Delhi District Court
Modern School vs Shri Bhagwan Singh Son Of Late Sh. Avtar ... on 31 January, 2015
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE
(CENTRAL) 03, THC, DELHI
Date of institution : 15.12.2003
Judgment reserved on : 30.01.2015
Judgment delivered on : 31.01.2015
Suit No.11/2014 Unique Case ID No.02401C0064402004
(Old No. 125/4/2003)
Modern School, Delhi
Barakhamba Road,New Delhi110001 ......Plaintiff
Versus
1. Shri Bhagwan Singh Son of Late Sh. Avtar Singh
2. Shri Mohinder Singh Son of Late Sh. Avtar Singh
3. Smt. Bishambari Devi Wife of Late Sh. Avatar Singh
All R/o Servant Quarters,
Modern School, Delhi
Barakhamba Road,
New Delhi110001 ......Defendants
J U D G M E N T
1. This is a suit for possession along with arrears of mesne profits and future mesne profits, interest and costs filed by Shri CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 1 Ashok Pratap Singh, the Hony. Secretary of the plaintiff against Sh. Bhagwan Singh, Sh. Mohinder Singh & Smt. Bhishambari Devi, the defendants.
2. The brief resume of the facts of the case, as set out in the plaint is that the plaintiff is a society duly registered under Societies Registration Act, 1860 and it is running as Modern School at Barakhamba Road, New Delhi and Sh. Ashok Pratap Singh is duly authorized to file, sign, verify and prosecute the present suit.
Further that Late Sh. Avtar Singh was an employee of the said school and during his service tenure, he was assigned an accommodation (hereinafter referred as the suit premises) within the compound of school, more particularly shown in red in the attached site plan, on a license basis and such license could be withdrawn at any time, at the desire of the plaintiff.
Also that Sh. Avtar Singh retired from the service on 30.06.1991 but even after his retirement, he continued to CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 2 retain and occupy the suit premises illegally and after his death in the month of May, 2003 his L.Rs, the defendants herein continued to occupy the suit premises. Hence the suit.
3. The defendant in its contrapleadings in the form of Written Statement has raised preliminary objections that there is no cause of action, the suit is barred by limitation, the suit is not property valued for the purpose of court fees and jurisdiction, the suit is filed without authorization and bad for the want of any notice served prior to filing of the suit.
On merits denying all the averments raised in the plaint, pleaded that the father of the defendant Nos. 1 and 2 was allotted the accommodation on permanent basis and the defendants were in uninterrupted occupation in the suit premises for more than 13 years, maintaining it at their own costs and that the defendants are not liable to any mesne profit being the claim is time barred praying for dismissal of the suit.
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4. The plaintiff has vehemently countered the written statement of the defendants in his replication reiterating the facts stated therein in the plaint.
Thus, the plaintiff has reiterated his prayer in his plaint for the decree of possession and a money decree towards damages / mesne profits for use and occupation of the suit property.
5. Ld. Counsel for the plaintiff has relied upon following judgments in support of his contentions :
1. T. Anjanappa & Ors. Vs Somalingappa & Anr., Appeal (Civil) 3494/2006 decided on 22.08.2006
2. S. R. Agamuthu Pillai Vs S. R Natrajan (Died) Second Appeal No.2315/2004 decided on 18.02.2011
3. M. B. Khan Vs A & U Tibia College RSA No.233/2005 decided on 18.04.2011
4. Southern Roadways Ltd. Madurai Vs S. M. Krishnan (1989) 4 SCC 603
5. State of Orissa & Anr. Vs Damadar Das (1996) 2 SCC 216
6. Thakur Kishan Singh (Dead) Vs Arvind Kumar (1994) 6 SCC 591
7. P.T. Munichikkanna Reddy & Ors. Vs Revamma & Ors. (2007) 6 SCC 59
8. Shri Radhakrishan Temple Trust Maithan, Agra Vs M/s Hindco Rotation Pvt.
Ltd. & Ors. RFA No.40/2010 decided on 20.12.2011
9. M/s Jeevan Diesels & Electricals Ltd. Vs M/s Jasbir Singh Chadha (HUF) & Anr. RFA No.179/2011 decided on 25.03.2011
6. Ld. Counsel for the defendant has relied upon the CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 4 following judgments (not reported) in support of his contentions : (1) Avtan Singh Vs. Modern School in Suit No. 323/03, delivered on 09.11.2004 (2) Bhagwan Singh Vs. Modern School in Suit No. 435/04 delivered on 21.07.2007
7. On the basis of the pleadings, vide order dated 19.07.2014, following issues were framed: ISSUES
(i) Whether the plaintiff is entitled to the possession of the suit property, as prayer (i) of the plaint? OPP
(ii) Whether the plaintiff is entitled to the money decree for recovery of mense profit/arrears and/or future mense profit along with interest in view of prayer (ii) & (iii) of the plaint or if so, at what rate, for which period and if yes, then at what interest?
