 35/61 accepted.
The same question can be considered from another point of view. If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution itself. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observ- ed "subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences"(3). Similar is the statement of the law in Corpus Juris: "the doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to an action between the same parties for the same cause in the same court or in another court, whether the latter has concurrent or other jurisdiction. This rule is subject to the Limitation that the judgment in the former action must have been rendered by a court or tribunal of competent jurisdiction" (1). "It is, however' essential that there should have been a judicial determination of rights in controversy with a final decision thereon" In other words, an original petition for a writ under Art. 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under Art. 226. There can be little doubt that the jurisdiction of this Court to entertain applications under Art. 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under Art. 226. Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Art,. 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 36/61 judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained.
96 In a case titled as Sulochana Amma vs Narayanan Nair, decided on 24 September, 1993, 1994 SCC (2) 14, the Hon'ble Supreme Court of India has held as follows regarding binding effect of the judgments passed by courts having limited or special jurisdiction like Land Acquisition Court.
"5. Section 11 of CPC embodies the rule of conclusiveness as evidence or bars as a plea as issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final. In a later suit between the same parties or their privies in a court competent to try Such subsequent suit in which the issue has been directly and substantially raised and decided in the judgment and decree in the former suit would operate as res judicata. Section 11 does not create any right or interest in the property, but merely operates as a bar to try the same issue once over. In other words, it aims to prevent multiplicity of the proceedings and accords finality to an issue, which directly and substantially had arisen in the former Suit between the same parties or their privies, been decided and became final, so that parties are not vexed twice over; vexatious litigation would be put to an end and the valuable time of the court is saved. It is based on public policy, as well as private justice. They would apply, therefore, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the tribunals other than the civil courts.
6. The words "competent to try such subsequent suit"
have been interpreted that it must refer to the pecuniary jurisdiction of the earlier court to try the subsequent suit at the time when the first suit was brought. Mere competency to try the issue raised in the subsequent suit is not enough. A decree in a previous suit will not operate as res judicata, unless the Judge by whom it was made, had jurisdiction to try and decide, not that particular suit, but also the subsequent suit itself in which the issue is subsequently raised. This interpretation had CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 37/61 consistently been adopted before the introduction of Explanation VIII. So the earlier decree of the court of a limited pecuniary jurisdiction would not operate as res judicata when the same issue is directly and substantially in issue in a later suit filed in a court of unlimited jurisdiction. It had, therefore, become necessary to bring in the statute Explanation VIII. To cull out its scope and ambit, it must be read along with Section 11, to find the purpose it seeks to serve.
The Law Commission in its report recommended to remove the anomaly and bring within its fold the conclusiveness of an issue in a former suit decided by any court, be it either of limited pecuniary jurisdiction or of special jurisdiction, like insolvency court, probate court, land acquisition court, Rent Controller, Revenue Tribunal, etc. No doubt main body of Section 11 was not amended, yet the expression "the court of limited jurisdiction" in Explanation VIII is wide enough to include a court whose jurisdiction is subject to pecuniary limitation and other cognate expressions analogous thereto. Therefore, Section 11 is to be read in combination and harmony with Explanation VIII. The result that would flow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such court of limited or special jurisdiction was not a competent court to try the subsequent suit.
The issue must directly and substantially arise in a later suit between the same parties or their privies. This question is no longer res integra. In Rai Ba rang Bahadur Singh v. Rai Beni Madho Rakesh Singh the facts were that under U.P. Land Revenue Act of 1901, the consolidation and partition of the lands were effected and became final. Thereafter, one of the landowners claimed title in a civil suit for a declaration that he was the superior landholder. In view of Section 233(k) of the Land Revenue Act, on a divergence of opinion among Oudh Chief Court and Allahabad High Court, the judicial committee held that if a question of title affecting the partition, which might have been raised in the partition proceedings, was not raised and the partition was completed, Section 233(k) debars parties to the partition from raising the question of title subsequently in a civil court. The revenue court is a court of special jurisdiction. In Daryao v. State of U.P. this Court held that tile doctrine of res judicata is in the interest of public at large and a finality should be attached to the binding decisions pronounced by courts of competent jurisdiction, and CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 38/61 it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. In Gulam Abbas v. State of U.P. this Court held that the principle of res judicata though technical in nature, is founded on considerations of public policy. The technical aspect, for instance, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or to grant reliefs sought in the subsequent litigation, should be immaterial when the general doctrine of res judicata is to be invoked. Explanation VIII, inserted by the Amending Act of 1976, was Intended to serve this purpose and to clarify this position. It, therefore, has to be held that the decree of the District Munsif, though of limited pecuniary jurisdiction, would operate as res judicata in the subsequent suit between the same parties.
