Delhi District Court
Pradeep Kumar Kapoor vs Sh. Bharat Singh on 9 August, 2018
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL DISTRICT
JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
CS No. 48725/2014
In re :-
Pradeep Kumar Kapoor
S/o Sh. Prem Kumar Kapoor
R/o Quarter No. 847, Sector-II,
Sadiq Nagar, New Delhi
..........Plaintiff
VERSUS
1. Sh. Bharat Singh
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur, Delhi
2. Sh. Govind Singh
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur, Delhi
3. Sh. Sunil Saxena
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur, Delhi
4. Sh. Yogesh Kumar Gupta
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur, Delhi
5. Sh. Bijender Singh
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur, Delhi
Through his legal heirs:
a) Smt. Lakshmi Devi
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur, Delhi
CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 1 of 32
b) Sh. Mukesh Choudhary
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur,
Delhi
c) Sh. Shankar Choudhary
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur,
Delhi
d) Sh. Pawan Choudhary
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur,
Delhi
6. Smt. Anita
W/o Sh. Bharat Singh
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur,
Delhi
7. Smt. Meena
W/o Sh. Govind Singh
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur,
Delhi
8. Smt. Arti Saxena
W/o Sunil Saxena
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur,
Delhi
9. Mrs. Neelam Singhal
W/o Sh. Yogesh Gupta
12/7 (Old No. 55)
Saket Block, Gali No. 2
Mandawli Fazalpur,
Delhi ...........Defendants
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Date of institution of present suit : 06.11.2001
Date of receiving in this court : 24.12.2016
Date of hearing arguments : 02.07.2018
Date of Judgment : 09.08.2018
SUIT FOR POSSESSION, INJUNCTION, ACCOUNT AND DAMAGES
JUDGMENT
This judgment shall dispose of the suit filed by the plaintiff for possession, injunction, account and damages.
Plaintiff's case
1. Briefly stated the case of the plaintiff is that he is owner of house property bearing municipal number 12/7 (old No. 55) situated in Gali No. 2, Saket Block, Mandavali Fazalpur, Delhi, admeasuring about 213 sq. yards (hereinafter referred to as "suit property") and bounded with other's property in east, Gali in west, other's property in north and other's property in south. Plaintiff has purchased the same from its previous owners and bhumidar S/Sh. Jagbir Singh, Lakhi Chand and Hari Chand vide a duly registered sale deed dated 09.12.1998 registered in the office of Sub-Registrar, Sub-division No. VIII on the same day. The owners of the property had executed a power of attorney in favour of Sh. Raj Kumar Sekhari @ Kumar Sekhari and he had inducted the plaintiff into possession of the suit property on 14.04.1986. Ever since such induction plaintiff has been in actual and physical possession of the suit property. Thereafter, plaintiff constructed boundary wall around this property and put a door in the boundary wall opening in the street and the same was under his lock and key.
2. Plaintiff had to go out of Delhi frequently in connection with his business. He had put his property under his lock and key and used to visit the property almost regularly to oversee his possession and safeguard his interest. CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 3 of 32 On 25.11.1989 plaintiff received an anonymous call informing him about mischief in relation to his property. He immediately went to his property and found his lock put on the main gate as having been tempered. He lodged a report with the police on 29.11.1989, however, the police did not take any action against the miscreants. It is further stated that one Vijay Singh filed a false suit impleading the SHO of local police station as a defendant. On learning of that suit plaintiff moved an application under Order 1 Rule 10 CPC for being impleaded as a party to that suit, however, the said application was turned down by the learned Sub Judge. Against the said order, plaintiff filed C.R. No. 910/90 before Hon'ble High Court of Delhi which was allowed vide orders dated 09.12.1991. Thereafter, plaintiff was impleaded as a defendant to the suit filed by the said Vijay Singh, however, the plaintiff in the said suit got his suit dismissed. It is pertinent to mention here that the said Vijay Singh had nothing to do with the suit property and he filed the said suit in collusion with local police only to grab plaintiff's property. Though this move failed but these persons still persisted with their design. Thereafter plaintiff filed suit against said Vijay Singh, Lal Singh, Savitri and Vinod Kumar, however, due to technical reason, he withdrew the said suit.
3. Plaintiff thereafter finds that defendants are in possession of his property and are occupying various parts of the same. They have trespassed into plaintiff's property and are illegally occupying the same. The defendants have no right, title or justification to be in possession of the same or any part thereof. None of them has been inducted in possession of any part of the same by the plaintiff. They are liable to be removed from the same. The plaintiff has time and again requested the defendants to leave the premises, remove themselves therefrom and handover its vacant, peaceful and unobstructed possession to the plaintiff but they have not done so; hence this suit. The defendants are occupying and enjoying plaintiff's property without any right, title or justification, hence, each of the defendants is liable to pay damages and CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 4 of 32 they are jointly and severally liable to pay damages at the rate of at least Rs.4,000/- per month.
Case of defendants No. 1 and 24. Defendants No. 1 and 2 filed common written statement raising preliminary objection that the plaintiff has filed the present suit with malafide motive and intention in order to harass unnecessarily to grab the property of the replying defendants, hence the suit is not maintainable and is liable to be dismissed with costs. Plaintiff has not approached the court with clean hands and suppressed material facts. The suit filed by the plaintiff against Vijay Singh, Lal Singh and others was not withdrawn on technical grounds, however, the said suit was dismissed on merits on 18.09.1991. After dismissal of the said suit plaintiff had filed an application for withdrawal of the said suit but the same was also dismissed on the ground of non-prosecution. Since plaintiff tried to mislead the Court suit of the plaintiff is liable to be dismissed on this ground alone. The site plan filed by the plaintiff after the direction of the Court is incomplete, baseless and infructuous. The suit of the plaintiff is time barred under law of limitation.
5. Defendants No. 1 and 2 are enjoying the said property in the capacity of owners, therefore, replying defendants along with other occupiers have become the owner by way of adverse possession in respect of their respective portions. Replying defendants have purchased the property in question from the previous owners who were in occupation of the said portion and as there was no stay from any court, therefore, the replying defendants have purchased their portion in the property in question without any hesitation. The suit property is not properly valued for the purpose of court fee and jurisdiction. The plaintiff has no legal right, title or interest in the property in question and therefore, plaintiff has no legal right to file the plaintiff suit.