OPP
(iii) Whether the suit is barred by limitation? OPD
(iv) Whether the present suit is not property valued for the purposes
of court fees and jurisdiction? OPD
(v) Whether the suit is bad due to non service of notice? OPD
(vi) Whether the suit is bad for misjoinder of necessary parties? OPD
(vii) Whether the suit is filed without authorization by the Board
of Trustees? OPD
(viii) Relief
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8. Vide separate statements of Ld. Counsels for the parties, the issue Nos.(iv) & (vi) are dropped from the array of issues.
9. To discharge the burden laid down on the parties in the issues of controversy, the plaintiff has examined himself as PW1 and has tendered his affidavitinevidence as Ex. PW1/A and exhibited the following documents:
A copy of bunch of the letter is Ex. PW1/1 (colly.). A copy of the site map is Ex. PW1/2 (colly.). A copy of order dated 24.04.2010 is Ex. PW1/3 (colly.). A copy of the resolution is Ex. PW1/4 (colly.).
The plaintiff has also examined one Sh. Balbir Sharma, as PW2, and has tendered his affidavitinevidence as Ex. PW2/A.
10. Defendants have examined themselves as DW1 & DW2 respectively and they have tendered their affidavits as Ex. DW1/A & Ex. DW2/A respectively. They have relied on document i.e. The copy of Judgment dated 21072007 Ex. DW1/1.
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11. Having heard Ms. Raavi Birbal, Ld. Counsel for the plaintiff and Sh. K. S. Rana, Ld. Counsel for the defendant and having perused the records consisting of the pleadings and evidence, meticulously and on thoughtful considerations to the authorities relied upon, in the lights of the contentions of the counsels of the parties, my issuewise findings are given in the following paras.
12. My issuewise finding are as below:
13. The issue No. 3 relating to limitation, being the legal issue has been taken up first.
ISSUE No. (iii)
(iii) Whether the suit is barred by limitation? OPD The onus to prove this issue was laid on the defendant.
14. The defendant has taken a preliminary objection that the suit is barred by period of limitation as Late Sh. Avtar Singh, CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 7 the father of the defendants No. 1 & 2 who was alloted the accommodation i.e. the suit premises in question has retired in 1991 and the plaintiff could have filed the suit for possession and mesne profit within 3 years i.e. upto 1994 and the suit has been filed in the year 2003, thus , it is hopelessly time barred as since July, 1991 the defendants and their family are in exclusive and uninterrupted possession and use of the premises and thereby the suit for possession filed in 2003 is hopelessly barred.
15. Apart from the plea in the form of preliminary objections on this issue and the same & similar depositions in para 7, the defendant had not led any evidence in affirmative and ld. Counsel for the Defendants has raised the contention that since July 1991, the plaintiff has not asked for the vacation of the suit premises from the defendants and thus, after three years since then the suit for possession is barred by limitation as it is filed in December, 2003, after 12 years.
16. To counter the defendant's plea Ld. Counsel for the CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 8 plaintiff has submitted that during the lifetime of Sh. Avtar Singh who was the employee of the plaintiff and was allotted the accommodation due to his employment and as he had retired on 30061991 and had expired on 10052003, there was no question of asking the defendants who were the family members of its employee Sh. Avtar Singh and were residing in the capacity of his family members, thus only after his death when they continued to stay in the suit premises, the cause of action seeking vacation of such house has arisen against the defendants and since then i.e. after the death of Sh. Avtar Singh its employee on 10.05.2003, if the limitation is reckoned for the purpose of the filling of suit on 19122003, there was no delay in filling of the suit.
17. Ld. Counsel for the plaintiff has further raised a contention that Sh. Avtar Singh, the father of the defendant No. 1 was in permissive use being the licensee in the servant quarter and the defendants in the capacity of his agents who are continuing in possession on his behalf, after his death can not have better title than that of its principal, in view of law CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 9 settled in the cases titled as S. R. Agamuthu Pillai Vs S. R Natrajan (Died) Second Appeal No.2315/2004 decided on 18.02.2011 & Thakur Kishan Singh (Dead) Vs Arvind Kumar (1994) 6 SCC 591.