7. The Calcutta High Court took a very narrow view limiting the scope of Explanation VIII to the decisions of the courts of special jurisdiction like probate, insolvency, land acquisition courts, Rent Controller, Land Revenue Tribunal etc. The Kerala, Orissa and Madras High Courts have taken a broader view, which view now stands approved by this Court in the aforesaid decision. Take an instance, if the scope of Explanation VIII is confined to the order and decree of an insolvency court, the scope of enlarging Explanation VIII would be defeated and the decree of civil courts of limited pecuniary jurisdiction shall stand excluded, while that of the former would be attracted. Such an anomalous situation must be avoided. The tribunal whose decisions were not operating as res judicata, would be brought within the ambit of Section 11, while the decree of the civil court of limited pecuniary Jurisdiction which is accustomed to the doctrine of res judicata, shall stand excluded from its operation. Take for instance, now the decree of a Rent Controller shall operate as res judicata, but a decree of a District Munsif (Civil Judge) Junior Division, according to the stand of the appellant, will not operate as res judicata, though the same officer might have decided both the cases. To keep the litigation unending, successive suits could be filed in the first instance in the court of limited pecuniary jurisdiction and later in a court of higher jurisdiction, and the same issue shall be subject of trial again, leading to conflict of decisions. It is obvious from the objects underlying Explanation VIII, that by operation of the non-obstante clause finality is attached to a decree of civil court of limited pecuniary jurisdiction also to put an end to the vexatious litigation and to accord conclusiveness to the issue tried by a competent court, when the same issue is directly and substantially in issue in a later suit between the same parties or their privies CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 39/61 by operation of Section 11. The parties are precluded from raising once over the same issue for trial.
10. Accordingly, we hold that the view of the Calcutta High Court is not good law and contra view is upheld. The judgments and decrees under Exs. A-2 to A-5 operate as res judicata against the appellant, who derives his title from K. The appeal is accordingly dismissed. The parties are directed to bear their own costs in this appeal.
97. In the above said reference petition filed under section 30- 31 of Land Acquisition Act, 1894, Smt Sheela Rani, wife of late Sh. Desh Raj and mother-in-law of defendant no.1, was party as IP no. 4 and she has contested the above said petition. His son Sh. Satish Kumar was examined as IP4/W2 in the above petition.
98. IP No. 4 had also taken the plea, in the abovesaid reference petition that the documents filed by IP No. 1, who are plaintiffs in this case, are forged and fabricated but the court held that IP No. 4 is not able to establish how those documents are forged and fabricated.
99. The GPA, Agreement to sell, dated 5.11.1997, through which plaintiffs purchased the suit property was in question in the reference petition. In the said reference, ld. ADJ, has observed as follows:
" Smt. Pushpa Kumari vij in the writ petition in the High Court filed by IP No. 1 admitted the claim of IP No. 1 regarding transfer of ownership vide Ex. IP1/W1/25. She also filed an application before LAC Ex. IP1/W1/26 for payment of compensation amount to IP No. 1 by admitting the transfer of her property. This fact establish that the property originally belonging to Sh. Lajpat Rai Vij ultimately transferred in the name of IP No. 1. Mere fact that the Genral Power of Attorney and agreement to sell etc. executed CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 40/61 in favour of IP No. 1 by Smt. Pushpa Rani Vij through her attorney are itself unregistered is not sufficient to reject his claim when IP No. 4 miserably failed to establish any of her own right or interest in the acquired property".
100. All the contentions raised by defendant no. 1, in this suit, has already been raised in the reference petition by IP no. 4 and has been rejected by the court. Defendant no. 1 is claiming interest in the suit property by way of adverse possession through her husband, her brother-in-law and her father-in-law, namely, Sh. Desh Raj and other family members including IP No. 4.
