Delhi District Court
Mohd. Sabir vs S.Paramjeet Singh on 17 June, 2021
Mohd. Sabir V. S.Paramjeet Singh
IN THE COURT OF SH. ARUN SUKHIJA,
ADDL. DISTT. JUDGE - 07 (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR NO.:- DLCT01-002873-2015
RCA NO.:- 36/2016
RCA DJ NO.:- 61450/2016
IN THE MATTER OF:-
Mohd. Sabir
S/o Budu Hassan
R/o 1943, Malka Ganj,
Main Road, Subzi Mandi,
Delhi. ...Appellant
Versus
S.Paramjeet Singh
S/o S. Puran Singh
R/o 1943, Malka Ganj,
Main Road, Subzi Mandi,
Delhi. ...Respondent
AND
CNR NO.:- DLCT01-002874-2015
RCA NO.:- 37/2016
RCA DJ NO.:- 61451/2016
IN THE MATTER OF:-
Mohd. Sabir
S/o Budu Hassan
R/o 1943, Malka Ganj,
Main Road, Subzi Mandi,
Delhi. ...Appellant
Versus
S.Paramjeet Singh
S/o S. Puran Singh
R/o 1943, Malka Ganj,
RCA No. 37/2016 Page - 1 of 52
Mohd. Sabir V. S.Paramjeet Singh
Main Road, Subzi Mandi,
Delhi. ...Respondent
APPEAL AGAINST THE IMPUGNED ORDERS DATED
06.06.2015 & 20.01.2016 PASSED BY THE THEN LD. CIVIL
JUDGE-13, TIS HAZARI COURTS, DELHI IN CS
NO.479/14 AND CC NO. 479A/14 TITLED AS S.
PARAMJEET SINGH VS. MOHD. SABIR
Date of institution of the Appeal : 14.07.2015
Date on which Judgment was reserved : 07.04.2021
Date of Judgment : 17.06.2021
::- J U D G M E N T -::
1. The Appellant was defendant/counter-claimant in the suit
and the Respondent was plaintiff/non-counter claimant in
the suit. The appellant and respondent are respectively
referred in this Judgment according to the original status
before the Ld. Trial Court. The Appellant/defendant was
dissatisfied with the Judgment and decree dated
06.06.2015 R/w order dated 20.01.2016 passed by the Ld.
Trial Court. The Ld. Trial Court has decreed the suit of the
respondent/Plaintiff by means of impugned Judgment
dated 06.06.2015 and dismissed the counter-claim of the
appellant/defendant. Vide Order dated 20.01.2016, the Ld.
Trial Court has disposed off the application under Section
152 r/w Section 151 CPC by correcting the mistake in
terms of the said order.
2. The respondent/plaintiff had filed a suit for possession,
damages/mesne profit and permanent injunction against
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Mohd. Sabir V. S.Paramjeet Singh
the appellant/defendant, inter-alia on the following facts
that:-
(A) The plaintiff had purchased the suit property bearing
no. 2780-81(old) new no. 1943-44 area measuring
138 sq. yd. consisting of ground floor and first floor
situated in Malka Ganj, Sabzi Mandi, Delhi from the
registered owner namely Sh. Trilok Nath Gandhi,
S/o Late Sh. Hukum Chand Gandhi vide registered
Sale Deed dated 30.12.2003.
(B) At the time of purchase of the suit property, one
Smt. Satpal Kaur, who was also relative of the
plaintiff, was in possession of the suit property and
she handed-over the possession of the suit property
to the plaintiff on 13.12.2003 itself and the plaintiff
put his lock in the suit property.
(C) On 10.01.2004, the defendant came into the suit
property and removed locks which were put by the
plaintiff and illegally trespassed in the suit property.
The plaintiff came to know about trespassing on
17.01.2004 when he came back to Delhi and he was
surprised and shocked to find that the defendant had
put his locks over the suit property. On inquiry from
the defendant, it came to the notice that the
defendant has allegedly purchased the suit property
from one Sh. Manmohan Singh who was the
husband of Smt. Satpal Kaur who was tenant in the
suit property.
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Mohd. Sabir V. S.Paramjeet Singh
(D) The defendant has not vacated the suit property and
is in illegal occupation of the suit property and
accordingly, the suit has been filed by the plaintiff
for recovery of possession, damages/mesne profits
and permanent injunction.
3. The defendant filed his written statement and counter
claim controverting the claim of the plaintiff and inter-alia
submitted as follows:-
(A) The present suit might be collusive suit which has
been filed by the plaintiff in connivance/collusion
with Sh. Manmohan Singh just to blackmail and
harass the defendant.
(B) Sh. Gokul Chand and Sh. Shiv Singh and his
brother-in-law, Sh. Puran Singh occupied the
property during the period of partition of India and
Pakistan when they came from Pakistan. The suit
property became a custodian property and all the
occupants started paying rent/license fee/lease
money to the Ministry of Rehabilitation.
(C) Smt. Satinder Kaur @ Smt. Satpal Kaur, who is
daughter of Sh. Gokul Singh, who was one of the
occupants of the suit property and was residing near
to the house in question. Sh. Gokul Singh, who was
father of Smt. Satpal Kaur left the suit property in
1983 after locking it and left to Himachal Pradesh to
settle there.
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Mohd. Sabir V. S.Paramjeet Singh
(D) Sh. Manmohan Singh, husband of Smt. Satpal Kaur
broke open the lock of the portion of the suit
property in the month of December, 1983 and
occupied the said portion unauthorizedly and shifted
in the said portion alongwith his family. The
possession of Sh. Manmohan Singh was
unauthorized, hostile and was peaceful and
accordingly, Sh. Manmohan Singh became the
owner of the suit property by adverse possession. As
Sh. Manmohan Singh became the owner of the suit
property by way of adverse possession, the
defendant purchased the super structure of the
portion/plot no. 1943-44 area measuring about 125
sq. yd. vide registered Sale Deed for a total sale
consideration of Rs.2.50 Lakhs.
(E) The plaintiff has filed the suit on the basis of false
and fabricated documents and the plaintiff has no
right, title or interest in the suit property. Other
contents of the plaint were denied except the
admissions made. Accordingly, through the counter-
claim, the defendant/counter-claimant sought the
relief for decree of declaration thereby declaring the
defendant as absolute owner of the portion
measuring about 125 sq. yd., H. No. 1943-44, Malka
Ganj, Sabzi Mandi, Delhi.
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Mohd. Sabir V. S.Paramjeet Singh
The plaintiff has filed Written Statement to the counter-claim and
Replication to the Written Statement to the counter-claim of the
defendant, it was inter-alia averred by the plaintiff that:-
(a) Property bearing no. 1943-44, Malka Ganj, Sabzi Mandi,
Delhi was purchased by one Sh. Hukum Chand Gandhi in
public auction from custodian and certificate of sale was
executed in the name of Sh. Hukum Chand Gandhi and
Ors. and Sh. Hukum Chand Gandhi and Ors. became
owners of the property in question.
(b) The suit property was partitioned by the Order of Hon'ble
High Court of Delhi and Sh. Trilok Nath Gandhi became
absolute owner of the suit property through the Order of
Hon'ble High Court of Delhi and Sh. Trilok Nath Gandhi
has sold the suit property to the plaintiff by executing the
Sale Deed dated 30.12.2003. Sh. Gokul Singh was the
tenant in the suit property and in the year 1983, Sh. Gokul
Singh informed the erstwhile owner Sh. Trilok Nath
Gandhi that he wanted to surrender the tenancy rights in
respect of property in question in favour of his daughter
and accordingly, Smt. Satpal Kaur became the tenant in the
suit property.
4. On the basis of pleadings, following issues were framed
jointly with respect to the suit as well as counter-claim
vide Order dated 12.08.2008:-
ISSUES
(i) Whether the plaintiff is entitled to decree of
possession, as prayed? OPP
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Mohd. Sabir V. S.Paramjeet Singh
(ii) Whether the plaintiff is entitled to recover
damages/mesne profits @ Rs. 4500/- p.m. alongwith
interest @ 18% p.a. from the date of institution of
the suit till possession? OPP
(iii) Whether the plaintiff is entitled to a decree of
permanent injunction, as prayed? OPP
(iv) Whether defendant is entitled to a decree of
declaration in respect of portion measuring 125 sq.
Yds. in H. No. 1943-44? OPCC
(v) Whether defendant is entitled to a decree of
permanent injunction, as prayed? OPCC
(vi) Whether the present suit is barred by non-joinder of
necessary parties? OPD
(vii) Whether proper court fees has been affixed? OPD
(viii) Whether the counter-claim is maintainable, as
defendant has locus standi to file the counter-claim?
OPP
(ix) Relief.
5. In support of his case, the plaintiff has examined himself as
PW1, Sh. P.P. Verma as PW-2, Sh. Sunil Kumar as PW-3,
Sh. Kamlesh Saha as PW-4 and Sh. Inder Kumar as PW-5.
PW-1 has led his evidence by way of affidavit wherein, he
reiterated the contents of the plaint on oath. PW-1 relied
upon certain documents which are marked as under:-
(i) Ex.PW-1/1 is the copy of certificate of Sale
Deed dated 30.04.1996.
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Mohd. Sabir V. S.Paramjeet Singh
(ii) Ex.PW-1/2 is the photocopy of certified copy
of order of Hon'ble High Court of "Delhi.
(iii) Ex.PW-1/3 is the copy of Commissioner's
final report dated 15.04.1976.
(iv) Ex.PW-1/4 is the copy of site plan.
(v) Ex.PW-1/5 is the copy of sale deed dated
30.12.2003.