18. On the meticulous perusal of the relevant record and on thoughtful consideration of the contentions of the parties in the light of law settled on the point of limitation when applied to the facts and circumstances duly established on record, it is observed that certain facts are not in dispute or rather established on record that,
i) The suit premises was an accommodation allotted to Sh. Avtar Singh, the father of defendant No. 1 & 2 & husband of defendant No. 3, way back in 1953 due to his employment and his right of possession was coconcurrence to his tenure of employment with the plaintiff.
ii) Sh. Avtar Singh had retired on 30061991 but continued to possess the premises until his death on 10052003.
iii) The defendants being the family of Sh. Avtar Singh was in copossession of the suit premises untill his death, had no independent stands of possession.
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19. The right to recover possession qua Sh. Avtar Singh existed since the day on termination of the license as Sh. Avtar Singh was a licensee, in permissive use in the suit premises and was permitted to stay during his tenure of employment.
20. But the defendants who were the family members of late Sh. Avtar Singh, were in possession of the suit premises in the capacity of family members of the abovesaid employee of the plaintiff. Thus, the right to recover possession from the family members of such employee could have been arisen only after the death of such employee as the family members continued to remain in possession not in the independent capacity but as agent of the employee, i.e. also only after his death that occurred on 10052003.
Thus, the cause of action against the defendants for recovery of possession of the suit premises basically has arisen only on the date of the death of Sh. Avtar Singh, the employee of the plaintiff as such employee was in possession CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 11 of such suit premises in the capacity of an employee and due to his employment and the family members of such employee had no independent right in any capacity to stay in the suit premises, that was allotted to the employee of the plaintiff due to his employment.
21. If reckoned the period of limitation since the day of the death of Sh. Avtar Singh on 10052003, the filing of the suit st on 21 of December, 2003 can not be beyond the period of limitation.
22. So far as the contention of the adverse possession of the defendants since 1991 or even since their birth or the date of their inception in the suit premises otherwise, is concerned, both the issues of limitation and the right of adverse possession are distinct cause of actions and the observations qua adverse possession shall be dealt with in separate issue No. 1 that has been framed on the plea of the plaintiff regarding its entitlement for possession as the defendants have contested such issue on the ground/defence of adverse CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 12 possession.
In view of above observations, the issue No. (iii) is decided in negative and against the defendant and goes in favour of the plaintiff that the suit is not barred by limitation.
23. Now, before takingup the Issue No. (i) & (ii) relating to the claims of the plaintiff in the suit, the other legal issues shall be takenup one by one.
24. ISSUES No. (iv) & (vi)
(iv) Whether the present suit is not property valued for the purposes of court fees and jurisdiction? OPD &
(vi) Whether the suit is bad for misjoinder of necessary parties? OPD The onus of proving these issues was on the defendants but on the statements of the parties vide order dated 16.01.2015 as the preliminary objections regarding these CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 13 issues were withdrawn by the counsel of the defendants on behalf of defendants, these two issues were dropped vide order dated 16.01.2015. Thus, need no specific observations.
25. ISSUES No. (v)
(v) Whether the suit is bad due to non service of notice? OPD The onus of proving this issue was on the defendants.
26. The defendants have taken a preliminary objection in the written statement that the defendants were never served with any notice prior to filing of the present suit and hence, the suit was liable to be dismissed for the want of notice.
27. The similar plea has been reiterated in para 5 of the depositions of DW1 regarding non serving of any notice or letter regarding any objection on their stay in the suit premises or seeking vacation of the premises from them or even to Sh. Avtar Singh, the father of the defendant No. 2 and 3 during his lifetime.
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28. The plaintiff to contest this issue has produced the ocular evidence of Sh. L. D. Pant, PW1 and Sh. Balbir Sharma, PW2 who have deposed in Para 5 of their affidavitinevidence Ex.PW1/A and Ex.PW2/A respectively that repeated reminders were given to Shri Avtar Singh while he was alive to vacate the suit premises but he did not handover the possession of the flat on one pretext or the other, causing hardship to the school and hampering its working. The copy of letters is exhibited as Ex.PW1/1 (Colly).
29. It was submitted on behalf of Plaintiff that the depositions in para 5 of PW1 & 2 remained unrebutted and unquestioned and that the letter dated 13.06.1991 Ex.PW1/1 was duly served to Sh. Avtar Singh as on that day he was in the service and letter dated 10.02.1995 was also duly served to him and otherwise also is deemed to be served as per provisions of General Clauses Act as it was addressed to Sh. Avtar Singh at his official residence allotted to him within the compound of the Modern School, Barakhamba Road, New Delhi as it is an admitted fact that on that day, he was a resident and in CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 15 possession of the suit premises and the letter was addressed at such address. It is further submitted that the defendants who were the family members of Sh. Avtar Singh and were co possessor of the suit premises with him were also deemed to as being served with such notices as the agent of Sh. Avtar Singh.