101. In the above said judgment Ex PW-1/2, passed by Shri A.K. Sarpal, the then Ld. ADJ, the issue regarding ownership of the plaintiffs over property bearing no. B-10/6, situated at Rajouri Garden, Raja Garden Chowk, Ring Road, New Delhi, on the basis of above said GPAs, agreement to sell dated 05.11.1997, executed in favour of plaintiffs, were directly and substantially in issue. The above said court was also competent to decide the said issue between the parties in the reference petition filed under section 30
-31 of L.A. Act. The above said judgment has been given by the then ld. ADJ, Sh. S.K. Sarpal, on merit, after appreciating evidence as well as after hearing arguments on behalf of the parties. All the conditions mentioned in section 11 CPC are fulfilled in the present case.
102. In view of explanation VIII of Section 11 and as per law settled by the Hon'ble Supreme Court of India in the case titled Sulochana Amma Vs Narayanan Nair (Supra), it is no res integra that the judgement of Land Acquisition, court is binding upon the parties, in a subsequent case held before Civil Court.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 41/61
103. The plaintiff are claiming ownership over property in question, on the basis of GPA agreement to sell and receipt dated 05.11.1997, Ex PW-1/6 (colly) and these documents relate to entire property ad measuring 200 sq. yards. Vide judgement Ex PW-1/2, Ld ADJ has already declared the plaintiffs, owner of property bearing no. bearing no. B-10/6, situated at Rajouri Garden, Raja Garden Chowk, Ring Road, New Delhi, on the basis of abovesaid GPA, agreement to sell, receipt Ex PW-1/6 (colly), though in the above-said reference petition, only 130 sq. yards property out of entire property ad measuring 200 sq. yards was invovled but it is matter of record that the documents Ex PW-1/6 (colly) relate to entire property of 200 square yards. The issue as to whether the plaintiffs can become owners of property, on the basis of documents Ex PW-1/6 (colly) has already been decided by the Ld. LAC, Court vide judgement Ex PW-1/2 and the documents Ex PW-1/6 (colly) have already been declared valid for transferring ownership of abovesaid property to the plaintiff , so, now the defendant no. 1 again cannot challenge the documents Ex PW-1/6 (colly).
104. In view of the foregoing discussion, it is held that defendant no. 1 is bound by the Judgment Ex PW-1/2 passed by Sh. A.K. Sarpal, Ld ADJ. The defendant no. 1 can not again challenge the ownership of plaintiffs, over the suit property, due to passing of earlier judgment dated 5.08.2010, Ex. PW-1/2, by Sh. A.K. Sarpal, Ld ADJ, so, the defendant no. 1 is barred from challenging the ownership of plaintiffs, over the suit property, as per section 11 of the CPC. Accordingly, issue no. 1 & 4 are decided in favour of plaintiffs and against the defendant no. 1.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 42/61 105 FINDINGS ON ISSUE NO. 2 & 5
2. Whether the suit of the plaintiff is barred under section 27 of the Limitation Act? OPD1.
5. Whether the plaintiff is entitled for the recovery of the possession of the suit property as prayed for? OPP
106. As per case of the plaintiffs, the property bearing no. B- 10/6, situated at Rajouri Garden, Raja Garden Chowk, Ring Road, New Delhi was ad-measuring 200 sq. yds and out of this property 130 sq. yds has been acquired by the government by way of land acquisition proceedings and now the plaintiffs are owners of remaining land i.e. 70 sq. yds.
107. Plaintiffs have alleged in their plaint that they are in possession of portion of property bearing no. B-10/6, situated at Rajouri Garden, Raja Garden Chowk, Ring Road, New Delhi shown in green colour in the site plan ad-measuring 52 sq. yds. up to upper level and remaining land of 18 sq. yds is in the possession of defendant no. 1 and defendant no. 4 to 6.
108. Plaintiffs have filed the present suit for directing the defendant no. 1 and defendant no. 4 to 6 to hand over physical possession of remaining portion of 18 square yards out of entire land 200 sq yards.
109. As per the case of the plaintiffs, the suit property has been given on rent by defendant no. 1 to defendant no. 4 to defendant CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 43/61 no. 6. Defendant no. 1 has admitted in the written statement, regarding giving portion of suit property at ground floor on rent to defendant no. 4 but she has denied the fact of giving suit property on rent to defendant no. 5 and defendant no. 6. The plaintiff has not led any evidence to prove that the suit property was given on rent by defendant no. 1 to defendant no. 5 and defendant no. 6.
