Delhi High Court
Sh. Luice M. Jacob vs Union Of India & Ors. on 19 July, 2016
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 159/2016
% 19th July, 2016
SH. LUICE M. JACOB ....Appellant
Through: Mr. V.M. Issar, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No.22554/2016 (condonation of delay in re-filing the appeal)
1. For the reasons stated in the application, the delay in re-filing the appeal is condoned. The application is disposed of.
RSA No.159/20162. This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugning the concurrent Judgments of the courts below; of the Trial Court dated 8.5.2014 and the First Appellate Court dated 14.12.2015; by which the suit filed by the appellant for declaration and perpetual injunction seeking ownership rights of the Armenian Cemetery RSA No.159/2016 Page 1 of 5 (Christian Compound), Kishan Ganj, Delhi has been dismissed.
Appellant/plaintiff claimed ownership of the suit property by way of adverse possession. Appellant/plaintiff also sought perpetual injunction to restrain the defendants from dispossession of the plaintiff and his family members.
Contesting respondents are respondent nos. 1 to 4/defendants and who are the Union of India and its officers from the Department of Archaeology/Director General of Archaeology. Respondent no.5 is the Armenian Association.
3. This Court can entertain a second appeal under Section 100 CPC only if a substantial question of law arises. Both the courts below have found that appellant/plaintiff has only filed documents to show possession but there has not been proved a claim and assertion of hostile title, and therefore, the claim of the ownership of the plaintiff by adverse possession has been declined by the courts below. This finding is a finding of fact on appreciation of evidence. On this aspect the first appellate court has made the following relevant observations in paras 8 and 13 to 17 which read as under:
"8. In the case of State of Haryana Vs. Mukesh Kumar & Ors. (supra), the Apex Court inter alia held that:
"A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner."
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13. The copy Ex PW-1/8, the Khasra Girdwari of year 1966-67 bearing writings in Urdu language is not accompanied by its true translated copy in Hindi or English language with respect to name of land owner and address, name of cultivator and address, area and kind of land; for want of which the same is inadmissible and stands not proved. Khasra Girdawri Ex. PW-1/9 of RSA No.159/2016 Page 2 of 5 years 1976-77; 1977-78; 1978-79, purportedly issued by Patwari, Civil Station bears mention on top of it to be pertaining to "ग्राम-दिल्ली, तहसील व ज़िला-दिल्ली" Also therein, in column of name of owner it is mentioned as "सरकार िौलतमिार". Patwari/scribe of Ex PW-1/9 has not been brought into the witness box to testify/relate the property described in Ex.PW-1/9 with the suit property as the description of the property, therein, nowhere leads to proving of it being related to suit property.
14. In Ex PW-1/10, Khasra Girdawari of year 1988-89; 1989-90 bearing on top of it to be pertaining to "Village Delhi", describing in the column of owner as "सरकार िौलतमिार" and in the column of cultivator as "मक़बू़िा M. जेकब पत्र ु जोन जेकब"; with respect to description in the cloumn of class of land as "क़ब्रिस्तान व आबािी" Even, Patwari/scrie of Ex PW-1/10 has not been brought into the witness boxy to testify/relate Ex.PW-1/10 with the suit property. Even otherwise, both Ex. PW-1/9 and Ex PW-1/10 bear in their respective columns the name of the owner to be the Government.
15. It is not the case of the appellant/plaintiff that he or his ancestors/predecessors in interest in any way gained possession in part or whole of the suit property as a trespasser. Own admitted case of appellant/plaintiff is that the land was belonging to the Government and allotted to respondent no-5 by Government, wherein, ancestors of appellant/plaintiff were permitted to move and stay there i.e. as licensee.
16. Evidence on record is shorn of any fact proved on record that plaintiff was ever in hostile possession of suit property to the owner/Government at any point of time to assert title by adverse possession. Appellant/plaintiff failed to prove animus possidendi to discharge his onus on the issue no-1 with respect to entitlement for decree of declaration prayed for. Even otherwise, in view of law laid and afore elicited in the case of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala (supra), plaintiff cannot be permitted to use plea of adverse possession to obtain the decree of declaration in the fact of the matter. Accordingly, in the fact of the matter, reliance of appellant/plaintiff upon case of Bondar Singh & Ors. Vs. Nihal Singh & Ors. (supra) is misplaced as it embodies facts and circumstances entirely different and distinguishable, also not akin to the facts and circumstance of the case in hand. In the said case of Bondar Singh (supra) the defendants had alleged that plaintiffs were trespassers.
17. Evidence led on record by appellant/plaintiff/PW-1 merely contains bald assertion of some officials of defendants having visited the site on 01.04.2005 having brought some building material for carrying out the repairs of Chapel, who allegedly threatened to dispossess appellant/plaintiff, has family members and relations from the property in dispute. Officials of which of the arraigned defendants and how many they were in number and to which family members(s) of appellant/plaintiff they so threatened i.e. names RSA No.159/2016 Page 3 of 5 and particulars of such relative are the relevant material facts which find no mention in the pleadings or testimony of PW-1 including affidavit Ex P-1. For want of such evidence on record, the appellant/plaintiff cannot claim having a prima facie case in his favour for grant of injunction claimed."
(underlining added)
4. A reference to the aforesaid paras shows as under:-
(i) Even if the documents which are relied upon by the plaintiff are taken as proved yet they only show possession and not assertion of hostile possession by claiming title to the property. I may note that the documents which were proved by the appellant/plaintiff in the suit are as under:-
a) Photograph showing stone of Armenian Cemetery: Ex.PW1/1 at the suit property
b) Birth certificate of plaintiff's brother : Ex.PW1/2
c) Death certificate of plaintiff's grandfather : Ex.PW1/3
d) Certified copy of plaint dated 07.04.1967 : Ex.PW1/4
e) Certified copy of judgment dated 29.04.1968 : Ex.PW 1/5
f) True copy of order dated 07.01.1967 : Ex.PW1/6
g) Site plan of the suit property : Ex.PW1/7
h) Certified copy of jamabandi : Ex.PW1/8
i) Certified copy of two khasra girdawari : Ex.PW1/9 &Ex.PW1/10
(ii) In paras 13 and 14 of the judgment of the first appellate court there is clear cut reference and finding as per Ex.PW1/9 and Ex.PW1/10 that the owner of the property is mentioned as "sarkar daulatmadar" ie the Government of India. Once in the documents filed by the appellant/plaintiff the Union of India is shown to be the owner, such documents in fact cannot be taken as an assertion of plaintiff's ownership/title of the suit property. RSA No.159/2016 Page 4 of 5
(iii) Admittedly, the suit property was allotted by the Union of India to the Armenian Association (respondent no.5) and the appellant/plaintiff was only permitted to stay there ie as a licensee. Appellant/plaintiff therefore had no case of ownership by adverse possession.
(iv) Ownership by adverse possession is looked at with disfavour by the courts and a person claiming adverse possession has no equities in his favour because he is seeking to defeat the rights of the true owner.
5. In view of the above, I do not find that there is any perversity or gross illegality in the judgments of the courts below and hence no substantial question of law arises under Section 100 CPC for this second appeal to be entertained.
6. Dismissed.
JULY 19, 2016 VALMIKI J. MEHTA, J
godara
RSA No.159/2016 Page 5 of 5