(vi) Ex.PW-1/6 is the portion shown in red colour
in the site plan.
(vii) Ex.PW-1/7 is the copy of surrender deed.
PW-2 relied upon document Ex.PW-2/1 i.e. Site Plan.
PW-3 relied upon document Ex.PW-3/1 i.e. original Sale
Deed.
PW-4 relied upon the following documents:-
(i) Ex.PW-4/1 is the photocopy of preliminary
decree dated 14.02.1974
(ii) Ex.PW-4/2 is report of the local commissioner
dated 15.04.1976.
(iii) Ex.PW-4/3 is the copy of final decree dated
30.08.1976.
(iv) Ex.PW-4/4 is copy of site plan.
PW-5 relied upon document Ex.PW-5/1 i.e. Deed of
Surrender of tenancy rights and possession.
6. In his defence, the defendant has examined himself as
DW1, Sh. Bhupender as DW-2, Sh. Charan Das as DW-3,
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Mohd. Sabir V. S.Paramjeet Singh
Sh. Siya nand Rathee as DW-4, Sh. Hemant Bhatia as
DW-5. DW-1 has deposed in consonance with the contents
of his WS and relied upon following documents:-
(i) Ex.DW-1/1 is the copy of GPA (OSR).
(ii) Ex.DW-1/2 is the copy of Will dt.09.01.2004 (OSR).
(iii) Ex.DW-1/3 is the copy of agreement dated
09.01.2004 (OSR).
(iv) Ex.DW-1/4 is the copy of affidavit of Sh. Man
Mohan Singh (OSR).
(v) Ex.DW-1/5 is the copy of receipt dt. 09.01.2004
(OSR).
(vi) Ex.DW-1/6 are the original bills (Colly.).
(vii) Ex.DW-1/7 is the birth certificate dt. 23.08.2004.
(viii) Ex.DW-1/8 is the certified copy of plaint in suit no.
173/2001.
(ix) Ex.DW-1/9 is the certified copy of plaint in suit no.
174/2001.
(x) Ex.DW-1/10 is the certified copy of order dt.
16.08.2001 in suit no. 174/2001.
(xi) Ex.DW-1/11 is site plan.
(xii) Ex.DW-1/12 is the birth certificate no. 185784.
(xiii) Ex.DW-1/13 are the two custodian receipts bearing
no. 257341 and 170898 (Colly.).
(xiv) Ex.DW-1/14 is voter application.
(xv) Ex.DW-1/15 is the certified copy of voter list.
DW-2 has relied upon the document Ex.DW-4/1 i.e. copy
of order dated 16.08.2001.
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Mohd. Sabir V. S.Paramjeet Singh
7. The appellant/defendant was aggrieved from the above
said Judgment/Order passed by the Ld. Trial Court and
praying to set aside the same inter-alia on the following
grounds:-
(A) Because the Ld. Court below did not decide the
main controversy regarding the possession
according to Section-101 of the Indian Evidence Act
as to how and when he came in possession of the
suit property. The respondent alleged to have
purchased the suit property on 30.12.2003 when
Smt. Satpal Kaur was already in possession and no
date of her surrendering the possession has been
mentioned in para no. 4 of the plaint filed by the
respondent.
(B) Because the Ld. Court below has failed to appreciate
the fact that the Surrender Deed has been forged and
fabricated subsequently to the filing of the suit as the
fact of Surrender Deed is nowhere mentioned in the
pleadings of the plaint and the parties to the suit
cannot travel beyond the pleadings.
(C) Because the Ld. Court below has further failed to
appreciate the fact that as per respondent, locks were
broken on 10.01.2004 when he was out of station
and came back on 17.01.2004, then, who disclosed
him about the date of trespassing by the appellant.
As per the claim of the respondent, he was in
possession since 30.12.2003 to 10.01.2004, but in
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Mohd. Sabir V. S.Paramjeet Singh
this regard, neither any document nor any oral
evidence has been put forward to prove that the
respondent was even in possession of the suit
property at any point of time.
(D) Because the Ld. Court below has failed to appreciate
the fact that Smt. Satpal Kaur was the only witness
to prove the alleged Surrender Deed and to tell the
Court as to how and when she handed-over the
possession of the suit property to the plaintiff, but
despite the fact that Smt. Satpal Kaur who is the
cousin sister of the respondent, he did not take any
pain to produce her before the Court in the witness
box.
(E) Because the Ld. Court below has failed to appreciate
the fact that if it is proved on record that the
appellant has taken possession with tenant Smt.
Satpal Kaur or Manmohan Singh, then, the
jurisdiction of the Civil Court is barred according to
Section-50 of the Delhi Rent Control Act.
(F) Because the Ld. Court below has failed to appreciate
the fact that the Death Certificate of Manmohan
Singh is already on record and the Court forgot that
Manmohan Singh could not have been produced to
support the case of the appellant.
(G) Because the Ld. Court below has grossly erred and
deviated to the wrong presumption that the
ownership of adverse possession can be declared
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Mohd. Sabir V. S.Paramjeet Singh
while it is settled law that the ownership of adverse
possession cannot be declared. The Ld. Court below
has grossly misunderstood the law of adverse
possession.
(H) Because the Ld. Court below has failed to appreciate
the fact that the appellant has nowhere admitted the
ownership of the said Trilok Nath Gandhi in the
entire pleadings and during the entire trial.
(I) Because the Ld. Court below has grossly failed to
differentiate between the superstructure and land
parameter while for the purpose of ownership, both
are different.
(J) Because the Ld. Court below has grossly and did not
read the documents either of the appellant or the
respondent rather misunderstood the documents of
both the parties in as much as according to Section-
53-A of the Evidence Act, if there is a registered
Agreement to Sell and possession has been
transferred in the part performance then, the
possession is legal and the same has to be protected
by law and the persons so in possession cannot be
termed as a trespasser.
(K) Because the Ld. Court below has wrongly compared
two documents i.e. sale of the respondent and
registered Agreement to Sell of the appellant while
registered agreement to sell of the appellant is with
the possession while the Sale Deed of the respondent
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Mohd. Sabir V. S.Paramjeet Singh
is without any possession. The respondent has
grossly failed to prove on record that he was in
possession of the suit property at any point of time.
(L) Because the Ld. Court below has reached to a wrong
presumption that the rightful owner is entitled to get
the possession of the suit property while in the
present case, the respondent might have a Sale Deed
in his favour but on the hand, the appellant has a
registered agreement to sell and possession in the
suit property and therefore, the claim of the
appellant is stronger and sustainable than the
respondent from any point of view.
(M) Because the Ld. Court below has further grossly
erred in taking the judicial notice regarding the
damages and mesne profits without being aware
about the locality, area, roads and other facility of
that area and wrongly decided the damages @
Rs.4500/- per month on the basis of judicial notice,
which is not at all sustainable in law.
8. In the aforesaid background, the following points for
determination arise for the consideration of the present
case:-
i) Can the order under question be termed as perverse,
capricious and arbitrary?
ii) Does the impugned order run against the legal
framework operating in and principles enunciated in
this sphere?
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Mohd. Sabir V. S.Paramjeet Singh
iii) Does determination of point for determination no.1 or 2
warrants any indulgence or interference of the present
Court with the order appealed against?
iv) What order?
The Ld. Counsels for the parties have argued partly
physically and partly through Video Conference and they have
also filed physical copies of the written submissions.
FINDINGS AND CONCULSIONS OF THE COURT
The Ld. Counsel for Defendant/Appellant has assiduously
argued that the Plaintiff has to stand on its own legs and he
cannot rely upon the weakness of the other side. In order to
buttress the said arguments, the Ld. Counsel for
Defendant/Appellant has relied upon the following Judgments:-
(a) Union of India Vs Vasavi Co-operative Housing Society
Ltd. 2014 2 SCC 269=AIR 2014 SC 937
(b) Maran Mar Basselios Catholics Vs Thukalan Paulo
Avira, AIR 1959 SC 31.
(c) Nagar Palika, Jind Vs Jagat Singh, Advocate (1995) 3
SCC 426.
(d) Punjab Urban Planning & Dev. Authority Vs. Shiv
Saraswati Iron & Steel Re-Rolling Mills 1998 (4) SCC
539= AIR 1998 SC 2352
(e) K. Venkatasubba Reddy Vs Bairagi Ramaiah 1999 (3)
ALD 317 = 1999 (3) ALT 210.
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Mohd. Sabir V. S.Paramjeet Singh
(f) State of West Bengal Vs. Subimal Kumar Mondal, AIR
1982 Calcutta 251.
The first question arises for consideration whether the
plaintiff is required to prove the adverse possession of Shri
Manmohan Singh and thereafter adverse possession of the
defendant, on the principle of tacking, and the answer is negative.
The defendant is required to prove the said aspect. The defendant
cannot be allowed to remain in possession if, the Plaintiff is able
to prove his ownership in the suit property, and the defendant
failed to prove the plea of adverse possession as the suit of the
Plaintiff is based upon the title in terms of Article 65 of the
Schedule appended to the Limitation Act, 1963.
The defendant has not set up the case of tenancy of Smt.
Satpal Kaur and therefore he cannot allege that there is bar under
Section 50 of the Delhi Rent Control Act. The consistent case of
the defendant is that Shri Manmohan Singh has perfected the title
by way of adverse possession. The bar of Section 50 of Delhi
Rent Control Act was required to be set up in the pleading by the
defendant but the defendant had failed to set up the said case and
there is also no issue which was raised by the defendant before
the Ld. Trial Court and now at this stage the said ground of the
defendant is totally after thought and the said plea sans merit and
the same is hereby rejected.