110. During cross examination, DW-1 has deposed that as on date, this entire rent portion, which is suit property, is in possession of Smt Kamla Mehta/defendant no. 1. The plaintiffs have not disputed this fact, during the cross examination of DW-
1. The portion of ground floor of suit property was in possession of Defendant no. 4 on behalf of defendant no. 1 but now, the entire suit property is in physical possession of defendant no. 1.
111. Plaintiffs have not mentioned in the plaint regarding having possession over the property in question, at any point of time. PW-1 has also deposed in the court that he does not know whether he took physical possession of the suit property ever. Plaintiffs have also not alleged that the possession of defendant no. 1 over the suit property is permissible or with the consent of plaintiffs or with the consent of earlier land owners. PW-1 has also deposed that he does not know in what capacity Satish Mehta came into possession of the suit property.
112. PW-1 further deposed that he did not inquire either from Harinder Chadha or from Smt. Pushpa Devi, as to how Sh. Satish Mehta is in possession of the suit property. Defendant no. 1 is the wife of Sh. Satish Mehta. The above said facts prove that the plaintiffs are not claiming that the possession of defendant no. 1, CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 44/61 over the suit property is permissible or with their consent or with the consent to previous land owners.
113. During his cross-examination, PW-1 deposed that when he visited in the end of 1998, the disputed property was occupied by Sh. Satish Mehta. He further deposed that he is in the business of automobiles and he was conducting business adjoining to the suit property since 1999 to 2004-2005. He further deposed that during said period, the suit property was in possession of Sh. Satish Mehta S/o Sheela Rani.
114. During cross examination, PW-1 deposed that he does not know if Sh. Desh Raj Mehta, Predecessor in interest of defendant no. 1 was in possession of the suit property since 1964. The PW-1 has not denied that Late Sh. Desh Raj Mehta, Predecessor in interest of defendant no. 1, was in possession of suit property since 1964 and this is the specific case of defendant no. 1, since filing of written statement. In view of abovesaid testimony, it is proved that Sh. Desh Raj Mehta, predecessor in interest of defendant no. 1, was in possession of suit property since 1964 and thereafter, his son Sh. Satish Mehta was in possession of suit property in 1998 and thereafter, defendant no. 1 is in possession of suit property.
115. PW-1 further deposed that he does not know whether he ever took physical possession of the suit property. He further depose that he does not know if he has made any police report for initiating any action against Sh. Satish Mehta, after purchase of suit property except filing the present suit.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 45/61
116. From the foregoing testimony of PW-1 as well as averments of the plaint, it is proved that plaintiffs have never remained in possession of the property in question. Plaintiffs have not filed any document regarding initiating any action against Sh. Satish Mehta for possessing the property in question. Therefore, it is also proved that the plaintiffs have never challenged the possession of defendants over the property in question before filing the present suit.
117. In the present case, plaintiffs are claiming recovery of possession of the property in question, on the basis of title.
118. Article 65 of the Limitation Act is relevant in the present case. Article 65 of the Limitation Act is reproduced as under:
For possession of immovable Twelve years When the possession property or any interest of the defendant therein based on title. Becomes adverse to the plaintiff.
Explanation.-- For the purposes of this article--
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession.
119. Section 27 of the Limitation Act, 1963 reads as follows:
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 46/61 "27. Extinguishment of right to property- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
120. Section 3 of the Limitation Act reads as under:
3. Bar of Limitation- (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
121. As per Article 65 of the Limitation Act, the suit for recovery of possession of immovable property, on the basis of the title can be filed within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.
122. In case, the possession of the defendant is not adverse to the plaintiff, then the plaintiff has the right to file the suit for recovery of possession of immovable property at any time irrespective of expiry of 12 years from the date of possession of the immovable property by the defendant.
123. In a case tilted Murti Dussadhin and Others v. Surajdeo Singh and Others, AIR 1965 SC 875, it is held as under.
" A suit for possession based on title without any allegations of dispossession was governed by Art. 144 (Art.65). In that case, the suit was for declaration of title and the plaintiff asserted that he was in possession. But an alternative relief was claimed that he should be put in possession if it is found that he should be deemed to have been dispossessed by reason of earlier proceedings under Cr.P.C.
Defendant did not deny it but claimed he had acquired occupancy rights. Neither party alleged dispossession or discontinuance of possession of the plaintiff. Held that Art.144 (Art.65) applied and that the case must proceed on the defendants' plea. ( Under the present Act, all suits for possession based on title will be government by Art.65) CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 47/61
124 The Hon'ble Supreme Court of India, in a case titled Nazir Mohamed J Kamala and Ors. 2020, SCC, Online SC 676, has observed as follows:
"51. A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation. He must show that he had possession before the alleged trespasser got possession.