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6. It has been further submitted that plaintiff is not aware about the facts that who is in possession of the different portions of the property in question and the plaintiff is further not aware regarding the extent of the construction carried out by the occupiers in the suit property. Plaintiff is not further aware that when the defendants had occupied their respective portions in the suit property. Plaintiff has made the amendment in the array of the suit after filing the present suit which clearly shows that the plaintiff has been filing the present suit on the basis of false facts. It appears that plaintiff is not clear about the whereabouts of the suit property. Suit of the plaintiff is not maintainable under the principle of non-joinder and mis-joinder of the necessary parties. The suit is liable to be rejected under Order 7 Rule 11 CPC. The replying defendants along with the other defendants are in possession of their respective portions of the property in question and as they have constructed the house according to their choice and all the persons have been living/occupying the respective portions of the property in the capacity of owner and are enjoying the same without any interference. On merits, defendants denied the averments made by the plaintiff in the plaint. It has been mentioned that defendant No. 1 and 2 had purchased respective portion i.e. different part of the suit property under their possession in the name of their respective wife from Smt . Savitri Devi.
Case of defendant No. 37. Defendant No. 3 filed written statement raising preliminary objection that suit of the plaintiff is bad for the non-joinder of the essential and necessary parties. It is settled law that in a suit for possession against a trespasser, all the persons residing in the suit premises are essential parties. It is submitted that Smt. Aarti Saxena (defendant No.8) w/o Sh. Sunil Saxena (the defendant No. 3) has purchased property out of khasra No. 656 measuring 25 sq. yards along with its structure i.e. one room fitted with water connection situated in the abadi of Saket Block Mandawali Fazalpur, Shahdara, Delhi from its previous owner Sh. Gainda Ram S/o Sh. Bishmber Dayal in the sum CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 6 of 32 of Rs.60,000/- and after that the answering defendant has been residing along with family members i.e. Smt. Aarti Saxena, wife of the answering defendant and daughter Yagya Saxena. The wife of the answering defendant has every right, title and interest over the said property being the owner, therefore the suit of the plaintiff is liable to be dismissed with heavy costs.
8. The plaintiff has filed deficient court fee. The plaintiff has deliberately put court fee unreasonable, false and capricious. The suit of the plaintiff is liable to be returned or dismissed under Order 7 Rule 10 and 11 CPC. The suit of the plaintiff barred under Order 2 Rule 2 of CPC. It is further submitted that suit is false, fabricated and concocted and the plaintiff has neither been the owner nor in possession of the suit property and the land in which suit property is situated has already been vested to Gram Sabha and the plaintiff has no right, title or interest over the suit property and has no locus standi to file present suit for possession and damages against the answering defendant. Site plan filed by the plaintiff is vague and no such plot is in existence in the area of Saket Block. The suit of the plaintiff is not maintainable because the documents filed by the plaintiff is insufficiently stamped. It is further submitted that the plaintiff has intentionally, deliberately and knowingly concealed the material fact that the suit No. 473/91 was not withdrawn by the plaintiff but in fact the same was dismissed on merits. No cause of action has arose at any point of time against the defendant and in favour of the plaintiff.
9. The suit of the plaintiff is time barred under Limitation Act. Plaintiff has not taken any action since 25.11.1989 till 29.04.2002 against the answering defendant after more than twelve years. It is the plaintiff who made party the answering defendant only on 24.04.2002 in the present suit. The answering defendant has been in continuous, uninterrupted and undisputed possession of the house measuring 25 sq.yards and has made construction and renovation time to time of his own cost and the plaintiff never objected while CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 7 of 32 making construction over the property in which he along with his family member have been residing and answering defendant never received any notice from the plaintiff claiming title over the suit property. The plaintiff released the joint tortfeasors namely Vijay Singh, Lal Singh, Savitri, Vinod Kumar, Manoj Kumar Gupta unconditionally and without any agreement and covenant and there was no settlement between the above named joint tortfeasors. On merits, defendant denied the averments made in the plaint.
Case of defendant No. 410. Defendant No. 4 filed written statement. He also deposed on the same lines as stated by the defendant No. 3 in his written statement. It has been submitted that Smt. Neelam Singhal (defendant No.9) W/o Sh. Yogesh Kumar Singhal has purchased property out of khasra No. 656 measuring 51 sq.yards along with its structure i.e. one room fitted with hand pump situated in the abadi of Saket Block Mandawali Fazalpur, Shahdara, Delhi from its previous owner Smt. Savitri Devi Tiwari w/o Sh. Sudhir Kumar Tiwari in the sum of Rs.55,000/- and thereafter answering defendant has been residing along with his family members i.e. Smt. Neelam Singhal (wife), Pallavi Singhal (daughter) and Pulkit Singhal (son). The wife of the answering defendant has every right, title and interest over the said property being owner. Further the plaintiff has not taken any action since 25.11.1989 till 08.05.2002.
Case of defendant No. 511. Defendant No. 5 filed written statement. He also deposed on the same lines as stated by the defendant No. 3 and 4 in their written statement. It has been submitted that answering defendant his brother Sh. Dharambir Singh and two other cousin brothers namely Sh. Udaivir Singh S/o Sh. Rati Ram and Sh. Rajvir Singh S/o Sh. Saudan Singh have purchased property out of khasra No. 656 measuring 40 sq.yards along with its temporary structure i.e. two rooms and a kitchen fitted with hand pump situated in the abadi of Saket Block Mandawali Fazalpur, Shahdara, Delhi from its previous owner Sh. CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 8 of 32 Subhash Chander S/o Sh. Ram Lubhaya in the sum of Rs. 40,000/- and thereafter answering defendant has been residing along with his family members Smt. Laxmi, Sh. Deep Chand (father), Mukesh, Shankar and Pawan (sons). The brothers above named along with answering defendant have every right, title and interest over the said property being the owner. Further plaintiff has not taken any action since 25.11.1989 till 29.04.2002.
Case of defendants No. 6 and 712. Defendant No. 6 and 7 filed common written statement raising preliminary objection that the plaintiff has filed the present suit with malafide motive and intention in order to harass unnecessarily the property of the replying defendants hence the suit is not maintainable and is liable to be dismissed with costs. The plaintiff has suppressed the material facts from the Hon'ble Court that the suit No. 473/91 was not withdrawn by the plaintiff but in fact the same was dismissed on merits vide order dated 18.09.1991. The site plan filed by the plaintiff is incorrect. The suit of the plaintiff is hopelessly time barred. As per the allegations of the plaintiff is not in possession since 25.11.1989 and the plaintiff has not taken any action since 25.11.1989.