The Ld. Trial Court had decided Issues no. 1, 3, 4, 5 and 8
together as these issues involved common question of facts. First
and foremost question arises for consideration is whether the
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Mohd. Sabir V. S.Paramjeet Singh
plaintiff/respondent became the owner of the suit property in
question as without the same the plaintiff cannot seek the relief of
possession. The Ld. Trial Court has held to the following effect:-
"After hearing the submissions of both the parties and after
going through the evidence and documents filed by both
the parties, it is observed by the court that contention of the
plaintiff w.r.t fact that the suit property was originally
purchased by Sh. Hukum Chand Gandhi from the
custodian in public auction through a sale deed dated
30.04.1966 and the contention that Sh. Trilok Chand
Gandhi inherited the property from his father Sh. Hukum
Chand Gandhi and the Hon'ble High Court of Delhi has
also passed a decree of partition w.r.t suit property in
favour of Sh. Trilok Nath Gandhi and Sh. Trilok Nath
Gandhi sold the suit property to the plaintiff through a
registered sale deed dated 30.12.2003, is not denied by the
defendant. It is also pertinent to mention here that the
defendant has not put any question on the abovementioned
aspects to the plaintiff. It is also pertinent to mention here
that the defendant has not put any question on the
abovementioned aspects to the plaintiff who appeared as
PW− 1. At this stage, court also deem it fit to mention here
the observation made by Hon'ble Justice Rajiv Sahai
Endlaw in Surender Rode Vs. Madan Mohan Rode & Ors
RFA No. 765/2006, wherein it was observed that
non−cross−examination of a witness on a particular aspect
tantamount to the fact that the cross−examining party is
accepting such part of deposition. The relevant para is
quoted here as under for the sake of clarity:−
"27... Not a single question was put to him in cross
examination on the said aspect. The inference in law
from non−cross examination of a witness on a
particular aspect of his deposition is well settled i.e.
that the cross-examining party is deemed to have
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Mohd. Sabir V. S.Paramjeet Singh
accepted the said part of the deposition. Reference in
this regard can be made to Laxmibai (Dead)
Through LR's Vs. Bhagwant Buva (Dead) Through
LR's (2013) 4 SCC 97, Rajinder Pershad (Dead) by
LR's Vs. Darshana Devi (2001) 7 SCC 69 and
judgment dated 19th September, 2013 in RFA
No.411/2000 titled Chanchal Dhingra Vs. Raj Gopal
Mehra..."
From the abovementioned, it is crystallized and unrebutted
that the plaintiff purchased the suit property from the
original owner of the suit property who inherited the same
from his father. It is also pertinent to mention that the
plaintiff has also categorically proved the chain of
ownership of the suit property by exhibiting the copy of
certificate of sale deed dated 30.04.1966 as Ex. PW1/1.
Through the document Ex. PW1/1, the plaintiff has
categorically proved that the suit property was originally
purchased by Sh. Hukum Chand Gandhi and other from
the custodian. The plaintiff also exhibited the judgment
passed by Hon'ble High court of Delhi as Ex. PW1/2, Ex.
PW1/3 and Ex. PW1/4. Through the document Ex. PW1/2,
Ex. PW1/3 and Ex. PW1/4 plaintiff has categorically
proved that the decree for partition was passed in favour of
Sh. Trilok Nath w.r.t the suit property. The plaintiff also
exhibited the registered sale deed dated 30.12.2003 as Ex.
PW1/5. Through the document Ex. PW1/5, the plaintiff has
categorically proved that he purchased the suit property
from Sh. Trilok Nath Gandhi, who inherited the suit
property from his father and also got the partition decree in
his favour. Accordingly, it is clear that the plaintiff has
purchased the suit property from an original owner of the
suit property."
The Ld. Counsel for Plaintiff/Respondent has also relied
upon the Judgment of O.P. Aggarwal & Anr. Vs. Akshay Lal and
Ors. 188 (2012) DLT 525 passed by our own Hon‟ble High
Court. The Plaintiff/Respondent has relied upon the following
relevant portion of para No.7:-
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Mohd. Sabir V. S.Paramjeet Singh
".....I do not agree with the trial Court that it was
necessary that the executants of such documents had
necessarily be summoned to prove these documents in
as much as if what the trial Court hold is accepted, it
will be necessary to prove the chain of title deeds
running into decades all earlier owners have to be
summoned. This is not required to be done. Once
documents pertaining to rights in the property, and
such documents being original documents and also
registered documents, are filed and proved on record,
the onus of proof that such documents are not genuine
documents, in fact, shifts to the opposite party....."
(Portions bolded in order to highlight)
This Court is of the considered view that aforesaid findings
of the Ld. Trial Court was arrived after taking into consideration
entire evidence of the parties and this Court does not find any
infirmity to the said findings. Accordingly, plaintiff has proved
on record that vide Sale deed dated 30.12.2003, the plaintiff
became the owner of the property.
Now, second important and foremost question, arises for
consideration is whether the defendant can claim adverse
possession on the principle of tacking by means of documents
Ex.DW1/1 to Ex.DW1/5. To tack means "to fasten", "to stitch
together", "to annex" or "to append". In view of the principle of
tacking, if, someone derives a title from a person in adverse
possession he can tack the period of adverse possession enjoyed
by earlier person. Thus, a person can usefully claim for the
purpose of his adverse possession even the adverse possession of
his predecessor from whom he derives right. However, a
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Mohd. Sabir V. S.Paramjeet Singh
trespasser cannot tack adverse possession of earlier trespasser,
since second trespasser does not derive possession from earlier
trespasser. The same is held by Constitution Bench of the
Supreme Court in the case of Gurbinder Singh & another Vs.
Lal Singh & another (AIR 1965 SC 1553).
It is admitted case of the Defendant that he came in possession
of the property in question only on 09.01.2004 and the present
suit was filed on 11.02.2004 i.e. just over a period of one month
from date of possession of the defendant/Appellant in the suit
property. Therefore, the defendant/Appellant cannot take
advantage of the principle of "adverse possession" until and
unless he shows that the aforesaid documents are valid
documents in order to claim title from the earlier owner i.e. Shri
Manmohan Singh, who alleged to be in adverse possession and
perfected his right by way of adverse possession. The
Appellant/Defendant is not successors in interest in view of the
inheritance law. The Appellant/Defendant is claiming that Shri
Manmohan Singh became the owner by way of adverse
possession and he has purchased the property from him and for
this reason he can claim the adverse possession against the
Plaintiff/Respondent. The principles of transfer of ownership in
terms of Transfer of Property Act would equally apply in order to
claim the principle of tacking or in order to claim the ownership
by way of adverse possession. The defendant has relied upon the
following documents in order to claim rights ownership by way
of adverse possession on the principle of tacking:-
(1) Registered General Power of Attorney dated 09.01.2004;
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Mohd. Sabir V. S.Paramjeet Singh
(2) Registered Will dated 09.01.2004;
(3) Notarized Agreement to sell dated 09.01.2004;
(4) Notarized Affidavit dated 09.01.2004;
(5) Notarized Receipt dated 09.01.2004.
It is apposite to refer the Judgment passed by Hon‟ble
Supreme Court in Special Leave Petition (C) no.13917 of 2009
titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State Of Haryana
& Anr. decided on October 11, 2011.
"Scope of an Agreement of sale
"11. Section 54 of TP Act makes it clear that a contract of
sale, that is, an agreement of sale does not, of itself, create
any interest in or charge on such property. This Court in
Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3
SCC 247, observed:
A contract of sale does not of itself create any interest in,
or charge on, the property. This is expressly declared in
Section 54 of the Transfer of Property Act. See Rambaran
Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The
fiduciary character of the personal obligation created by a
contract for sale is recognised in Section 3 of the Specific
Relief Act, 1963, and in Section 91 of the Trusts Act. The
personal obligation created by a contract of sale is
described in Section 40 of the Transfer of Property Act as
an obligation arising out of contract and annexed to the
ownership of property, but not amounting to an interest or
easement therein."
"In India, the word „transfer‟ is defined with reference to
the word „convey‟. The word „conveys‟ in section 5 of
Transfer of Property Act is used in the wider sense of
conveying ownership... ...that only on execution of
conveyance ownership passes from one party to
another...."
"In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra
[2004 (8) SCC 614] this Court held:
RCA No. 37/2016 Page - 20 of 52
Mohd. Sabir V. S.Paramjeet Singh
"Protection provided under Section 53A of the Act to the
proposed transferee is a shield only against the transferor.
It disentitles the transferor from disturbing the possession
of the proposed transferee who is put in possession in
pursuance to such an agreement. It has nothing to do with
the ownership of the proposed transferor who remains full
owner of the property till it is legally conveyed by
executing a registered sale deed in favour of the transferee.
Such a right to protect possession against the proposed
vendor cannot be pressed in service against a third party."
"It is thus clear that a transfer of immoveable property by
way of sale can only be by a deed of conveyance (sale
deed). In the absence of a deed of conveyance (duly
stamped and registered as required by law), no right, title
or interest in an immoveable property can be transferred.
"12. Any contract of sale (agreement to sell) which is not a
registered deed of conveyance (deed of sale) would fall
short of the requirements of sections 54 and 55 of TP Act
and will not confer any title nor transfer any interest in an
immovable property (except to the limited right granted
under section 53A of TP Act). According to TP Act, an
agreement of sale, whether with possession or without
possession, is not a conveyance. Section 54 of TP Act
enacts that sale of immoveable property can be made only
by a registered instrument and an agreement of sale does
not create any interest or charge on its subject matter.