Also that it is a well settled prepositions of law that serving of summons of the suit for possession itself is a sufficient notice in view of law settled in a case titled as M/s Jeevan Diesels & Electricals Ltd. Vs M/s Jasbir Singh Chadha (HUF) & Anr. RFA No.179/2011 decided on 25.03.2011 wherein it was held that, 'the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice alongwith documents was duly served to the tenant. ....'
30. It is observed that it is not in dispute that the suit premises was allotted to Sh. Avtar Singh being an employee of the plaintiff for possession only during his tenure of employment to facilitate the service to be rendered by him to the plaintiff and the defendants were in occupation of the suit CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 16 premises being the family members residing with him in the capacity of the members of his family.
It is also not in dispute that Sh. Avtar Singh has retired from services on 30.06.1991 and that on 13.06.1991 he was in service. The Letter Ex.PW1/1 is addressed to Sh. Avtar Singh and it is not the case of the defendants that Sh. Avtar Singh was not present in the school in service of the plaintiff on 13.06.1991 or that he was not in possession of the suit premises on that date. Nothing has been shown to prove that such letter was not received by Sh. Avtar Singh nor any contrary has been proved on record to show that such letter was not received by him on that date when he was on duty or that he was not on duty on that day or that he was not present even in the suit premises on that day not to receive such letter that was an official letter addressed to him as an employee of the plaintiff.
31. It is observed that the contents of such letter show that it was in the form of a notice to terminate his license of CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 17 occupying the accommodation allotted to him as the employee of the school as it reads :
you attain the age of superannuation on 24.06.1991. However you will continue to work till the 30.06.1991.
You are also advised to vacate the school accommodation by 31.07.1991 and handover the same to the undersign.
32. As nothing contrary has been proved to show that Sh. Avtar Singh was not on duty on the date of 13.06.1991, it is safely assumed that official communication has been duly received by Sh. Avtar Singh in the official capacity from the office administration. This can safely be concluded as the depositions of PW1 and 2 in their ocular evidence Ex.PW1/A & Ex.PW2/A remained unrebutted and the witnesses stood unshattered on these depositions supported with the documentary evidence i.e. letter Ex.PW1/1 ( colly) & their testimony remained unrebutted on these aspects on the test of cross examination by the defendants.
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33. Thus, it is established on record that Sh. Avtar Singh, the father of defendant No. 1 & 2 who was provided with the accommodation / suit premises by the plaintiff in the capacity of its employee during the tenure of his employment as a licensee only and vide letter dated 13.06.1991 Ex.PW1/1, the license was duly terminated and that was a sufficient notice of termination of the license vide which he was to vacate the suit premises by 31.07.1991 and handover the same to the administrative officer of the plaintiff, the author of the letter, examined as PW2.
Thus, with the ocular evidence of PW2 and the supporting documentary evidence Ex.PW1/1, the plaintiff has duly proved that notice of termination of the license of Sh. Avtar Singh was served upon him during his lifetime and even before his date of retirement, to vacate the suit premises on his retirement after one month of the date of retirement by 31.07.1991.
34. In view of amended Section 106 of TPA, it is a valid CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 19 notice of termination of license and after termination of the license with the directions to handover the vacant possession by 31.07.1991, Sh. Avtar Singh became the illegal occupant of suit premises.
35. Also the defendants who were the family members of Sh. Avtar Singh and were cooccupant with him in the suit premises, after his death on 10.05.2003, when continued to remain in possession were living only as an agent of Sh. Avtar Singh having no better status as that of Sh. Avtar Singh who became illegal occupant after 31.07.1991 on termination of his license as the defendants could better be defined only as agents to their principal Sh. Avtar Singh and in these circumstances no further notice for seeking vacation of the premises were required separately to be served to them.
36. Further, in view of law settled in case titled as M/s Jeevan Diesels & Electricals Ltd. Vs M/s Jasbir Singh Chadha (HUF) & Anr. RFA No. 179/2011 decided on 25.03.2011, as the summons of the suit were duly served and they have even replied to the plaint in the form of CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 20 their written statement, it was sufficient notice to defendants for an action for recovery of possession as the license has already terminated vide letter Ex.PW1/1 served upon Sh. Avtar Singh, who was allotted the suit premises in the capacity of an employee of the plaintiff and for occupation only during the term of his employment that concluded on his retirement on 30.06.1991.