13. It has been further submitted that the replying defendant and their predecessors are/were in continuous and uninterrupted possession of the suit property for the last more than 20 years without any interference from any corner and as the replying defendant are enjoying the said property in the capacity of owners, therefore, the replying defendants along with other occupiers have become the owners of the property in question by way of adverse possession in respect of their respective portions. The replying defendants have purchased the property in question from the previous owners who were in occupation of the said portion and there was no stay from any court, therefore, the replying defendants have purchased their respective portions from the previous owners without any hesitation and the previous owners have handed over the actual and physical possession of their respective CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 9 of 32 portions to the replying defendants at the spot and the previous documents showing the title of ownership of the property in question were also handed over to the replying defendants. The plaintiff never visited the suit property before filing the present suit.
14. It has been further submitted that the suit of the plaintiff is not maintainable in the present form. The plaintiff has alleged in the plaint that he has purchased the property in question on 09.12.1998 vide registered sale deed. The plaintiff was inducted in the possession of the property in question on 14.04.1986 and further alleged that he came to know on 25.11.1989 that the property in question was locked and he found that his lock was tempered at the main gate and he had lodged the report on 29.11.1989. Thereafter, he has allegedly filed a suit in 1991 and the same was dismissed. The plaintiff was not in possession since 1989, therefore, he knew it very well that some construction was going on in the property in question and some person has occupied the property in question but he has not taken any action. It has been further submitted that the suit is not properly valued for the purpose of court fee and jurisdiction. The plaintiff has no locus standi to file the present suit against the replying defendants. The boundaries of the property shown in previous site plan and in the present site plan are also contradictory. The suit of the plaintiff is not maintainable under the principle of non-joinder and mis- joinder of the necessary party. The suit is liable to be rejected under Order 7 rule 11 CPC. He further deposed on the same lines as submitted by other defendants.
Case of defendant No. 815. Defendant No. 8 filed written statement which is almost on the same lines as that of other defendants. She further deposed that the suit is false, fabricated and concocted and the plaintiff has never been the owner nor in possession of the suit property and the land in which suit property is situated has already been vested to Gram Sabha and the plaintiff has no right, CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 10 of 32 title or interest over the suit property and has no locus standi to file the present suit for possession and damages against the answering defendant. The answering defendant is the owner and in possession of the property measuring 25 sq. yards and she has no concern with the other defendants and their properties, hence, the suit cannot be entertained together, therefore, the suit of the plaintiff is liable to be dismissed with heavy costs.
Case of defendant No. 916. Defendant No. 9 filed written statement which is almost on the same lines as that of other defendants. It has been submitted that the answering defendant has been in continuous, uninterrupted and undisputed possession of the house measuring 51 sq. yards since the day of purchase the property i.e. since 07.06.1991 from Smt. Savitri Devi and started residing therein along with her family members and has made construction and renovation time to time of her own cost and the plaintiff never objected to while making construction over the property in which she along with family members have been residing and answering defendant never received any notice from the plaintiff claiming title over the property of the answering defendant. The answering defendant has been regularly and openly enjoying the property being the owner of the same having all rights, title and interest over the property from the last more than twelve years. On merits, she denied the averments made in the plaint.
ISSUES:
17. From the pleadings of the parties following issues were framed vide order dated 02.11.2007 which are as under:
1. Whether the plaintiff is entitled to the suit property? OPP
2. Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC? OPD
3. Whether the suit of the plaintiff is barred under Section 6 of the Specific Relief Act? OPD CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 11 of 32
4. Whether the suit of the plaintiff is barred by Limitation? OPD
5. Whether the plaintiff is entitled to the claim of possession and the relief claimed? OPP
6. Relief.
18. Vide Order dt 28.05.2007 upon application of the plaintiff thereby pressing for framing of four additional issues, issues were recast as under:-
1. Whether the plaintiff is entitled to the suit property? OPP
2. Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC? OPD
3. Whether the suit of the plaintiff is barred under Section 6 of the Specific Relief Act? OPD
4. Whether the suit of the plaintiff is barred by Limitation?
OPD
5. Whether the plaintiff is entitled to recover damages, if so, in what amount and from which of the defendants?
6. Whether plaintiff is entitled to decree for amounts?OPP
7. Whether plaintiff is entitled to injunction as prayed? OPP
8. Whether the suit of the plaintiff is barred under Order 2 Rule 3 CPC.
9. Relief Evidence
19. In support of his case, plaintiff examined himself as PW-1 and tendered his affidavit in examination-in-chief as PA relying upon Sale Deed Ex. PW1/1 and copy of khasra girdawri Mark A. He was cross examined by the defendants. Thereafter, PE was closed.
20. In defence, Sh. Jai Kumar, JJA, Mauza Clerk, Record Room Civil, Tis Hazari Courts was examined as DW-1 who produced the photocopy of Goswara register having entry of requisite file bearing suit No. 473/1991 CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 12 of 32 titled as Pradeep Kumar Kapoor vs. Vijay Singh decided on 03.01.1992 vide Goshwara number 612/ND by the then Civil Judge Sh. Tej Singh Kashyap having been weeded out in the weeding out process on 25.06.2010 which is Ex. DW1/1.
21. Sh. Gopal Khatri, Record Keeper, Sub-Registrar Office was examined as D1W3 who produced the record which are Ex. D1W3/1 to Ex. D1W3/6. He was cross examined by the plaintiff.
22. Sh. Hitesh Sharma, Meter Reader, BSES, Yamuna Power Ltd. was examined as D1W4 who produced the requisite record for both the connection bearing CA No. 100935952 and CA No. 100935739 which are Ex. D1W4/1 and Ex. D1W4/2. He was cross examined by the plaintiff.
23. Defendant No. 1 examined himself as D1W2 and tendered his affidavit in examination-in-chief as Ex. D1W2/A and relied upon the GPA, Agreement Deed, Affidavit, Receipt & Will all dated 13.11.1991 executed by Smt. Savitri Devi W/o Sh. Sudhir Kumar Tiwari in favour of Smt. Anita W/o Sh. Bharat Singh are Ex. D1W2/1 to Ex. D1W2/5 respectively, Birth Certificate Ex. D1W2/6, Gas Connection issued by Hindustan Petroleum Corporation Ltd. Ex. D1W2/7 and Election I Card of deponent and his wife Ex. D1W2/8 and Ex. D1W2/9. He was cross examined by the plaintiff.