The aforesaid dictum vividly postulates that the Agreement to
Sale/Sell/GPA etc. do not confer any right, title or interest in the
property. The defendant is also not entitled to benefit of Section
53A of the Transfer of Property Act. I have profit to refer paras
No.38 and 39 of the Judgment passed by Hon‟ble Division in
RFA (OS) 117/2015 titled Anuj Chopra And Ors. Versus Vaneeta
Khanna And Ors decided on 25.5.2016:
RCA No. 37/2016 Page - 21 of 52
Mohd. Sabir V. S.Paramjeet Singh
"38. Section 17(1A) of the Registration Act provides as
follows:
"17. Documents of which registration is
compulsory (1) The following documents shall be
registered, if the property to which they relate is
situate in a district in which, and if they have been
executed on or after the date on which, Act No. XVI
of 1864, or the Indian Registration Act, 1866, or the
Indian Registration Act, 1871, or the Indian
Registration Act, 1877 or this Act came or comes
into force, namely:-
instruments of gift of immovable property;
****** ******** *****
"(1A) The documents containing contracts to
transfer for consideration, any immovable property
for the purpose of section 53A of the Transfer of
Property Act, 1882 (4 of 1882 ) shall be registered if
they have been executed on or after the
commencement of the Registration and Other
Related Laws (Amendment) Act, 2001 and if such
documents are not registered on or after such
commencement, then, they shall have no effect for
the purposes of the said section 53A
****** ******** *****
49. Effect of non-registration of documents required
to be registered.-- No document required by Section
17 or by any provision of the Transfer of Property
Act, 1882 to be registered shall-
(a) affect any immovable property comprised
therein,
(b) confer any power to adopt, or
(c) be received as evidence of any transaction
affecting such property or conferring such power;
unless it has been registered:
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Mohd. Sabir V. S.Paramjeet Singh
Provided that an unregistered document affecting
immovable property and required by this Act or the
Transfer of Property Act 1882, to be registered may
be received as evidence of a contract in a suit for
specific performance under Chapter II of the
Specific Relief Act, 1877, or as evidence of part
performance of a contract for the purposes of
Section 53A of the Transfer of Property or as
evidence of any collateral transaction not required
to be effected by registered instrument."
Section 53A of the Transfer of Property Act, 1882 reads as
follows:
"53A. Part performance.--Where any person
contracts to transfer for consideration any
immoveable property by writing signed by him or on
his behalf from which the terms necessary to
constitute the transfer can be ascertained with
reasonable certainty, and the transferee has, in part
performance of the contract, taken possession of the
property or any part thereof, or the transferee, being
already in possession, continues in possession in
part performance of the contract and has done some
act in furtherance of the contract, and the transferee
has performed or is willing to perform his part of the
contract, then, notwithstanding that 2[***] where
there is an instrument of transfer, that the transfer
has not been completed in the manner prescribed
therefor by the law for the time being in force, the
transferor or any person claiming under him shall
be debarred from enforcing against the transferee
and persons claiming under him any right in respect
of the property of which the transferee has taken or
continued in possession, other than a right expressly
provided by the terms of the contract: Provided that
nothing in this section shall affect the rights of a
transferee for consideration who has no notice of the
contract or of the part performance thereof."
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Mohd. Sabir V. S.Paramjeet Singh
"39. The judgment in Som Dev v. Rati Ram AIR 2006 SC
788 holds that after the coming into force of the
Registration and Other Related Laws (Amendment) Act,
2001, all documents, "containing contracts to transfer for
consideration in immovable property for the purpose of
Section 53A of the Transfer of Property Act shall be
registered if they have been created after commencement of
sub-section 1A (of Section 17) of the Transfer of Property
Act. (sic)" The effect of this amendment - on a joint
reading of Section 17 (1A), Section 49 of the
Registration Act and Section 53A of the Transfer of
Property Act-is that the claim to title on the basis of
part performance - under Section 53A of the Transfer
of Property Act is untenable if the Agreement to Sell is
unregistered. In the present case, the Agreement to Sell
executed by Judge Chawla in favour of Vaneeta
Khanna, first plaintiff clearly did not create any legal
right and could not have been even considered; in any
event it created no rights under Section 53A and could
not have been brought on record by virtue of Section 49
of the Registration Act."
(Portions bolded in order to highlight)
The legislature in its wisdom has amended Section 53-A of
Transfer of Property Act and it came to force on 24-9-2001. The
protection under section 53A can be availed of only under a
registered agreement. Section 53-A of the T.P. Act before
amendment recognized part performance of the contract even
though the contract used to be unregistered and the transferee‟s
rights to remain in possession was protected. By the Amendment
Act No.48 of 2001, the words "the contract though required to be
registered, has not been registered, or" have been omitted from
the provision. The effect of the amendment is that now if any
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Mohd. Sabir V. S.Paramjeet Singh
person takes possession in pursuance to a contract which is
required to be registered but has not been registered, the
transferee has no right to remain in possession of the property. To
give effect to this principle, Section 17 (1A) has accordingly been
inserted in the Registration Act of 1908, which mandates that
such contract is now required to be registered. If such a contract
entered into after the amendment is not registered then as per
Section 49 of the Act of 1908, the same can neither affect any
immovable property comprised therein nor will it be received as
evidence of any transaction affecting such property or conferring
such power. No person can avail the protection unless the
aforesaid requirements were completed in all respect.
I have also profit to refer relevant portion of Judgment of
Shri SURESH KUMAR Versus KAVITA GURNANI & ORS. in
RFA No.78/2019 decided on 30.01.2019 passed by our own
Hon‟ble High Court:-
"......It need not be gainsaid that ownership of an
immovable property can only be taken by means of a
registered document by virtue of Section 17(1)(b) of the
Registration Act, 1908, and if rights are claimed under
an agreement to sell encompassing the doctrine of part
performance, then such an agreement to sell had to be
a registered agreement to sell bearing proportionate
stamp duty as is clear from Amendment of Section 53A
of the Transfer of Property Act, 1882 by Act 48 of 2001
with effect from 24.09.2001 read with the provisions of
Section 17(1A) of the Registration Act which was
brought in and which prevented any document in the
nature of an agreement to sell from being looked into
under Section 53A of the Transfer of Property Act,
unless such a document was registered and stamped
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Mohd. Sabir V. S.Paramjeet Singh
with stamp duty of 90% of the consideration of the sale
value of the property...."
(Portions bolded in order to highlight)
The Agreement to Sell, as relied upon by the
Defendant/Appellant, is an unregistered and under-stamped
document and there is no Sale Deed which was executed by Shri
Manmohan Singh in favour of Defendant/Appellant. From the
discussion as adumbrated hereinabove, the alleged
Agreement/GPA/Affidavit/Receipt- Exhibits DW-1/1, Exhibit
DW-1/3 to DW-1/5 even assumed to be executed by Shri
Manmohan Singh do not confer any alleged ownership right, title
and interest in the property in question based upon the principle
of adverse possession.
The Ld. Counsel for the appellant/defendant has argued
that Sh. Manmohan Singh has also executed registered Will dated
09.01.2004 and it is admitted case of the parties that during the
proceedings of the aforesaid case, Sh. Manmohan Singh was
expired. It is argued by the Ld. Counsel for appellant/ defendant
that after the death of Sh. Manmohan Singh "Will" became
operative and the defendant/appellant can claim the rights of
adverse possession based upon the aforesaid Will (Exhibit DW-
1/2). Mere registration of the Will does not means that the same
is not required to be proved in accordance with Law. I have also
to profit to refer the Judgment by our Hon‟ble High Court in the
case titled as MANMOHAN (DECEASED) THROUGH LR'S
& ANR. Versus BALDEV RAJ & ORS decided on 18th
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Mohd. Sabir V. S.Paramjeet Singh
November 2013 in RFA 450/2010. The paras No.13 to 22 are
reproduced herein for apt understanding:-
"13. A Bench of two Judges of the Supreme Court in
Pentakota Satyanarayana supra undoubtedly held
that the signatures of the Registering Officer and of
the identifying witnesses affixed to the registration
endorsement on a Will are sufficient attestation
within the meaning of Section 68 of the Evidence
Act. It was held that the endorsement by the Sub
Registrar that the executants have acknowledged
execution before him also amounts to attestation; the
signatures of the executants and of the identifying
witnesses are taken by the Sub Registrar and
thereafter the Sub Registrar signs the document; this
aspect introduces an element of solemnity in the
decision of the question as to whether the document
propounded is proved or not.
14. Though the senior counsel for the respondents /
plaintiffs was satisfied with the proposition of law
laid down in Pentakota Satyanarayana supra and
chose only to distinguish the same on facts but
finding the proposition laid down therein to be out
of the ordinary and in conflict with Section 63 of the
Succession Act, 1975, I have looked further and find
that a Bench of three Judges of the Supreme Court,
as far back as in M.L. Abdul Jabbar Sahib Vs. M.V.
Venkata Sastri and Sons (1969) 1 SCC 573, though
not in the context of a Will, to have held that the
essential conditions of a valid attestation under
Section 3 of the Transfer of Property Act, 1882 are,
(1) that the attesting witnesses have seen the
executant sign the instrument or have received from
him a personal acknowledgment of his signature
and; (2) that they have put their signatures on the
document with a view to attest or to bear witness to
this fact, in the presence of the executant. It was
emphasized that it is essential that the witness
should have put his signature animo attestandi, i.e.