37. Moreover, after the death of Sh. Avtar Singh, the defendants had no answer as to in what capacity they were occupied such premises and in view of law settled in case titled as M. B. Khan Vs. A & U Tibia College in RSA No. 233/2005 decided on 18.04.2011, of the Hon'ble High Court of Delhi, wherein the principles settled, holds good in this case also that the defendants were illegal and unauthorised occupant in the suit premises after the retirement of Sh. Avtar Singh who was allotted such accommodation as an employee and the defendants were staying with him only as his family members in the suit premises.
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38. Thus, on the basis of above observations, it cannot be said that the suit was bad due to non serving of notice.
Hence Issue No. (v) is decided in negative and against the defendants and in favour of the plaintiff.
39. ISSUES No. (vii)
(vii) Whether the suit is filed without authorization by the Board of Trustees? OPD The onus of proving this issue was on the defendants.
40. The defendants have taken a preliminary objection in the written statement that the present suit has been filed by the Secretary of the plaintiff without authorisation and power of attorney by the Board of Trustee and hence, the suit was liable to be dismissed.
41. Apart from mere plea in the contra pleadings the defendants have not led any evidence to prove such plea and CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 22 the plea remained a mere plea without evidence.
Whereas the plaintiff during his cross examination on this aspect has testified that the plaintiff is a school registered under the Societies Act and the Board Resolution was passed according to such Act and the plaintiff has filed the suit through Sh. Ashok Pratap Singh, its secretary who was duly authorised by the Board of Trustees, to sign, file and verify the plaint.
Thus, the defendants could not prove either through affirmative or independent evidence to prove Issue No.
(vii). Thus, Issue No. (vii) is decided in negative and against the defendants and goes to in favour of plaintiff.
42. ISSUES No. (i)
(i) Whether the plaintiff is entitled to the possession of the suit property, as prayer (i) of the plaint? OPP The onus is laid on the plaintiff to prove this issue. CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 23
43. The plaintiff's case is that one Sh. Avtar Singh was in service of the plaintiff's school since 1953 and the suit premises was allotted to him for his residential accommodation within the compound of the school, he retired on 30.06.1991 and even after retirement continued in possession of the said accommodation and after his death on 13.05.2003, the members of his family, the defendants herein continued in possession of the suit premises.
44. To establish his claim of recovery of possession against the defendants, the plaintiff has produced the ocular evidence of Sh. L. D. Pant, PW1 and Sh. Balbir Sharma as PW2 who by way of their affidavit in evidence Ex. PW1/A and Ex. PW2/A have deposed in corroboration to each other that Sh. Avtar Singh was an employee of the plaintiff's school and during his tenure of service assigned with an accommodation for discharge of his duties in a better manner and the premises was purely on the license basis and could be withdrawn anytime at the desire of the plaintiff.
CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 24 Also that Sh. Avtar Singh retired from the service on 30.06.1991 and was served with a letter dated 13.06.1991 Ex. PW1/1 vide which the license was terminated and he was asked to vacate the school accommodation by 31.07.1991 and was advised to handover the possession of the suit premises to the school administration but he did not vacate the suit premises and continued to remain in possession illegally and unauthorizedly until his death on 10.05.2003 and even after his death the members of his family who are the defendants herein continued to remain in possession and thus, the plaintiff is entitled to recover the possession of the suit premises from the defendants who are otherwise not entitled to possess the suit premises anymore, in any capacity.
45. It is observed that it is not in dispute that the suit premises was allotted to Sh. Avtar Singh only in the capacity of an employee of the plaintiff's school and can not be on permanent basis, as alleged by the defendants and also that Sh. Avtar Singh has retired from services on 30.06.1991 but continued in possession of the suit premises even after his CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 25 retirement.
It is also not in dispute that the defendants are the family members of Sh. Avtar Singh who were residing with him in the capacity of his family in the suit premises. It is also not in dispute that Sh. Avtar Singh has expired on 10.05.2003 but the defendants continued in possession on such suit premises even after the death of Sh. Avtar Singh, the father of defendant no. 1 & 2 & husband of defendant No. 3.
46. The claim of recovery of possession of the plaintiff has been contested by the defendants in their contra pleadings/WS that only defendant no. 1 (the son of late Sh. Avtar Singh) is in possession and control of the suit premises and defendant no. 2 & 3 are residing separately and that the defendant no. 1 has a right of the adverse possession being in the possession since his birth and a suit of declaration of title on the basis of adverse possession has been decreed in favour of defendant no. 1 vide order/judgment dated 21.07.2007 Ex. PW1/1 and thus, the plaintiff cannot claim CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 26 possession of the suit premises from defendant no. 1.