24. Defendant No. 2 examined himself as D2W1 and tendered his affidavit in examination-in-chief as Ex. D2W1/A and relied upon the GPA, Agreement Deed, Affidavit, Receipt & Will all dated 14.12.1993 executed by Smt. Pushpa Sharma W/o Sh. Dinesh Sharma in favour of jointly Smt. Meena W/o Sh. Govind Singh and Sh. Govind Singh S/o Sh. Bhoora Singh which are Ex. D2W1/1 to Ex. D2W1/5 respectively. He further relied upon the GPA, Agreement Deed, Affidavit, Receipt & Will all dated 19.12.1991 executed by Sh. Vijay singh S/o Sh. Ram Nath Singh in favour of Smt. Pushpa Sharma CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 13 of 32 W/o Sh. Dinesh Sharma which are Ex. D2W1/6 to D2W1/10 respectively. {He further relied upon the GPA, Agreement Deed, Affidavit, Receipt & Will all dated 14.12.1993 executed by Smt. Pushpa Sharma W/o Sh. Dinesh Sharma in favour of jointly Smt. Meena W/o Sh. Govind Singh and Sh. Govind Singh S/o Sh. Bhoora Singh which are Ex. D2W1/11 to Ex. D2W1/14 respectively (documents Ex. D2W1/11 to Ex. D2W1/14 as mentioned in the affidavit of evidence, though relied upon in the examination-in-chief but same as not been relied while tendering nor exhibited in the record.)} He was cross examined by the plaintiff.
25. Defendant No. 3 examined himself as DW3 and tendered his affidavit in examination-in-chief as Ex. DW3/A and relied upon Ex. DW3/1. He relied upon Agreement to Sell, Affidavit and Receipt in favour of his wife Arti Saxena Ex. DW8/A, Insurance Policy in his name Ex. DW3/A, Electricity Bill Ex. DW8/B (colly.), Water bill dated 30.06.2007 Ex. DW8/C, Site Plan Ex. DW8/E, insurance policy in the name of his daughter Ex. DW3/C. He was cross examined by the plaintiff.
26. Sh. Gopal Dutt, Record Keeper, Sub-Registrar Office was examined as D3W1 who produced Will dated 19.07.1996 executed by Gainda Ram S/o Sh. Bishambar Dayal in favour of Arti Saxena W/o Sunil Mohan Saxena vide registration document No. 34182 volume 1556 book 3 page No. 4 on dated 19.07.1996, which is Ex. D3W1/1. He was cross examined by the plaintiff.
27. Sh. Gopal Dutt, Record Keeper, Sub-Registrar Office was examined as D3W1 who produced record of GPA executed by Smt. Savitri Devi Tiwari W/o Sh. Sudhir Kumar Tiwari in favour of Smt. Neelam Singhal W/o Sh. Yogesh Kumar Singhal vide registration No. 20119 book 4 volume No. 7805 pages 37-39 on dated 01.06.2002, copy of the same is Ex.D4W1/1. He also produced Will executed by Smt. Savitri Devi Tiwari w/o Sh. Sudhir CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 14 of 32 Kumar Tiwari in favour of Smt. Neelam Singhal W/o Sh. Yogesh Kumar Singhal vide registration No. 14217 book No. 3 volume 388 page No. 128 dated 07.06.1991, copy of the same is Ex. D4W1/2. He was cross examined by the plaintiff.
28. Defendant No. 4 examined himself as DW4 and tendered his affidavit in examination-in-chief as Ex. DW4/1 and relied upon General Power of Attorney, Agreement Deed, Affidavit and Receipt all dated 07.06.1991 executed by the previous owner Smt. Savitri Devi Tiwari Ex. DW4/A (colly.), Smt. Savitri Devi Tiwari executed General Power of Attorney before Sub- Registrar in favour of Smt. Neelam Singhal on 31.05.2002 Ex. DW4/B (OSR), copy of receipt bearing No. 20887 dated 29.10.1991 of payment for electricity connection charge is Ex. DW4/C, electricity bill Ex. DW4/D, photocopy of CGHS card of the deponent bearing No. 185749 and 325645 are Mark A and Mark B, present CGHS Card is Ex. DW4/E, water connection receipt bearing no. 259063 dated 25.11.1991 is Ex. DW4/F, water bill is Ex. DW4/G, payment receipt dated 06.09.1993 Ex. DW4/H, MTNL first bill is Ex. DW4/I, payment receipt dated 08.02.2001 and 05.01.2001 are Ex. DW4/J and Ex. DW/K, copy of Punjab National Bank is Ex. DW4/L, Gas Connection receipt is Ex. DW4/M, site plan Ex. DW4/N, original ration card Ex. DW4/O, passport of deponent bearing no. K1117575 is Ex. DW4/Q, voter identity card is Ex. DW4/R, school certificate of Ms. Pallavi Singhal daughter of the deponent is Ex. DW4/S, Letter issued by Ministry of Communication dated 24.08.1993 is Ex. DW4/T and photocopy of ration card Mark D. He was cross examined by the plaintiff.
29. Sh. Mukesh Chaudhary, one of the LRs of deceased defendant no. 5 examined himself as DW-5 who tendered his affidavit in examination in chief as Ex. DW5/1. He was cross examined by the plaintiff.
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30. Sh. V.K. Singh was examined as DW-9 who tendered his affidavit in examination in chief as Ex. DW9/A and relied upon document already Ex. DW4/1 (colly.). He was cross examined by the plaintiff.
Thereafter, defendants closed their evidence.
Findings After going through the pleadings, evidence, material on record and after appreciating long arguments of the counsel for parties, issues wise findings are as under:-
ISSUE No. 1:- Whether the plaintiff is entitled to the suit property? OPP
31. Onus to prove this issue is upon the plaintiff. Plaintiff has filed the present suit seeking relief of possession, injunction, account and damages in respect of property no. 12/7 (old no. 55) Saket Block, Mandawali, Fazalpur, Delhi claiming himself to be owner of the suit property alleging that defendants are in possession of the property and occupying various parts of the same after having trespassed into plaintiff's property and are illegally occupying the same. Thus, the suit of the plaintiff for relief of possession is based on title as well as on previous possession and his dispossession, hence, in this circumstance, plaintiff is required to prove his title to the suit property or previous possession and dispossession or both. Plaintiff is required to prove his title with cogent evidence as the sale Deed in his favour has been executed after his title was already questioned in his previous suit which was dismissed on the ground of maintainability vide judgment dt 18.09.1991 Ex PW1/DC.