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Mohd. Sabir V. S.Paramjeet Singh
for the purpose of attesting that he has seen the
executant sign or has received from him a personal
acknowledgment of his signature. It was yet further
held that if the person puts his signature on the
document for some other purpose, e.g., to certify
that he is a scribe or as an identifier or a registering
officer, he is not an attesting witness. Reliance was
placed on Girja Datt Singh Vs. Gangotri Datt
Singh A.I.R. 1955 SC 346 also by a Bench of three
Judges, holding that the two persons who had
identified the testator at the time of the registration
of the Will and had appended their signatures at the
foot of the endorsement by the Sub-Registrar, were
not attesting witnesses as their signatures were not
put animo attestandi. It was yet further held after
examining the provisions of The Indian Registration
Act, 1908 that the registering officer puts his
signature on the document in discharge of his
statutory duty and not for the purpose of attesting it
or certifying that he has received from the executant
a personal acknowledgment of his signature and thus
cannot be recorded as an attesting witness.
15. The aforesaid view was re-affirmed in Dharam
Singh Vs. Aso 1990 Supp (1) SCC 684, also of a
three Judges Bench.
16. The question again came up in Bhagat Ram Vs.
Suresh (2003) 12 SCC 35 before a bench of two
Judges. After noticing the earlier judgments in
Dharam Singh & M.L. Abdul Jabbar Sahib
(supra), it was held that in those cases, the Registrar
had signed the document in discharge of his
statutory duty and the evidence adduced in those
cases did not show the registering officer having
signed the document with the intention of attesting it
or that the registering officer signed it in the
presence of the executant. However, finding that in
the facts and circumstances of some other judgments
of the High Court of Punjab and Haryana, it had
been held that the Registrar may fulfil the character
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Mohd. Sabir V. S.Paramjeet Singh
of an attesting witness if on entering into the witness
box as required by Section 68 of the Evidence Act,
he proves by his testimony the execution of
document by deposing to have witnessed himself the
proceedings as contemplated by Section 63 of the
Succession Act, he can be a attesting witness and it
was further held that the certificate of registration
under Section 60 of the Registration Act raises a
presumption under Section 114 (e) of the Evidence
Act that the Registrar had regularly performed his
duty and therefore the facts spelled out by the
endorsement made under Section 58 and 59 of the
Registration Act may be presumed to be correct
without formal proof thereof. It was further held that
the Registrar of Deeds who has registered a
document in discharge of his statutory duty, does not
become an attesting witness to the deed solely on
account of his having discharged the statutory duty
relating to the registration of a document; however,
a Registrar can be treated as having attested to a
Will if his signature or mark appears on the
document akin to the one placed by an attesting
witness and he has seen the testator sign or affix his
mark to the Will or has received from the testator a
personal acknowledgement of his signatures. It was
thus held, that to be an attesting witness, the
Registrar should have attested the signature of
testator in manner contemplated by Section 63(c) of
Succession Act. It was yet further held that a
Registrar of Deeds before he can be termed as an
attesting witness shall have to be called in the
witness box and the Court must feel satisfied by his
testimony that what he did satisfies the requirement
of being an attesting witness.
17. Unfortunately, the aforesaid earlier judgments
were not noticed in Pentakota Satyanarayana and
even though a reading of the said judgment does not
show the registering officer to have been summoned
as a witness in that case, the Registrar was held to be
an attesting witness.
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Mohd. Sabir V. S.Paramjeet Singh
18. In the aforesaid state, I am unable to accept the
proposition as laid down in Pentakota
Satyanarayana that mere registration of a Will
makes the Registrar an attesting witness and even
without being examined in the Court, the factum of
registration can be a proof of valid attestation of the
Will.
19. I also find another two Judge Bench of the
Supreme Court in Benga Behera Vs. Braja Kishore
Nanda (2007) 9 SCC 728 to have, faced with the
question whether a certificate by Sub Registrar at the
time of registration proved attestation, held that in
view of Sections 52 & 58 of the Registration Act the
only duty cast on the Registering authority is to
endorse on the Will, i.e. to endorse only the
admission of execution by the person who presented
the document for registration; the compliance with
that provision leads to the legal presumption that the
document was registered and nothing else; if an
authority in performance of a statutory duty signs a
document, he does not become an attesting witness
within the meaning of Section 3 of the Transfer of
Property Act, 1882 and Section 63 of the Succession
Act; to „attest‟ is to bear witness to a fact; "animus
attestandi" is a necessary ingredient for proving the
attestation; if a person puts his signature on a
document only in discharge of his statutory duty, he
may not be treated to be an attesting witness. No
doubt the earlier judgment in Pentakota
Satyanarayana was not noticed.
20. The view taken in Benga Behera supra is also in
consonance with M.B. Ramesh supra which holds
that Section 71 of the Evidence Act which permits a
party to lead other evidence in certain circumstances
cannot be read to absolve a party of his obligation
under Section 68 of the Evidence Act r/w Section 63
of the Succession Act and that aid of Section 71 can
be taken only when the attesting witnesses deny or
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Mohd. Sabir V. S.Paramjeet Singh
fail to recollect execution of the document, to prove
it by other evidence and not when the attesting
witness has failed to prove the execution of the Will.
21. I may with respect add, that a Will under Section
41 of the Registration Act when presented for
registration by the testator is registrable in the same
manner as any other document. Sections 32 to 35
prescribe the procedure for registration of
documents and permit presentation of a document
for registration not only by the person executing the
document but also by the representative or attorney
of such person and the Registrar is only required to
satisfy that they admit its execution. The
requirements of Section 63 of the Succession Act are
different. The Will is required to be attested by two
or more witnesses, each of whom seen the testator
sign and who have themselves signed in the
presence of and at the direction of the testator at the
same time. An admission by the person signing the
Will and by the witnesses of having signed the Will
is not an admission of the fulfilment of the
conditions of Section 63 of the Evidence Act; more
importantly, the Registrar cannot be said to be
signing "at the direction of the testator". The said
requirement of Section 63(c) has not been discussed
in Pentakota Satyanarayana.
22. In the facts of the present case, though the
appellants / defendants had summoned a witness
from the office of the Sub-Registrar to prove the
factum of registration, but have not examined the
Registrar who has registered the document. In the
absence of his testimony satisfying the conditions of
proof of Will, he cannot be considered as an
attesting witness. The argument of the counsel for
the appellants / defendants of the Will having been
proved under Section 68 of the Act, has thus but to
be rejected."
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Mohd. Sabir V. S.Paramjeet Singh
The Will was witnessed by Sh. Charan Dass S/o. Sh. Babu Lal
and Sh. Suresh S/o. Sh. Bhagwan Dass. The defendant has
examined Shri Charan Dass as DW-3 and his testimony reveals
that he was Property Dealer for about 10 years from the date of
his deposition. The perusal of his evidence by way of affidavit
reveals that he has not even deposed the mandatory principles as
required under Section 63(c) of the Indian Succession Act, 1925.
The requirements of Section 63(c) of the Indian Succession Act,
1925 are as follow:-
"63. Execution of unprivileged wills.-Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, or
an airman so employed or engaged, or a mariner at sea, shall
execute his will according to the following rules:--
(a)xxxxx
(b)xxxxx
(c) The will shall be attested by two or more witnesses, each
of whom has seen the testator sign or affix his mark to the
will or has seen some other person sign the will, in the
presence and by the direction of the testator, or has received
from the testator a personal acknowledgment of his
signature or mark, or of the signature of such other person;
and each of the witnesses shall sign the will in the presence
of the testator, but it shall not be necessary that more than
one witness be present at the same time, and no particular
form of attestation shall be necessary."
(Portions bolded in order to highlight)
The testimony of DW-3 has even failed to satisfy the basic
requirements of law as envisaged in the aforesaid law. The
defendant has also failed to prove the alleged Will in accordance
with law.
As per admitted case of the defendant, he came into
possession on 09.01.2004. The plaintiff had filed the suit on
11.02.2004 i.e. just a period above one month when the defendant
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Mohd. Sabir V. S.Paramjeet Singh
came into possession of the property. Considering the aforesaid
facts and circumstances, the defendant even cannot take the
advantage of the principle of tacking for claiming the "adverse
possession" as his possession in the property was barely for one
month when the suit was filed by the Plaintiff/Respondent against
him.
The Ld. Counsel for the Defendant/Appellant has also
argued that the Plaintiff is also required to seek declaration of the
title in view of Anathula Sudhakar Vs P. Buchi Reddy, 2008(4)
SCC 594 and further the Plaintiff has failed to seek the relief of
declaration or cancellation of documents as relied upon by the
defendant for the purpose of claiming ownership by way of
adverse possession.
The Plaintiff has been claiming the relief on the basis of
Sale Deed dated 30.12.2003 and the defendant was claiming
right, title and interest on the basis of adverse possession of Shri
Manmohan Singh and principle of tacking in view of documents
dated 09.1.2004 alleged to be executed between Shri Manmohan
Singh and defendant. The claim of the defendant was under the
cloud and not of the plaintiff. The Plaintiff by means of more
than sufficient evidence has proved on record his ownership by
way of Sale Deed dated 30.12.2003 and it is further proved that
the same was done by rightful owner. The documents dated
09.01.2004 were executed after the date of 30.12.2003 and the
said documents were at best can be used for the purpose of
claiming adverse possession on the principle of tacking as the
said documents were not executed by person who had right, title
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Mohd. Sabir V. S.Paramjeet Singh
and interest in the suit property. The defendant would be able to
succeed and dislodge the case of the plaintiff if, the defendant
would be able to prove the principles of adverse possession qua
Manmohan Singh and thereafter the documents dated 09.01.2004
in order to claim the adverse possession on the principle of
tacking. This Court has already held that defendant on the basis
of the aforesaid documents dated 09.01.2004 cannot take the
advantage of principle of tacking and this Court is of the
considered view that there‟s no need to seek cancellation of the
documents dated 09.01.2004 by the Plaintiff. Further, in view of
the principle of priority in terms of Section 48 of the Transfer of
Property Act, 1882 the document of the Plaintiff is prior in time
and the documents dated 09.01.2004 in favour of the defendant
carries no weight. Accordingly, the aforesaid argument of Ld.