47. The plaintiff has submitted that the decree/judgment dated 21.07.2007 is under challange in appeal in the court of Ms. Ruby Alka Gupta, ADJ/NEW DELHI and is pending at Patiala House Courts and thus the res qua claim of possession on the basis of adverse possession has not yet been adjudicated upon being subjudice. It is further submitted that the decree was an exparte decree and was not decided on merits as defendants in that case could not lead its evidence to resolve the controversy on merits and the judgment/decree is impugned in the court of law.
48. Ld. Counsel for the plaintiff has relied on the law settled in a case titled as P.T. Munichikkanna Reddy & Ors. Vs Revamma & Ors. (2007) 6 SCC 59 and has submitted that the defendant no. 1 cannot claim right of adverse possession being possession was illegal and unauthorized as his father was in permissive use of the suit premises as a licensee and only length of his possession in the suit property cannot make him entitled on CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 27 the basis of adverse possession, in view of the settled proposition as settled in the above noted case wherein a catena of judgments were discussed to clarify the concept of adverse possession wherein it was observed, 'mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession' ..........
'Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile' .............
'Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. Adverse possession has been termed as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law. As against rights of the owner of the property on paper, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for th e land, developed it, as against the owner of the property who has ignored the property'.
49. Ld. Counsel for the defendants has raised the CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 28 contentions that since July 1991, after 12 years of continuous uninterrupted possession, the suit for possession is filed in the month of December 2003 and the defendant no. 1 is in possession of the property since his birth and his possession was continuous and uninterrupted thus was adverse, therefore, the suit for possession is not maintainable.
50. It is observed that the factum of possession of Sh. Avtar Singh as a licensee of the plaintiff's school being an employee and that the allotment was during his tenure of service, that concluded on his superannuation on 30.06.1991, are established facts being not in dispute.
The defendant no. 1 or the other defendants being the members of the family of Sh. Avtar Singh was in use and occupation of the suit property were dependents, thus, were on the permissive possession with that of Sh. Avtar Singh, thus until his death on 10.05.2003, the defendant no. 1 or to say all the defendants were not in independent and exclusive possession of the premises to that of Sh. Avtar Singh, who CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 29 could claim, subject to the necessary ingredients satisfied for the claim of adverse possession, on the ground of his continuous possession since July 1991 upto 10.05.2003 during the period after his retirement and upto his death, against the true owner i.e. the plaintiff's school, if for the sake of argument it is assumed that Sh. Avtar Singh was not interrupted during such period by the true owner to take the plea of adverse possession.
51. It is clear from the facts and circumstances of the case that the defendant no. 1 or the other defendants were not in exclusive and independent possession of the suit premises to that of Sh. Avtar Singh upto 10.05.2003 until his death, rather they were in copossession of the suit premises only as the members of the family of Sh. Avtar Singh, who was in permissive use as a licensee.
52. Thus, the claim of adverse possession, if any, qua defendant no. 1 or for the defendants could be claimed only from the day of 10.05.2003 and not before that. CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 30 This is a matter of common knowledge on the concept of the adverse possession that 'a right or title on the basis of adverse possession is neither transferable nor inheritable'. Therefore, in any way if Sh. Avtar Singh, was to claim a right of adverse possession on the ground of continuous possession uninterrupted since July 1991 until May 2003, then as per the above settled proposition of law settled in the case titled P.T. Munichikkanna Reddy & Ors. Vs Revamma & Ors. (2007) 6 SCC 59 wherein the concept of adverse possession, ingredients to determine right of adverse possession and its definition was discussed in detail after taking into consideration of the observation of plethora of judgments on these aspects and it was observed in detail by the Apex Court that 'efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time'.
On the basis of such judicial opinion of the Apex Court in the abovenoted case, it became settled law on adverse possession that if the efficacy of adverse possession law is CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 31 relating to the period of limitation, modern statutes of limitation operate as a 'rule' not only to cutof one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time.
53. In the instant case, Sh. Avtar Singh an employee of the plaintiff's school was in permissive possession as a licensee upto 30.06.1991 and since July 1991 upto his death on 10.05.2003, he continued in possession of the suit premises as he did not handed over the vacant possession to the plaintiff's school after his retirement. The plaintiff's school did not bring action for recovery of property/suit premises until his death. However, PW1 and PW2 through their ocular evidence with the supporting documents i.e. letters Ex. PW1/1 (colly, letter dated 13.06.1991, 10.02.1995, 19.04.2000 and 18.03.2000) have testified that the plaintiff's school administration had given repeated reminders and communications to Sh. Avtar Singh to vacate the suit premises and clear his account with the school.