32. In order to prove his ownership plaintiff has relied upon registered Sale Deed dated 09.12.1998 Ex P1/1 in his favor executed by one Raj Kumar Shekhri as an attorney of allegedly previous owners namely S/Sh. Jagbir Singh, Lakhi Chand and Hari Chand. Defendants have disputed the title of the plaintiff and that of alleged previous owner and have claimed title in themselves particularly in defendant No. 5 to 9. Apart from Sale Deed plaintiff CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 16 of 32 has not produced or proved any other document to prove his title. He has not brought on record any evidence to show that property was initially owned by S/Sh. Jagbir Singh, Lakhi Chand and Hari Chand. Although plaintiff in his examination-in-chief exhibited khasra girdawri but same was de-exhibited and was marked as Mark A while tendering examination-in-chief. Plaintiff did not summon any witness from the Revenue Department to prove the khasra girdawari so as to show that property at any point of time stood in the name of S/Sh. Jagbir Singh, Lakhi Chand and Hari Chand.
33. Plaintiff also did not produce and prove the Power of Attorney allegedly existing in favour of Raj Kumar Shekhri and on the basis of which Sale Deed was executed on behalf of S/Sh. Jagbir Singh, Lakhi Chand and Hari Chand. Mere execution/existence of Sale Deed will not of itself prove the ownership in whose name Sale Deed is existing that too when Sale Deed has not been executed by the alleged owner of the property through alleged attorney. It has got to be proved by the party claiming ownership in the property to prove the chain of title unless dispensed with by the admission of the defendant.
34. Plaintiff neither proved the ownership of S/Sh. Jagbir Singh, Lakhi Chand and Hari Chand by proving the revenue record nor has plaintiff placed and proved the attorney of Raj Kumar Shekri and thus from the evidence led on the part of the plaintiff it is not possible to hold that Sh. Jagbir Singh, Lakhi Chand and Hari Chand were the owner/bhumidar of the suit land or that they had executed Power of Attorney in favour of Raj Kumar Shekhari. In the absence of reliable and cogent evidence in this regard it cannot be held that these three persons were owner at any point of time or that they have transferred the title or authority in favour of Raj Kumar Shekhri who in turn had transferred the title in favour of the plaintiff. Merely because Sale Deed has been registered with the office of Sub-Registrar that will not CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 17 of 32 ipso facto prove that vendor therein were the owners of the suit property and vendee therein has become the owner of the property.
35. Apart from above noted aspect of the evidence plaintiff's own conduct is not inspiring confidence in the whole case of the plaintiff. As per plaint, plaintiff is owner of "house property" whereas in the subsequent paragraph of the pleadings plaintiff is pleaded to have raised only boundary wall meaning thereby that no other construction is existing therein but despite that plaintiff has claimed himself to be the owner of "house property". In cross examination conducted on 09.01.2013 he deposed that he had visited the suit property before filing the suit sometime in the year 1998-99. He further deposed that at that time suit property had one house constructed upto the ground floor and other houses were 2 and 2 ½ floors. He further deposed that the houses were of the defendants no. 2 to 9. He has further deposed that site plan filed with the plaint was prepared sometime prior to filing of the present suit. Perusal of the site plan filed by the plaintiff though not relied upon by the plaintiff in evidence shows that suit property is a plot and there is no construction whereas plaintiff admitted about construction in the suit property as noted above. Despiting having knowledge of construction and defendants No. 2 to 9 being in possession plaintiff did not file the suit against those defendant at first instance (initially suit was filed against four defendants out of which two were deleted and later other defendants were added).
36. Further, admittedly as per plaintiff, plaintiff's first suit for injunction was rejected on the ground that plaintiff was required to file suit for possession. The said suit was dismissed vide judgment dated 18.09.1991. Plaintiff has filed the present suit almost after little less than 12 years from the date of arising of cause of action. The sale deed is of 09.12.1998 executed almost 9 years after date of arising of cause of action. Reading of the plaint along with the plaint filed earlier by the plaintiff makes it clear that plaintiff had filed the first suit when allegedly there was only boundary wall and when CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 18 of 32 the present suit has been filed it has still been projected that it is a plot with boundary wall only though it came in evidence that sufficient construction as noted above has come up on the day of filling of the present suit. In the former suit plaintiff has sought restrain order against the defendants therein from raising construction in the suit property. Admittedly the said suit was rejected as court was of the view that simplicitor suit for injunction was not maintainable. Since no stay/restrain order was obtained/received by the plaintiff against the defendant therein from raising construction it was expected of the plaintiff to have filed suit immediately after rejection of the plaint to prevent further construction in the suit property and seek possession but as noted above plaintiff filed the present suit almost after 10 years from the rejection of the plaint and has thus allowed the former defendants or later defendants to raise construction in the suit property. Hence, plaintiff by his own conduct allowed defendants' to have ownership in the construction over the suit property.
37. Further more plaintiff in para 4 of the plaint has pleaded that "plaintiff now finds that the defendants are in possession of property and occupying various parts of the same". Use of the word "now" shows that plaintiff wants to convey to the court that defendants (originally 4 namely Bharat Singh, Manoj Kumar Gupta, Govind Ji and Smt. Savitri) have occupied the suit property in or around the date of filing of the suit. Plaintiff has not filed appeal against the rejection of the earlier suit. Thus plaintiff was required to explain as to whether the said occupier against whom he had filed earlier suit had vacated the suit property and plaintiff was put into possession only to find himself in and around the date of filing the suit that defendants are in possession of the suit property.
38. In cross examination conducted on 09.01.2013 he deposed that he had visited the suit property before filing the suit sometime in the year 1998-99. He further deposed that at that time suit property had one house CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 19 of 32 constructed upto the ground floor and other houses were 2 and 2 ½ floors. He further deposed that the houses were of the defendants no. 2 to 9. He has further deposed that site plan filed with the plaint was prepared sometime prior to filing of the present suit. Perusal of the site plan filed by the plaintiff though not relied upon by the plaintiff in evidence shows that suit property is a plot and there is no construction whereas plaintiff admitted about construction in the suit property as noted above. In any case despite having knowledge of the construction of different person in the suit property he chose to file suit only against 4 defendant at the first instance.