Counsel for the defendant/appellant also sans merit and the is
hereby rejected.
De-hors, the finding on the principle of tacking, now, the
question arises whether Sh. Manmohan Singh himself was in
adverse possession of the property in question. In order to
understand the principle of adverse possession this court is
discussing the same under the following caption.
PRINCIPLES OF ADVERSE POSSESSION:
I have also profit to refer Paras No.15 to 21 of the Hon‟ble
Supreme Court Of India in case of Bangalore Development
Authority Versus N. Jayamma decided on MARCH 10, 2016 in
CIVIL APPEAL NO. 2238 OF 2016:-
"15. Coming then to the question whether the plaintiffs-respondents
could claim adverse possession, we need to hardly mention the well
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Mohd. Sabir V. S.Paramjeet Singh
known and oft quoted maxim nec vi, nec clam, nec precario
meaning thereby that adverse possession is proved only when
possession is peaceful, open, continuous and hostile. The
essentials of adverse possession were succinctly summed-up by this
Court in Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC
779 in the following words:
"11.In the eye of the law, an owner would be deemed to be
in possession of a property so long as there is no intrusion.
Non-use of the property by the owner even for a long time
won't affect his title. But the position will be altered when
another person takes possession of the property and
asserts a right over it. Adverse possession is a hostile
possession by clearly asserting hostile title in denial of the
title of the true owner. It is a well-settled principle that a
party claiming adverse possession must prove that his
possession is "nec vi, nec clam, nec precario", that is,
peaceful, open and continuous. The possession must be
adequate in continuity, in publicity and in extent to show
that their possession is adverse to the true owner. It must
start with a wrongful disposition of the rightful owner
and be actual, visible, exclusive, hostile and continued
over the statutory period. (See S.M. Karim v. Bibi Sakina
(AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375
and D.N. Venkatarayappa v. State of Karnataka (1997) 7
SCC 567). Physical fact of exclusive possession and the
animus possidendi to hold as owner in exclusion to the
actual owner are the most important factors that are to be
accounted in cases of this nature. Plea of adverse
possession is not a pure question of law but a blended one
of fact and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came into
possession, (b) what was the nature of his possession, (c)
whether the factum of possession was known to the other
party, (d) how long his possession has continued, and (e)
his possession was open and undisturbed. A person
pleading adverse possession has no equities in his favour.
Since he is trying to defeat the rights of the true owner, it
is for him to clearly plead and establish all facts necessary
to establish his adverse possession. [Mahesh Chand
Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128)."
"16. Reference may also be made to the decision of this Court in
Saroop Singh v. Banto (2005) 8 SCC 330, where this Court
emphasised the importance of animus possidendi and observed:
"29. In terms of Article 65 the starting point of limitation
does not commence from the date when the right of
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Mohd. Sabir V. S.Paramjeet Singh
ownership arises to the plaintiff but commences from the
date the defendant's possession becomes adverse. (See
Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak
(2004) 3 SCC 376).
30. "Animus possidendi" is one of the ingredients of
adverse possession. Unless the person possessing the land
has the requisite animus the period for prescription does
not commence. As in the instant case, the appellant
categorically states that his possession is not adverse as
that of true owner, the logical corollary is that he did not
have the requisite animus. (See Mohd. Mohd. Ali v.
Jagadish Kalita (2004) 1 SCC 371, SCC para 21.)"
"17. Also noteworthy is the decision of this Court in Mohan Lal v.
Mirza Abdul Gaffar (1996) 1 SCC 639, where this Court held that
claim of title to the property and adverse possession are in terms
contradictory. This Court observed:
"4. As regards the first plea, it is inconsistent with the
second plea. Having come into possession under the
agreement, he must disclaim his right thereunder and
plead and prove assertion of his independent hostile
adverse possession to the knowledge of the transferor or
his successor in title or interest and that the latter had
acquiesced to his illegal possession during the entire
period of 12 years, i.e., up to completing the period of his
title by prescription nec vi, nec clam, nec precario. Since
the appellant's claim is founded on Section 53-A, it goes
without saying that he admits by implication that he came
into possession of the land lawfully under the agreement
and continued to remain in possession till date of the suit.
Thereby the plea of adverse possession is not available to
the appellant."
"18. To the same effect is the decision of this Court in Annasaheb
Bapusaheb Patil v. Balwant (1995) 2 SCC 543, where this Court
elaborated the significance of a claim to title viz.-a-viz. the claim to
adverse possession over the same property. The Court said:
"15. Where possession can be referred to a lawful title, it
will not be considered to be adverse. The reason being
that a person whose possession can be referred to a lawful
title will not be permitted to show that his possession was
hostile to another's title. One who holds possession on
behalf of another, does not by mere denial of that other's
title make his possession adverse so as to give himself the
RCA No. 37/2016 Page - 36 of 52
Mohd. Sabir V. S.Paramjeet Singh
benefit of the statute of limitation. Therefore, a person
who enters into possession having a lawful title, cannot
divest another of that title by pretending that he had no
title at all."
"19) After taking note of the principle of law relating to adverse
possession in the aforesaid manner, this Court commented about the
erroneous approach of the High Court in the following manner:
"19. The Courts below have not seen the plaintiff
respondent's claim from the above perspectives. The High
Court has, in particular, remained oblivious of the principle
enunciated in the decisions to which we have referred herein
above. All that the High Court has found in favour of the
plaintiffs is that their possession is established. That,
however, does not conclude the controversy. The question is
not just whether the plaintiffs were in possession, but
whether they had by being in adverse possession for the
statutory period of 12 years perfected their title. That
question has neither been adverted to nor answered in the
judgment impugned in this appeal. Such being the case
the High Court, in our opinion, erred in dismissing the
appeal filed by the appellant-BDA. The fact that the
plaintiffs had not and could not possibly establish their
adverse possession over the suit property should have
resulted in dismissal of the suit for an unauthorised
occupant had no right to claim relief that would
perpetuate his illegal and unauthorized occupation of
property that stood vested in the BDA."
"20) In addition to the discussion contained in M. Venkatesh case
noted above, we may also add what was held in P.T. Munichikkanna
Reddy & Ors. v. Revamma & Ors. 15 (2007) 6 SCC 59:
"5. 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. (See Downing v. Bird;
Arkansas Commemorative Commission v. City of Little Rock;
Monnot v. Murphy; and City of Rock Springs v. Sturm)."
"21) In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors. 16
(2013) 6 ADJ 119, the Allahabad High Court has observed as under:
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Mohd. Sabir V. S.Paramjeet Singh
"21. The principle of adverse possession and its
consequences wherever attracted has been recognized in the
statute dealing with limitation. The first codified statute
dealing with limitation came to be enacted in 1840. The Act
14 of 1840 in fact was an enactment applicable in England
but it was extended to the territory of Indian continent which
was under the reign of East India Company, by an authority
of Privy Council in the East India Company v. Oditchurn
Paul, 1849 (Cases in the Privy Council on Appeal from the
East Indies) 43.
xx xx xx
"23. The law of Prescription prescribes the period at the
expiry of which not only the judicial remedy is barred but
a substantive right is acquired or extinguished. A
prescription, by which a right is acquired, is called an
'acquisitive prescription'. A prescription by which a right
is extinguished is called 'extinctive prescription'. The
distinction between the two is not of much practical
importance or substance. The extinction of right of one
party is often the mode of acquiring it by another. The
right extinguished is virtually transferred to the person
who claims it by prescription. Prescription implies with
the thing prescribed for is the property of another and
that it is enjoyed adversely to that other. In this respect it
must be distinguished from acquisition by mere
occupation as in the case of res nullius. The acquisition in
such cases does not depend upon occupation for any
particular length of time."
(Portions bolded in order to highlight)
This Court has also profit to refer paras No.20 to 23 of the
Judgment passed by the Hon‟ble Supreme Court in CIVIL
APPEAL No.83 OF 2008 in case titled as Dagadabai(Dead) by
L.Rs. VERSUS Abbas @ Gulab decided on April 18, 2017:-
"20) Fourth, the High Court erred fundamentally in observing in
Para 7 that, "it was not necessary for him (defendant) to first
admit the ownership of the plaintiff before raising such a plea".
"21) In our considered opinion, these observations of the High
Court are against the law of adverse possession. It is a settled
principle of law of adverse possession that the person, who
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Mohd. Sabir V. S.Paramjeet Singh
claims title over the property on the strength of adverse
possession and thereby wants the Court to divest the true owner
of his ownership rights over such property, is required to prove
his case only against the true owner of the property. It is equally
well-settled that such person must necessarily first admit the
ownership of the true owner over the property to the knowledge
of the true owner and secondly, the true owner has to be made a
party to the suit to enable the Court to decide the plea of adverse
possession between the two rival claimants.
"22) It is only thereafter and subject to proving other material
conditions with the aid of adequate evidence on the issue of
actual, peaceful, and uninterrupted continuous possession of the
person over the suit property for more than 12 years to the
exclusion of true owner with the element of hostility in asserting
the rights of ownership to the knowledge of the true owner, a
case of adverse possession can be held to be made out which, in
turn, results in depriving the true owner of his ownership rights
in the property and vests ownership rights of the property in the
person who claims it.
"23) In this case, we find that the defendant did not admit the
plaintiff's ownership over the suit land and, therefore, the issue
of adverse possession, in our opinion, could not have been tried
successfully at the instance of the defendant as against the
plaintiff. That apart, the defendant having claimed the
ownership over the suit land by inheritance as an adopted son of
Rustum and having failed to prove this ground, he was not
entitled to claim the title by adverse possession against the
plaintiff."