52. The maxim "possession follows title" is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.
53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.
54. The period of limitation for suits for recovery of immovable property is prescribed in Part V of the Schedule to the Limitation Act, 1963, and in particular Articles 64 and 65 thereof set out hereinbelow for convenience:-
"PART V.-- Suits Relating to Immovable Property.. Description of suit Period of Time from which period Limitation begins to run ..........
64. For possession of immovable property Twelve years. The date of based on previous possession and not on title, dispossession.
when the plaintiff while in possession of the property has been dispossessed.
65. For possession of immovable property or Twelve years. When the possession of any interest therein based on title; the defendant becomes Explanation.- For the purposes of this article - adverse to the plaintiff.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 48/61
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession
125. The Hon'ble Supreme court of India in a case titled RAVINDER KAUR GREWAL & ORS. VERSUS MANJIT KAUR & ORS AIR 2019 SUPREME COURT 3827 has held as under;
32. The operation of the statute of limitation in giving a title 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 others to eject him. Perry v. Clissold (1907) AC 73 has been referred to in Nair Service Society Ltd. v. K.C. Alexander (supra) in which it has been observed that it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the original owner, and if the original owner does not come forward and assert his title by the process of law within the period prescribed under the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. In Ram Daan (Dead) through LRs. v. Urban Improvement Trust, (2014) 8 SCC 902, this Court has observed thus:
"11. It is settled position of law laid down by the Privy Council in Perry v. Clissold 1907 AC 73 (PC) (AC p.
79) "It cannot be disputed that a person in possession of land in the assumed character of owner and CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 49/61 exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title." The above statement was quoted with the approval by this Court in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165.
Their Lordships at para 22 emphatically stated: (AIR p. 1175) "22. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold 1907 AC 73 (PC).""
45. Article 65 of the Act is extracted hereunder:
Description of suit Period of limitation Time from which period begins to run
65. For possession of Twelve years. When the possession immovable property or of the defendant any interest therein becomes adverse to based on title.
the plaintiff.
Explanation.-- For the purposes of this article--
(a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession.
46. The conclusion reached by the High Court is based on an inferential process because of the language used in the III rd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column No.3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 50/61 permissible. It does not follow from the language used in the statute. The large number of decisions of this Court and various other decisions of Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury Laws based on various decisions indicate that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) and of the Punjab & Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary.
48. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.
49. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.
50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 51/61 a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by reentry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.
55. We are not inclined to accept the submission that there is no conferral of right by adverse possession. Section 27 of Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that. For a person to sue for possession would indicate that right has accrued to him in presenti to obtain it, not in futuro. Any property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property.
56. Possession is the root of title and is right like the property. As ownership is also of different kinds of viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable ownership. Limited ownership or limited right to property may be enjoyed by a holder. What can be prescribable against is limited to the rights of the holder. Possession confers enforceable right under Section 6 of the Specific Relief Act. It has to be looked into what kind of possession is enjoyed viz. de facto i.e., actual, 'de jure possession', constructive possession, concurrent possession over a small portion of the property. In case the owner is in symbolic possession, there is no dispossession, there can be formal, exclusive or joint possession. The joint possessor/coowner possession is not presumed to be adverse. Personal law also plays a role to construe nature of possession.
57. The adverse possession requires all the three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonym CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 52/61 with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.
58. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on reentry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.
59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 53/61 126 In a case titled Mohammad Yusuf and Ors Vs Raj Kumar & Ors, 2021 SCC CIV 145. The Hon'ble Supreme court of India has held as follows:
"10. The judgment of Gurdwara Sahib v. Gram Panchayat Village Sirthala (2014) 1 SCC 669 has now been expressly overruled by a three-Judge Bench judgment in Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC
729. This Court held in the above case in para 62 that once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing Printedperson/owner".
"11. In para 62, the following has been laid down :
(Ravinder Kaur Grewal case (2019) 8SCC 729) "62.
We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/ owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession.
Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit."