39. As noted above plaintiff failed to prove his title, now the question is whether plaintiff was in possession of the suit property and has been dispossessed? Plaintiff has claimed that plaintiff was put into possession of the suit property on 14.01.1986 by Raj Kumar Shekhari the attorney of the alleged previous owner namely S/Sh. Jagbir Singh, Lakhi Chand and Hari Chand. He further deposed in cross examination that Raj Kumar Shekhari had executed in his favour General Power of Attorney, Receipt, and other 2/3 documents in the year 1986 but none of them were produced and proved by the plaintiff. In cross examination defendant admitted one Will Ex. PW1/DE allegedly executed by Raj Kumar Shekhari on 19.03.1990 wherein Sh. Raj Kumar Shekhari has claimed to be absolute and sole owner and in possession of piece of land which he allegedly had transferred to the plaintiff. By citing Ex. PW1/DE it has been contended by Ld. Counsel for defendants that claim of the plaintiff that he was put in possession of the suit property in the year 1986 is not sustainable in the face of PW1/DE executed by Raj Kumar Shekhri. Ld. Counsel for defendants have also referred to the language used in the sale deed to contend that possession of the suit property appears to be delivered on the date of execution of the sale deed i.e. on 09.12.1998 which can not be possible in the face of the plaintiff's own stands that he was dispossessed on 28.11.1989 as is clear from the plaint of the former suit as well as from the plaint of the present suit.
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40. There is no evidence that plaintiff was ever put in possession of the suit property or that he was in possession of the suit property prior to his alleged dispossession or he was sold the suit property in the year 1986 by Raj Kumar Shekhri by way of GPA, Agreement to Sell etc. Plaintiff did not lead any evidence to prove that he had raised boundary wall or that boundary wall ever existed in the suit property. It also do not go down well that plaintiff went into somber and allowed defendants or other persons to continue with their illegal occupation in the circumstance of the case as pleaded particularly when he had already knocked the door of the court of law in the year 89-90 itself.
41. Perusal of many case laws involving suit for possession of immovable property based on title shows that title suit for possession has two parts, first, adjudication of title and second, adjudication of possession. If the title dispute is removed and the title is established then the suit in effect becomes a suit for ejectement and where defendant must plead and prove why he must not be ejected. For above view reference may be had to a few of case laws discussed in Skyland International Pvt. Ltd. v. Kavita P. Lalwani; 191 (2012) DLT 594; Maria Margarida Sequeria Fernandes v. Erason Jack De Sequeria 2012 (3) SCALE 550 etc. In the present case plaintiff has failed to prove title to the suit property despite having sale Deed in his favour, hence there is no need to discuss the rights of the defendants to remain in the suit property. Plaintiff also failed to prove his previous possession and dispossession by defendants or their predecessor-in-interest. Hence, plaintif is not entitled to possession either on the basis of title or on the basis of previous possession. This is not a case where question of better title is to be gone into for the reason that both plaintiff and defendant are not claiming title to the property through common origin. If plaintiff had been able to prove his title to the property, defendant's title to the property would have been gone into. Even other wise plaintiff has to stands in his own legs and defendants' failure to CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 21 of 32 prove their respective title to the suit property would not of itself prove the title of the plaintiff in respect of the suit property.
42. Other weaknesses in the case of the plaintiff has been pointed by Ld. Counsels for the defendants but need is not felt to discuss those points as discussion above is sufficient enough to for a definite view with respect to issue under consideration.
In view of the above plaintiff is not entitled to the suit property and accordingly issue No.1 is decided against the plaintiff.
ISSUE No. 2:- Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC? OPD ISSUE No. 8:- Whether the suit of the plaintiff is barred under Order 2 Rule 3 CPC.
43. Both issues are taken up together as they necessarily requires discussion of provision of Order 2 CPC. Onus to prove these issues are upon the defendant. It is the contention of the counsels for the defendants that admittedly plaintiff had filed suit in the year 1989 whereby seeking injunction against the then defendants and said suit was dismissed for failure of the plaintiff to seek relief of possession as Court found that the then defendants were appearing to be in possession of the suit property in view of the allegations of the plaintiff in the said plaint. It has been contended by Ld. Counsels for defendants that Order 2 Rule 2 and 3 bars the plaintiff to seek relief by way of subsequent suit in respect of left over claims or reliefs in respect of same cause of action. Hence, defendants have contended that the present suit filed by the plaintiff is barred by the provisions of Order 2 Rule 2 and 3.
44. Ld Counsel for the plaintiff has argued that cause of action of the former suit and of the present suit is different. She further contends that above said bar is not applicable to the present suit as defendants in the former suit CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 22 of 32 and in the present suit are different even if some were there earlier. She further contends that former suit was not decided on merits and therefore, she contends that even if defendants or cause of action were same, the above said bar is not applicable. She further contends that even otherwise while dismissing the suit Court has observed that plaintiff has sufficient time to file the suit for possession based on title. Hence, she contends that present suit is not barred.
45. The essential requirement for the applicability of bar of Order II Rule 2 and 3 is that cause of action of the former suit and that of the subsequent suit are same and plaintiff omitted or relinquished any portion of his claim or omitted to sue for all such reliefs in respect of the same cause of action without the leave of the court. In the present case an specific issue was framed and plaint Ex. PW1/DA of former suit was proved on the record.
46. The contention of the counsel for plaintiff that parties in the former suit and defendant are different hence bar of Order II Rule 2 and 3 will not apply, is taken up for consideration. Perusal of provision of Order II which relates to the frame of the suit does not talk of party to the suit. In this very provision fulcrum of right and disability relates to cause of action. Order II Rule 1 CPC provides that suit must include whole of the claim which plaintiff is entitled to make in respect of a cause of action and next provision discusses the bar referring to the cause of action. Thus, reading of it gives an impression that party to the suit are irrelevant and one has to focus only to the "cause of action". But Hon'ble Supreme Court in Alka Gupta v. Narender Kumar Gupta held that "the object of Order II Rule 2 of the code is two fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second to prevent the plaintiff from splitting of cause of action." Thus, for the applicability of the bar of Order II Rule 2 and 3 it has got to be seen that parties in the former suit and present suit should be same one or that parties in the present suit must be claiming their respective title CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 23 of 32 through the parties in the former suit otherwise there would not be twice suing or vexing of defendant or person claim under him.