(Portions bolded in order to highlight)
I have also profit to refer paras 3, 9 and 16 of the Judgment
passed by the Hon‟ble Supreme Court in CIVIL APPEAL NO.
190 OF 2020 in the case title as Shri Uttam Chand (D) Through
Lrs. Versus Nathu Ram (D) Through Lrs. & ors on 15.01.2020:-
"......3. The defendants in the written statement denied that the
plaintiff is the owner of the property. The defendants asserted
that their house existed on the property in question for more
than the last two centuries. The grandfather of the defendants
was said to be in possession of the property as owner, thereafter
their father one Tara Chand and now all the defendants are in
RCA No. 37/2016 Page - 39 of 52
Mohd. Sabir V. S.Paramjeet Singh
possession of the property as owners. It was denied that the
property was ever vested with the Managing Officer and,
therefore, it was claimed that the Managing Officer has no
authority or jurisdiction to auction the property in question.
Therefore, the plaintiff has no interest, right or title in the
property.
9. Learned counsel for the appellant argued that for a successful plea
of adverse possession against the true owner, the person in
possession has to admit hostile possession to the knowledge of the
true owner. The defendants in their written statement have not
admitted the title of the appellant and of adverse possession to the
knowledge of the true owner. The defendants have denied vesting of
the land with the Managing Officer and the subsequent sale in favour
of the appellant. The trial court has returned a finding as to the title
of the appellant itself and such finding has not been set aside neither
by the First Appellate Court nor by the High Court. The defendants
are asserting their long and continuous possession but such
possession howsoever long cannot be termed as adverse possession
so as to perfect title within the meaning of Article 65 of the
Limitation Act. It was argued that long possession is not necessarily
adverse possession. Reliance is placed upon Karnataka Board of
Wakf v. Government of India & Ors. (2004) 10 SCC 779, Kurella
Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma alias
Nacharamma (2008) 15 SCC 150 and Dagadabai (Dead) by Legal
Representatives v. Abbas alias Gulab Rustum Pinjari(2017) 13
SCC 705.
16. In the present case, the defendants have not admitted the
vesting of the suit property with the Managing Officer and the
factum of its transfer in favour of the plaintiff. The defendants
have denied the title not only of the Managing Officer but also of
the plaintiff. The plea of the defendants is one of continuous
possession but there is no plea that such possession was hostile to
the true owner of the suit property. The evidence of the
defendants is that of continuous possession. Some of the receipts
pertain to 1963 but possession since November, 1963 till the
filing of the suit will not ripe into title as the defendants never
admitted the plaintiff-appellant to be owner or that the land ever
vested with the Managing Officer. In view of the judgments
referred to above, we find that the findings recorded by the High
Court that the defendants have perfected their title by adverse
possession are not legally sustainable. Consequently, the
judgment and decree passed by the High Court is set aside and
the suit is decreed. The appeal is allowed."
(Portions bolded in order to highlight)
RCA No. 37/2016 Page - 40 of 52
Mohd. Sabir V. S.Paramjeet Singh
The Ld. Counsel for the Plaintiff/Respondent has relied upon
paras No.10 and 11 of the Judgment of Hansraj Vs. Jagminder
Singh and Ors. 2017(8) AD(Delhi) 483 passed by our own High
Court and the same are reproduced as under:-
"10. In the present case, on behalf of the
appellant/defendant, evidence to claim adverse possession
from the year 1985 as pleaded by the appellant/defendant
till the date of filing of the suit on 3.7.2012, is in the form of
four documents. These four documents are Ex.DW1/1 to
Ex.DW1/8, and which documents are referred to in para 8
of the impugned judgment of the trial court and which para
reads as under:-
"8. In response, the defendant has examined himself as DW-
1 and proved on record his affidavit in evidence as DW1/A
and copy of health card of child as Ex.DW1/1; sterilization
certificate of Nirmala Ex.DW1/2; copy of ration card and
election card as Ex.DW1/3 & Ex.DW1/4, respectively;
School Leaving Certificate of his two sons as Ex.DW1/5 &
Ex.DW1/6 respectively; copy of electricity bills and
passbook of gas connection as Ex.Dw1/7 and Ex.DW1/8
respectively. Defendant has also examined Sh. Khajan Singh
as DW-2 who was cross examined."
11. In my opinion, the aforesaid documents, the first of
which begins in terms of the ration card of the year 1992
only shows possession of the appellant/defendant of the suit
premises. As already stated above, mere possession, and
even long possession is not equal to claim of adverse
possession. Adverse possession must begin by assertion of a
claim of title in the suit property as against the true owner
of the property. There is no evidence which is led on behalf
of the appellant/defendant of hostile assertion of title
whether by seeking mutation of the property in the local
authority records to show the appellant/defendant as the
owner or even payment of the property tax or filing of
income tax returns or letting out of the property to a tenant
etc etc. Therefore, in my opinion, the court below has
rightly held that the appellant/defendant has failed to prove
his plea of adverse possession.
(Portions bolded in order to highlight)
RCA No. 37/2016 Page - 41 of 52
Mohd. Sabir V. S.Paramjeet Singh
FINDINGS AND CONCLUSIONS OF THE COURT
It is the case of the defendant that Sh. Manmohan Singh in
December, 1983, broke open the locks of Gokul Chand and
trespassed in the suit property and his possession was adverse to
the possession of Sh. Trilok Nath Gandhi. First of all, the perusal
of written statement reveals that defendant/appellant has not
admitted Sh. Trilok Nath Gandhi as owner of the property. It is
well settled Law as also mentioned hereinabove that in order to
claim adverse possession, the defendant has to first of all admit
the ownership of earlier owner(s). Sh. Trilok Nath Gandhi has
sold the property to the plaintiff. The plaintiff became the owner
of the property by means of Sale deed dated 30.12.2003. The said
Sale Deed was prior to the documents dated 09.01.2004. It is
apposite to refer the „notice‟ in terms of provision of Section 3 of
Transfer of Property Act, 1882:-
"a person is said to have notice' of a fact when he actually
knows that fact, or when but for wilful abstention from
an inquiry or search which he ought to have made, or
gross . negligence, he would have known it.
Explanation 1. -Where any transaction relating to
immovable property is required by law to be and has
been effected by a registered instrument, any person
acquiring such property or any part of, or share or
interest in, such property shall be deemed to have
notice of such instrument as from the date of
registration or, where the property is not all situated in
one sub-district, or where the registered instrument has
been registered under Sub-section (2) of section 30 of the
Registration Act, 1908, (XVI of 1908) from the earliest
date on which any memorandum of such registered
instrument has been filed by any Sub-Registrar within
whose sub-district any part of the property which is being
RCA No. 37/2016 Page - 42 of 52
Mohd. Sabir V. S.Paramjeet Singh
acquired, or of the property wherein a share or interest is
being acquired, is situated:
Provided that-
(1) the instrument has been registered and its
registration completed in the manner prescribed by
the Registration Act, 1908, (XVI of 1908). and-the
rules made thereunder,
(2) the instrument '[or memorandum] has been duly
entered or filed, as the case may be, in books kept
under section 51 of that Act, and
(3) the particulars-regarding the transaction to which
instrument relates have been correctly entered in the
indexes kept under section 55 of that Act.
(Portions bolded in order to highlight)
In terms of Section 3 of the Transfer of Property Act, the
defendant ought to have notice of the registered document in
favour of the plaintiff, at the time of alleged purchase of the suit
property from Shri Manmohan Singh. The defendant/appellant
was in the knowledge of fact that the plaintiff is claiming his
right, title and interest in the property in question by means of
Sale Deed dated 30.12.2003 and he became owner of the
property after purchasing the same from Sh. Trilok Nath Gandhi.
Paras no. 1 & 2 of reply on merit of the written statement reveals
that defendant has denied the ownership of Shri Triloki Nath
Gandhi and also of the plaintiff in the property in question. In
terms of the aforesaid dictums of the Hon‟ble Apex Court in
order to claim adverse possession, the defendant was required to
admit ownership of the plaintiff but on the contrary the defendant
has not only denied the ownership of plaintiff but also of Sh.
Trilok Nath Gandhi. The defendant was applying the principle of
RCA No. 37/2016 Page - 43 of 52
Mohd. Sabir V. S.Paramjeet Singh
tacking for claiming the adverse possession but he has miserably
failed to admit the ownership of Shri Triloki Nath Gandhi and
also of the Plaintiff.
This Court has already endorsed the findings of the Ld.
Trial Court and has categorically held that the perusal of record
reveals that Sh. Trilok Nath Gandhi was owner of the property
and thereafter, the plaintiff was owner of property by means of
Sale Deed dated 30.12.2003. In view of the aforesaid dictums of
the Hon‟ble Apex Court, the defendant has not even pleaded the
basic fundamental elements and requirements of principle of
adverse possession. Furthermore, the perusal of record reveals
that none of the evidence produce by the defendant was relate
back to the year to 1983, when it is claimed by the defendant that
Sh. Manmohan Singh had broken the locks in 1983. There is
neither any documentary nor Oral evidence to support the said
contention. Even the documents (i.e. Exhibit DW-1/1 to DW-1/5)
do not reveals the said fact and the said documents are totally
silent how and when Manmohan Singh became the owner of the
suit property by means of alleged claim of adverse possession.