127 In the present case defendant no. 1 has alleged in her written statement that the defendant no. 1 and her predecessor are CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 54/61 in possession of the property in question since 1964 and their possession is continuous, uninterrupted and hostile to the whole world and they have always represented themselves as the owners of the property in question and have always treated the property in question as their own property, where the defendant no. 1, her brother in law, her husband, her father-in-law had been carrying out the various activities.
128. Defendant no. 1 is the daughter-in-law of late Smt. Sheela Rani and she is claiming adverse possession of the suit property through her husband, mother-in-law and father-in-law late Sh. Desh Raj w.e.f the year 1964. Defendant no. 1 has deposed that the suit property always remain in possession of late Sh. Desh Raj and after his death, it has been remained in possession of other family members.
129 In the present case the defendant no. 1 is allegeding ownership over the property in question due to her adverse possession. Ld. Counsel for the defendant no. 1 has argued that the present suit has been filed by the plaintiffs after expiry of limitation period i.e. 12 years from the adverse possession of defendant no. 1. He further argued that as per section 27 of the Limitation Act, the ownership of the plaintiffs over the property in question has been extinguished due to non-filing of present suit within limitation period.
130. Ld. Counsel for the defendant no. 1 has argued that the plaintiffs have knowledge about the adverse possession of the defendant no. 1 and her family members since 1998. He further argued that in the reference petition filed under section 30-31 of CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 55/61 L.A. Act, IP No. 4, who was wife of late Sh. Desh Raj, was a party and she filed objections before the LAC, West claiming herself owner of entire property bearing no. B-10/6, situated at Rajouri Garden, Raja Garden Chowk, Ring Road, New Delhi and the reference was sent to the court by the LAC, WEST on 15.02.2002 and in the said reference, claims were filed by IP No. 4 and evidence was also led on her behalf and she had taken the plea of adverse possession by denying the title of the plaintiffs over the entire property. So, knowledge of the adverse possession of the defendant no. 1 and her family members over the suit property, by the plaintiffs can also be presumed before 2002 when acquisition proceedings of the property, bearing no. B-10/6, situated at Rajouri Garden, Raja Garden Chowk, Ring Road, New Delhi were pending before collector.
131 He further argued that the present case has been filed on 1.12.2014, whereas the above said reference was sent to the court on 15.02.2002, so the suit of the plaintiffs is clearly beyond the period of 12 years from the date of adverse possession of the defendant no. 1 over the suit property.
132 Ld counsel for plaintiffs has argued that the defendant no. 1 cannot raise the plea of application of Section 27 of Limitation Act, in the present case as the defendant no. 1 has not sought declaration of title, in the present case. It is settled law that the plea of adverse possession can be used by defendant as a shield as well as a sword. So, it is not necessary for the defendant to seek declaration of title in the present case, he can also defend his possession, on the basis of his adverse possession, over the suit property. Therefore, the abovesaid contention of the plaintiffs is CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 56/61 not valid and stands rejected.
133. The plaintiffs have relied upon judgment passed in reference petition bearing no. LAC 154/09/02 titled UOI Vs Kanwaljit Singh & Ors. and the copy of said judgment is Ex. PW-1/2. The plaintiff has filed on record only Judgment Ex PW- 1/2 but has not filed pleadings, memo of parties and evidence recorded before Land Acquisition Court. As per facts mentioned in Judgment Ex PW-1/2, IP No. 1 are Sh. Kanwaljit Singh and Sh.Amardeep Singh, who are plaintiffs in the present case. IP No. 4 is Smt. Sheela Rani who is mother-in-law of defendant no.
1.
134. In view of the foregoing discussion, it is proved that the defendant no. 1 through her family members has been in possession of the suit property since 1964 and plaintiffs have the knowledge about the possession of husband of defendant no. 1, since, 1998, as PW-1 visited the suit property in the end of year 1998 and found Sh. Satish Mehta, husband of defendant no. 1, in possession of the same.