47. In the former suit there were four defendants namely Sh.Vijay Singh, Sh Lal Singh, Ms Savitri and Sh Vinod Kumar whereas in the present suit initially there were four defendants namely Bharat Singh, Manoj Kumar Singh, Govindji and Smt. Savitri. Except Smt. Savitri other three were not party to the said former suit. The said former suit was disposed of even before waiting for the service of defendant 2 and 3 therein which includes Smt. Savitri Devi as well. Present Defendants No. 1 to 4 claim title to the different part of the suit property in their respective wives defendant No. 6 to 9. Defendant No. 6, 7 and 9 claimed to have purchased the different part of the suit property from Smt. Savitri Devi whereas defendant No.8 claimed to have purchased the part of the suit property from Shri Gainda Ram S/o Shri Bishambhar Dayal. Defendant No.5 claimed to have purchased part of the suit property from one Shri Subhash Chander S/o Shri Ram Lubhaya. Thus, three of them are claiming title to the suit property from Smt. Savitri Devi who was though impleaded in the former suit but had not been served. Question of vexing twice Savitri Devi does not arise as before she could have been vexed suit was dismissed. Thus, if object of Order II Rule 2 & 3 CPC as highlighted by the Hon'ble Supreme Court in the abovenoted judgment is kept in mind at least in this case Savitri Devi or person claiming title from her are being impleaded for the first time, hence this suit cannot be said to be barred by the said provision.
48. This apart the more important consideration is whether the former suit was decided on merits. Decision on merits means adjudication of the rights of the parties. Admittedly former suit was decided on maintainability and was dismissed as court found that suit was not maintainable as plaintiff had other efficacious remedy. Meaning thereby that Court held that even if plaintiff's right is accepted the remedy sought cannot be granted in view of CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 24 of 32 Section 41(h) of the Specific Relief Act. Dismissal of the said did not prevent the plaintiff from filling the suit for efficacious remedy. Hence, plaintiff's suit is not barred under the provision under Order II Rule 2 and 3 CPC and accordingly issue No. 2 and 8 is hereby decided against the defendants.
ISSUE No. 4:-Whether the suit of the plaintiff is barred by Limitation? OPD
49. Onus to prove this issue is upon the defendants. In this case different defendants have been impleaded in the suit at different times. Thus under general rule suit against each of the defendant would be deemed to have been instituted on the day application for impleadment was filed. Originally, there were four defendants against whom suit was initially filed. They are Bharat Singh, Manoj Kumar Singh, Govindji and Smt. Savitri defendants No. 1 to 4 respectively. Plaintiff moved an application under Order I Rule 10 read with Order VI Rule 17 CPC whereby praying for deleting the name of defendant No. 2 Sh. Manoj Kumar and defendant No.4 Smt. Savitri and seeking impleadment of Sunil Saxena, Yogesh Gupta and Vijender Singh. Said application was filed on 29.04.02 which stands allowed on the same very day. Hence suit against Sunil Saxena, Yogesh Gupta and Vijender Singh the newly numbered defendant No. 3 to 5 was filed on 29.04.2002.
50. Again on 03.09.2003 plaintiff filed another application under Order I Rule 10 CPC for impleadment of defendants No. 6 to 9 namely Smt. Anita W/o Bharat Singh the defendant No.1, Smt. Meena W/o Sh Govind Singh the defendant No.2, Smt. Arti Saxena W/o Sh. Sunil Saxena the defendant No. 3 and Smt. Neelam Singhal W/o Yogesh Gupta the defendant No.4. This application was allowed on 07.07.2006, thus, suit against defendants No. 6 to 9 has been instituted on 03.09.2003. It has been contended by the defendants that as per plaintiff cause of action to file the present suit arose on 28.11.1989 therefore, it is contended, suit against CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 25 of 32 defendant No. 3 to 9 was beyond the period of 12 years. It has been further contended that defendant No. 6, 7 and 9 have purchased the property from Smt. Savitri Devi against whom suit was instituted initially but she has been dropped/deleted by the plaintiff and therefore suit against the defendant No. 6, 7, & 9 is clearly time barred.
51. Per contra Ld. Counsel for plaintiff has contended that suit of the plaintiff is based on title and limitation to file suit for possession based on title begins to commence from the day when the possession of the defendant become adverse to the plaintiff. It has been contended by the counsel for the plaintiff that onus is upon the defendant to prove as to when their possession became adverse. She further contends that defendant No. 6 to 9 did not grace the witness box and testimony of their husbands cannot be of any use in view of the rulings of the Hon'ble Supreme Court in Vidydhar v. Manik Rao & Ors; AIR 1999 SC 1441 wherein it was held in para No. 16 as under:-
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksh Singh v. Gudial Singh and Anr. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bishan Chand and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
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52. She further contends that none of the witness of defendants ever pointed as to when their possession becomes adverse to that of the plaintiff. Hence, suit is well within time.
53. There is no dispute that limitation for suit for possession based on title or on possession is 12 years but commencement points are different in both situation. In the case of suit for possession based on possession and not on title period of limitation starts from the day when plaintiff was dispossessed whereas in the case of suit for possession based on title period of limitation commences from the day when the possession of the defendant becomes adverse to that of the plaintiff. But problem crops up when suit is neither purely based on title nor purely on possession but on both as is the case in the present case where plaintiff claims both title and previous possession and dispossession as well.
54. Article 64 of the Limitation Act, 1963 takes care of suit for possession based on previous possession whereas Article 65 of the Limitation Act, 1963 takes care of suit for possession based on title. Hon'ble Supreme Court in Ramiah v. N. Narayan Reddy AIR 2004 SC 4261 held as under:-
"We do not find any merit in the aforestated arguments. Article 64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs' title in which there is no allegation of prior possession and subsequent dispossession alone can fall within Article 65. The question whether the article of limitation applicable to a particular suit is Article 64 or Article 65 has CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 27 of 32 to be decided by reference to pleadings. The plaintiff cannot invoke Article 65 by suppressing material facts. ..........