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54. It is clear that Sh. Avtar Singh, though he was in continuous possession of the suit premises despite the cancellation of his license vide letter dated 13.06.1991 to vacate the premises by 31.07.1991 but he was not in uninterrupted possession by the true owner though a legal action was not brought by the plaintiff's school against him for recovery of possession of the suit premises. But since July 1991 upto May 2003, the time of 12 years of limitation had not expired for the right or title on the basis of adverse possession to be claimed by Sh. Avtar Singh against the true owner and as per the settled proposition of law as held in P.T. Munichikkanna Reddy & Ors' case (Supra) that efficacy of adverse possession law depends on strong limitation statutes by operation of which right to access the court expires through the efflux of time, hence such right did not exist until the expiry of the period of limitation of 12 years.
55. The right of adverse possession of Sh. Avtar Singh has been discussed in the light of the settled proposition of law for the reasons that the defendants whether defendant no. 1 or CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 33 the defendants in all were in use and occupation of the suit premises with him as his dependents and were in co possession of the suit premises with Sh. Avtar Singh who was permitted to possess such suit premises as a licensee of the plaintiff's school being an employee and during the life time of such licensee who continued to possess the suit premises after termination of license, the cooccupier defendants who were occupying such premises in the capacity of the family of Sh. Avtar Singh cannot claim a right of adverse possession during the life time of Sh. Avtar Singh between July 1991 upto May 2003.
Further, it is worth to note that Sh. Avtar Singh who was in permissive use, neither could claim his right of adverse possession on the proposition of limitation of 12 years nor he could claim the possession as adverse and hostile against true owner i.e. the plaintiff's school as the concept of Adverse possession in one sense is based on the theory or presumption "that the owner has abandoned the property to the adverse possessor on the acquiescence of that owner to CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 34 the hostile acts and claims of the person in possession and that it should be open, continuous and hostile" and it is not the case of Sh. Avtar Singh as neither the property was abandoned by the true owner nor it was hostile to it in any manner also he did not suffice the two basic ingredients for claiming adverse possession that :
i). to recognise the title of the person against whom adverse possession was claimed, and
ii). to enjoy the property adverse to the titleholder's interest after making him known that such enjoyment was against his interest.
56. But one thing is clear that during the life time of Sh. Avtar Singh upto 10.05.2003 as the defendants were occupant of suit premises as his family members, the defendants cannot claim right of adverse possession on the suit premises which was given on license to the father of defendant no. 1 & 2 as an employee who was in permissive use.
57. In any sense a premises can not be assumed to be CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 35 allotted to an employee on permanent basis and it could telly with his tenure of service.
Further, it can be assumed that the defendant no. 1, the son of Sh. Avtar Singh could calculate his continuous uninterrupted possession since his birth taken place in that premises during the tenure of service of his father with the plaintiff's school.
58. Obviously, the defendant no. 1 or defendants became independent possessor to succeed to that of Sh. Avtar Singh, in the suit premises only after 10.05.2003 and as the suit was brought in December 2003, by application of provisions of limitation, the right of defendants by way of adverse possession cannot be reckoned to calculate the limitation against the right and action brought by the plaintiff by way of suit for possession in December, 2003.
59. Needless to say that right by way of adverse possession is neither transferable nor inheritable to the defendants from CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 36 Sh. Avtar Singh, the father of defendant no. 1, even if for the sake of argument it is assumed that it calculates since July 1991 for possession with him to continue, by way of transfer or inheritance to his sons i.e. defendant no. 1 or 2 or even to defendant No. 3, his wife, for stretching the period of limitation to be completed for 12 years for them to calculate upto the date of filing of the suit in December 2003. Nor the contention of allotment on permanent basis to Sh. Avtar Singh an employee, could be upheld in the abovenoted circumstances.
60. Thus, it is observed that the contest of the defendants on the basis of their right by way of adverse possession on the operation of limitation is not tenable and the contentions of Ld. Counsel for the defendants that the defendants are claiming their right of possession of suit property by way of adverse possession since July 1991, and that the suit for possession after 12 years reckoned from July 1991, cannot be upheld and is thus, declined.
61. Further, it is observed that the defendants in their written CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 37 statement have taken a plea that only defendant no. 1 is in possession of suit premises as the defendant no. 2 & 3 reside in a separate residence.
During the cross examination of DW1, the defendant no. 1 has admitted that he is an employee of DDA and is receiving HRA (House Rent Allowance) from DDA and is even entitled to get allotted an accommodation on 'priority' basis from DDA, that makes two things clear, one that being an employee of DDA and recipient of HRA from DDA, he was in illegal & unauthorized occupation of the suit premises as he was permitted to stay as a member of the family of Sh. Avtar Singh who was an employee of the plaintiff's school and he continued in the suit premises even after his father Sh. Avtar Singh was in no way connected with the services of the plaintiff's school rather has passed away to the heavenly abode on 10.05.2003 and second thing is that without paying any rent to anyone, he was receiving the House Rent Allowance monthwise from DDA. If he was assuming him to owner by adverse possession then why he was claiming an HRA from DDA.