135. It is also proved that the plaintiffs have never come into the possession of the property in question. It is also proved that plaintiffs have not initiated any action the defendant no. 1 for taking the possession of the property in question except filing the present suit on 01.12.2014. It is also proved that the possession of defendant no. 1 and her family members over the property in question has been adverse to the plaintiffs, continued, uninterrupted, peaceful and within the knowledge of the plaintiffs from the year 1998, till the filing of the present suit.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 57/61
136. Moreover, the IP No. 4, who is mother in law of defendant no. 1, has disputed the ownership of the plaintiffs over the acquired land before land acquisition collector and reference was forwarded to the court by the LAC, West on 15.02.2002. In the reference petition, the mother in law of defendant no. 1 had claimed adverse possession over the acquired property. It is not probable that the IP no. 4 will claim ownership only upon acquired property and not upon other property in her possession i.e. suit property. From the evidence, discussed above, it is proved that the defendant no. 1 and her family members are claiming adverse possession over the suit property since beginning of their possession, over the suit property. The knowledge of the plaintiffs about the claim of adverse possession by defendant no. 1 and her family members, over the suit property, can at least be considered from starting of land acquisition proceedings that started after issuance of notification dated 05.04.1999, under Section 4 of the Land Acquisition Act.
137. The reference under Section 30-31 of Land Acquisition Act had been sent to the LAC Court of Sh. A.K. Sarpal, Ld ADJ, on 15.02.2002 for deciding the title dispute between plaintiffs and IP no. 1 to 4. The present suit has been filed on 01.12.2014. So, the present suit has been filed after expiry of 12 years from 15.02.2002. The present suit is also beyond limitation, if the knowledge of the plaintiffs of the adverse possession of the defendant no. 1 and her family members, over the suit property, be considered from 15.02.2002.
138. From the foregoing discussion, it is proved that the CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 58/61 plaintiffs have not filed the present suit, within 12 years from the date of adverse possession of the defendant no. 1 and her family members, over the suit property. As per above-said judgments and as per Section 27 of the Limitation Act, after the expiry of 12 years, from the date of adverse possession,of defendant no. 1 and her family members, over the property in question, the ownership rights of the plaintiffs, over the suit property, have been extinguished and now, the plaintiffs have no right to take possession of the suit property, from defendant no. 1 and her family members. Accordingly, issue no. 2 and 5 are decided against the plaintiffs and in favour of defendant no. 1.
139 FINDINGS ON ISSUE NO. 3Issue no. 3: Whether the plaintiff has not properly valued the suit for the purpose of court fee and jurisdiction? OPD.
140. Ld. Counsel for defendant no. 1 has argued that plaintiffs have not valued the suit property as per market value which is more than 40 lacs. Ld. Counsel for defendant no. 1 has further argued that plaintiffs have not filed adequate court fees with their plaint.
141. No evidence has been led by the defendant no. 1 to prove the value of the suit property is more than 40 lacs and even, no value of the suit property has been mentioned in the affidavit of DW-1. No cross examination of PW-1, in this respect, has been conducted on behalf of D-1 and no question, regarding the value of the suit property, has been put to PW-1. The burden of proof to prove issue no. 3 is upon defendant no. 1 but he has failed to CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 59/61 prove the same. Accordingly, issue no. 3 is decided in favour of the plaintiffs.
142. Findings on Issue no. 6 & 8 Issue no: 6:- Whether the plaintiff is entitled for recovery of arrears of rent as prayed for? OPP.
& Issue no. 8: whether the plaintiff is entitled for rendition of account as prayed for? OPP.
143. Since, issue no. 2 has been decided against the plaintiffs and in faovur of defendant no. 1, accordingly, issue no. 6 & 8 are also decided against the plaintiffs and in favour of D-1.
144. Findings on issue no. 7 & 9.
Issue no. 7: Whether the plaintiff is entitled for relief of mandatory injunction as prayed for? OPP.
& Issue no. 9: Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP.
145. Since, issue no. 2 has been decided against the plaintiffs and in favour of defendant no. 1, accordingly, issue no. 7 & 9 are also decided against the plaintiffs and in favour of D-1.
RELIEF CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 60/61
146. In view of the abovesaid observations and findings, especially, on issue no. 2, the suit of the plaintiffs stands dismissed. Parties shall bear their own costs.
147. In the present case, two applications, one filed under order 39 rule 1 & 2 CPC and the second filed under order 39 rule 10 CPC, have already been pending for disposal, being not pressed by the parties, during trial. In view of the dismissal of the suit of the plaintiffs, the abovesaid applications are also stand dismissed.
148. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
Digitally signed
SHIV by SHIV KUMAR
KUMAR Date: 2025.02.03
17:25:22 +0530
Announced in open Court (SHIV KUMAR)
today on 03.02.2025. DJ-02, Court no. 127,
West Distt.THC Delhi.
CS No. 610405-2016 S. Kawaljit Singh & Ors Vs Kamla Mehta & Ors. 61/61