In the case of Ram Surat Singh & others v. Badri Narain Singh reported in [AIR 1927 Allahabad 799], it has been held that if the suit is for possession by a plaintiff who says that while he was in possession of the property he was dispossessed, then he must show possession within 12-years under article 142 ( now Article 64) of the Limitation Act. To the same effect is the ratio of the judgment in the case of Mohammad Mahmud v. Muhammad Afaq & others reported in [AIR 1934 Oudh 21]. In the commentary on the Limitation Act by Sanjiva Row [Ninth Edition IInd Volume page 549] it has been stated that the question as to which of the two articles would apply to a particular case should be decided by reference to pleadings, though the plaintiff cannot be allowed by skilful pleading to avoid the inconvenient article. On facts of the case, we find that the Article 64 is applicable to the present suit. Consequently, the suit has been rightly dismissed by both the Courts below."
55. However, in the case of Deva v. Sajjan Kumar AIR 2003 SC 3907, Hon'ble Supreme Court has, in no uncertain terms held as under:-
"The plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed title by remaining in adverse possession for a continuous period of 12 years."
56. In Saroop Singh v. Banto & Ors. AIR 2005 SC 4407 it was observed by Hon'ble Supreme Court as under:-
''The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 28 of 32 twelve years, preceding the date of institution of the suit.
However, a change in legal position has been effected in view of Articles 64 & 65 of the Limitation Act, 1963. In the instant case, plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed herein before, the first defendant-Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.
In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak and Others Vs. Somnath Muljibhai Nayak and Others (2004) 3 SCC 376).
57. Further in the case of AIR 1976 Madras 124 Bhagavathy v. Savaimuthu it was observed that Art. 65 related to suits for possession based on title. In such a case period of limitation was 12 years when the possession of the defendant became adverse to the plaintiff. If in a suit falling under Art. 65, the defendant wanted to defeat rights of the plaintiff, he had to establish his adverse possession for a period of 12 years which would have the effect of extinguishing the title of the owner. It was further held that if defendant failed to do so then the plaintiff could not be non-suited merely because he was not able to prove possession within 12 years. In the case of a suit for possession based on title the plaintiff had no longer to prove that he was in possession of the property for a period of 12 years. It was for the defendant to establish that his possession had been adverse for the requisite period of 12 years.
58. In view of aforesaid judgments and also keeping in mind the stand taken in the pleadings, it becomes apparent that plaintiff in the present case has come up with both pleas i.e. plea of title and plea of previous possession and in such a situation, it cannot be said that Article 64 of the Limitation Act is attracted. To this court it appears that present situation falls within Article 65 of the Limitation Act. As discussed above, in Article 64 of CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 29 of 32 the Limitation Act, question of title does not come into play at all. Once, Article 65 of Limitation Act is applied then plaintiffs are only required to prove the title. It is for the defendants to show that they had perfected their title by adverse possession by remaining in possession for a period of continuous 12 years or more preceding the filing of the suit. In such a situation, plaintiff is not required to prove his possession within the aforesaid period of 12 years preceding filing of the suit. Once any such defendant fails to discharge such onus then plaintiff is entitled to decree of possession on the basis of title deeds irrespective of the fact whether such plaintiff was in possession for the previous period of 12 years or not. Both the parties are deriving their respective title from different persons. According to the plaintiff, he had purchased the suit property from S/Sh Jagbir Singh, Lakhi Chand and Hari Chand in 1986 through Raj Kumar Shekhri who had earlier executed GPA, receipt etc but later on 9 th December 1998 executed Sale Deed in his favour whereas according to defendant No. 6, 7 and 9 claimed to have purchased different part of the suit property from Smt. Savitr Devi. Defendant No.3 claimed to have purchased from one Gainda Ram and defendant No.5 purchased from Shri Subhas Chander.
59. Defendant No.1 and defendant No.6 claims to be in possession of the part of the suit property from 13.11.1991 as owner and suit against them was filed on 5.11.2001 and 03.09.2003 respectively and thus suit against them is well within 12 years. Defendant No.2 and defendant No.7 claims to be in possession of the part of the suit property as owner w.e.f 13.11.1991 and suit against them was filed on 5.11.2001 and 03.09.2003 respectively thus suit is well within 12 years against them. Defendant No. 3 and defendant No. 8 claims to be in possession of the part of the suit property as owner w.e.f 19.07.1996 and suit against them was filed on 29.04.2002 and 03.09.2003 respectively which is also well within limitation. Defendant No.4 and defendant No.9 claims to be in possession of the part of the suit property as CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 30 of 32 owner w.e.f 07.06.1991 and suit against them was filed on 29.04.2002 and 03.09.2003 which is also within limitation against defendant No.4 but barred against defendant No.9. Defendant No. 5 claimed to be in possession of the part of the suit property as owner w.e.f. 17.02.1992 and suit against defendant No.5 was filed on 29.04.2002 which is also within limitation. Therefore except for defendant No.9 suit is well within limitation against all the defendants. Hence issue is decided accordingly.
ISSUE No. 3:- Whether the suit of the plaintiff is barred under Section 6 of the Specific Relief Act? OPD
60. This is issue is deliberately taken up after the issue No.4 as it also necessarily involves discussion on question of limitation. Onus to prove this issue is upon the defendants. Ld counsels for defendant have argued that suit based on previous possession can only be filed within a period of six months and present suit having been filed after six months is not maintainable and is thus liable to be dismissed.
61. The contention of the Ld Counsels for defendants is not sustainable as while discussing issue No.4 it has been noted that a person can file suit within 12 years based on his previous possession alone and dispossession of the suit property in terms of Article 64 of the Schedule to the Limitation Act, 1963. Hence, issue No. 3 is decided against the defendants.
ISSUE No. 5:- Whether the plaintiff is entitled to recover damages, if so, in what amount and from which of the defendants?
ISSUE No. 6:- Whether plaintiff is entitled to decree for accounts?OPP ISSUE No. 7:- Whether plaintiff is entitled to injunction as prayed? OPP CS No. 48725/2014 Pradeep Kumar Kapoor Vs. Bharat Singh & Ors. Page No. 31 of 32
62. Issues No. 5, 6 and 7 are taken up together. However, in view of the findings recorded on issue No. 1 the above three issues No. 5, 6 and 7 are hereby decided against the plaintiff.
RELIEF In view of the above findings recorded on all issues suit of the plaintiff is hereby dismissed.
Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary
compliance. Digitally signed
HARISH by HARISH
KUMAR
KUMAR Date: 2018.08.09
16:31:49 +0530
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 32 pages) Delhi/09.08.2018
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