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62. Thus, the plaintiff has duly established that it is entitled for the recovery of possession of the suit premises, being the licensor of the suit premises that was let out on license basis to Sh. Avtar Singh during his tenure of his employment and as he has retired on 30.06.1991 and expired on 10.05.2003, the plaintiff has established that the license of the licensee Sh. Avtar Singh was terminated vide letter dated 13.06.1991 Ex. PW1/1 vide which he was permitted to stay only upto 31.07.1991 and was directed to handover the peaceful possession of the suit premises but the suit premises was retained by him unauthorizedly.
Therefore, issue no. 1 is decided in affirmative and in favour of plaintiff and against the defendants.
63. ISSUES No. (ii)
(ii) Whether the plaintiff is entitled to the money decree for recovery of mense profit/arrears and/or future mense profit along with interest in view of prayer (ii) & (iii) of the plaint or if so, at what rate, for which period and if yes, then at what interest?
OPP The onus to prove this issue was on the plaintiff. CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 39
64. The plaintiff has claimed that the defendants were in use of occupation of the suit premises unauthorizedly even after the termination of license of Sh. Avtar Singh and even after his retirement since 30.06.1991 and thus claim of the user charges for the 3 years preceeding to the date of filing of the suit in December 2003.
65. In view of my observations on issue no. 1 as Sh. Avtar Singh, the licensee of the plaintiff was in unauthorized use and occupation of the suit premises since the day of his retirement on 30.06.1991 untill his death on 10.05.2003, and the defendants were occupying such suit premises during the period of 31.07.1991 untill 10.05.2003 only in the capacity of the members of the family of Sh. Avtar Singh, said licensee as dependent on him, thus the defendants are not liable for claims of the user charges for which only Sh. Avtar Singh in his personal capacity as an employee (retired), was liable and such liability is also not a transferable liability to his family.
It is worth to note that admittedly Sh. Avtar Singh could CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 40 not avail his retirement benefits as the suit filed by him was failed being barred by limitation, thus equity commands that the plaintiff cannot claim the user charges from the defendants in the capacity of they being the sons or the members of the family of Sh. Avtar Singh, the licensee to whom the suit premises was let out on license basis and they being in co possession with him.
66. Thus, the claim of the plaintiff qua recovery of mense profit / arrears and/or future mense profit along with interest fails.
Accordingly, issue no. (ii) is decided in negative and against the plaintiff.
67. The other authorities relied upon by the plaintiff need no observation or comment as such cases are distinguishably based on absolutely distinguishable facts to that of the instant case, thus, has no application of judicial opinions referred therein to the present case.
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68. Issue No. (viii) Relief In view of the findings on issue nos. (i) to (vii), the plaintiff is entitled for a decree of possession of the suit property, hence the suit of the plaintiff is partly decreed only to the extent of recovery of the possession of the suit property against the defendants.
Accordingly, a decree of possession is passed in favour of the plaintiff and against the defendants, thereby defendants are directed to hand over the peaceful, vacant and actual physical possession of the suit property i.e the servant quarter within the school compound of Modern School, Barakhamba Road, New Delhi, more specifically shown as red colour in the site plan Ex.PW1/2 ( Two pages).
No order as to costs.
Decree sheet be drawn accordingly.
File be consigned to R/Room.
Announced In the open Court (Dr. Archana Sinha) 31 day of January, 2015. Addl. District Judge (Central03) st Tis Hazari Courts/Delhi 31.01.2015 CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 42 Suit No.11/2014 ( Old No. 125/4/2003) Modern School Vs Sh. Bhagwan Singh & Anr.
31.01.2015 Present: Sh. Dheeraj Kaushik, Ld. Counsel for Ms. Raavi Birbal, Ld. counsel for the plaintiff Sh. Pradeep Kumar, Ld. Counsel for Sh. K. S. Rana, Ld. Counsel for the defendant Vide separate detailed judgment of even date announced in the open court today, the suit of the plaintiff is decreed partly only to the extent of recovery of possession of the suit premises.
No orders as to costs.
Decree sheet be drawn accordingly.
File be consigned to R/Room.
(Dr. Archana Sinha) ADJ(Central03), THC, Delhi 31.01.2015 CS No.11/2014 Modern School Vs Bhagwan Singh & Ors. 43