DW-1 has admittedly seen the property in question for the
first time in the year 2003. None of the other defendant‟s witness
has stated that locks were broken by Sh. Manmohan Singh in
their presence. The Ld. Trial Court, regarding the issue of adverse
possession, has held as under:-
"......Now coming to the contention of the defendant w.r.t. the suit
property; it is contention of the defendant that he purchased the suit
property from one Sh. Man Mohan Singh. It is contention of the
defendant that Sh. Manmohan Singh entered into the suit property
after breaking open the lock of the suit property in the year 1983 and
since then is residing in the suit property and the possession of the
RCA No. 37/2016 Page - 44 of 52
Mohd. Sabir V. S.Paramjeet Singh
Sh. Manmohan Singh was unauthorised, hostile and peaceful. It is
contention of the defendant that Sh. Manmohan Singh became the
owner of the suit property through adverse possession and he
purchased the suit property from Sh. Manmohan Singh through
registered sale deed dated 09.01.2004. The document w.r.t the
purported transaction of the suit property exhibited as Ex. DW1/1 to
DW1/5. Perusal of the documents Ex. DW1/1, it is observed by the
Court that nowhere in the document Ex. DW1/1, it is observed as to
how Sh. Manmohan Singh became the owner of the suit property. It
is only in the 3rd para of the document Ex. DW1/1 that it is
mentioned that Sh. Manmohan Singh is absolute and sole owner of
the suit property, however, nowhere in the document DW1/1, it has
been written as to how Sh. Manmohan Singh became the so called
absolute and sole owner of the suit property. Perusal of document
Ex. DW1/2, it is again revealed that it is only written that Sh.
Manmohan Singh is owner of the super structure of the suit property,
however, nowhere in the document Ex. DW1/1, it has been written
as to how Sh. Manmohan Singh became the owner of the suit
property. Further perusal of documents, it is observed by the Court
that in document Ex. DW1/3 also nowhere it has been mentioned
that as to how Sh. Manmohan Singh was the sole owner of the suit
property. In document exhibited as Ex. DW1/4 and Ex. DW1/5 also
nowhere mentioned as to how Sh. Manmohan Singh was the owner
of the suit property.
From the abovementioned documents Ex DW1/1 to Ex.
DW1/5, it is clear that nowhere in the documents, the basis of
alleged ownership of the suit property in favour of the defendant, has
been mentioned and the plea of adverse possession has for the first
time taken through the written statement. At this stage, Court deem it
fit to mention here that the defendant has not produced Sh.
Manmohan Singh to substantiate and prove that he became the
owner by way of adverse possession of the suit property. It is also
pertinent to mention here that there is no decree or declaration in
favour of Sh. Manmohan Singh to substantiate that he was owner of
the suit property by way of adverse possession. It is also observed by
the Court that the defendant in his cross examination as DW1 had
categorically admitted that there was no sale deed or order of the
Court or decree in favour of Sh. Manmohan Singh w.r.t. ownership
of the suit property. It is also pertinent to mention here that the
defendant in his cross examination as DW1 has not denied the fact of
ownership of the suit property in favour of Sh. Trilok Nath Gandhi.
The relevant para is quoted here as under for the sake of clarity:−
"...It is correct that there was no sale deed of the suit property
in the name of Sh. Manmohan Singh. It is correct that I did
not see any court order or decree pertaining to the ownership
of the suit property in the name of Sh. Manmohan Singh. I do
RCA No. 37/2016 Page - 45 of 52
Mohd. Sabir V. S.Paramjeet Singh
not know as to whether Mr. Trilok Nath Gandhi was the
owner/landlord of the suit property..."
It is further observed by the Court that in his examination in chief
through affidavit, it is averred by the defendant that Sh. Manmohan
Singh broken the lock of the suit property in the month of December,
1983 and occupy the portion and Sh. Manmohan Singh became the
owner of the suit property through adverse possession. The relevant
para is quoted here as under for the sake of clarity:−
"... That Sh. Man Mohan Singh, husband of Mrs. Satpal Kaur
@ Satinder Kaur, daughter of Sh. Gokul Singh being the son
in law of Sh. Gokul Singh broke open the lock of the portion
shown in red colour in the month of December, 1983 and
occupied the said potion unauthorizedly and shifted in the
said portion along with his family...
...That thus with the span of time, Sh. Man Mohan Singh
became the owner in adverse possession of the portion of the
property, in question and its super structure by way of
unauthorised uninterrupted, hostile, declared and peaceful
possession...".
It is further observed by the Court that in his cross examination as
DW1, it was categorically averred by the defendant that Sh.
Manmohan Singh was husband of Smt. Satpal Kaur and firstly Sh.
Satpal Kaur shifted to the suit property and then her husband Sh.
Manmohan Singh also came to reside in the suit property. The
relevant para is quoted here as under for the sake of clarity:−
"...It is correct that Mr. Manmohan Singh was the husband of
Ms. Satpal Kaur. It is correct that Ms. Satpal Kaur shifted to
suit property then her husband Mr. Manmohan Singh also
came to reside in the suit property..."
After going through the above quoted averments of the DW− 1, it is
clear that there is material contradiction in the averments of the
defendant to the effect that on the one hand, it is averred by the
defendant as DW−1 that Sh. Manmohan Singh broke open the lock
of the suit property and entered into the suit propriety unauthorisedly
and Sh. Manmohan Singh became the owner of the suit property by
way of adverse possession; on the other hand, it is averred by the
defendant as DW− 1 that it was Ms. Satpal kaur who shifted in the
suit property and later on husband of the defendant namely Sh. Man
Mohan Singh came to reside in the suit property. So, it is clear that
contention of the defendant that Sh. Manmohan Singh was the owner
of the suit property by way of adverse possession is nothing but a
baseless contention and plea.
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Mohd. Sabir V. S.Paramjeet Singh
It is also pertinent to mention here that the defendant has not
produced Sh. Man Mohan Singh to substantiate the fact that Sh. Man
Mohan Singh became the owner of the suit property by way of
adverse possession. It is pertinent to mention here that none of the
documents by which defendant purchased the suit property from Sh.
Man Mohan Singh has any endorsement to the effect that Sh Man
Mohan Singh was the owner of the suit property on the basis of
adverse possession or any other basis.
From the abovementioned discussion, it is crystallized that the
defendant has allegedly purchased the suit property from a person
who has no right, title or interest in the suit property. It is also
pertinent to mention here that the defendant, for the reasons best
known to him has not tried to verify the ownership of Sh. Man
Mohan Singh from whom he allegedly purchased the suit property. It
is trite that a person cannot transfer a better title in the suit property
then he himself has.
In the present matter, as discussed above, Sh. Man Mohan Singh was
not having any right, title or interest in the suit property so he cannot
transfer a title or interest in the suit property. It is pertinent to
mention here that in the present matter, the defendant chooses to
remain negligent and has made no efforts to verify the right, title or
interest of Sh. Man Mohan Singh in the suit property which is duly
reflected from the fact that alleged documents exhibited as Ex.
DW−1/1 to Ex. DW−1/5 do not found any mention as to basis of
ownership of Sh. Man Mohan Singh w.r.t the suit property. It is
settled principle that if a person chooses to remain negligent and
proceed further w.r.t. transaction then he has to face consequences
attached with the transaction......"
This Court does not find any infirmity in the aforesaid
findings of the Ld. Trial Court. From the detailed discussions
made hereinabove, the defendant has utterly failed to prove that
Shri Man Mohan Singh and/or the defendant have perfected their
title by way of adverse possession. Accordingly, the defendant
has absolutely no right, title and interest whatsoever in the suit
property and he has no right to stay in the property as the Plaintiff
has been able to prove that he has right, title and interest in the
property by means of Sale Deed dated 30.12.2003 and he is
RCA No. 37/2016 Page - 47 of 52
Mohd. Sabir V. S.Paramjeet Singh
claiming the right in the suit property based upon the title.
Further, this Court of the considered opinion that the Ld. Trial
Court has also granted mesne profits at a very reasonable rate and
the same also does not call for any interference.
ON THE APPLICATION UNDER ORDER 41 RULE 27 CPC
The Defendant/Appellant has also filed an application inter-alia
on the following averments:-
(a) The whole controversy revolves amount Smt. Satpal Kaur who was
wife of Shri Manmohan Singh. The case of the respondent is that
Smt. Satpal Kaur was the tenant in the suit property surrendered her
tenancy rights in favour of respondent/plaintiff.
(b) That earlier, Smt. Satpal Kaur was not available to lead her evidence
despite the fact she never surrendered here tenancy nor executed any
document rather her husband was in possession of the suit property
and sold the same to the appellant and handed over the possession to
the appellant.
(c) Smt. Satpal Kaur may be permitted to testify herself for sake of
determining the real question in controversy between the parties. The
appellant has made his best efforts to produce her in witness box but
since she is a housewife and whenever appellant approached here, he
could not meet him as her son every time refused to allow the
appellant. Now she is ready to depose before this Hon‟ble Court with
the absolute truth regarding the suit property and is also filing her
affidavit in this regard. Her testimony is very essential.
The said application is vehemently opposed by Respondent/
Plaintiff inter-alia on the following averments:-
(a) The application is not maintainable. There is no averment in the
application that despite due diligence, the evidence was not in the
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Mohd. Sabir V. S.Paramjeet Singh
knowledge of the Appellant and further there is no averment in
the application that despite due diligence, the appellant could not
produce Smt. Satpal Kaur.
(b) Smt. Satpal Kaur was not named as one of the witnesses in the
List of witnesses filed by the Appellant. The appellant had no
intention to examine her as witness and as such the application is
liable to be dismissed.
(c) The defence in the written statement was Shri Manmohan Singh
was the owner of the property by way of adverse possession and
sold the property to the defendant and as such she is not required
to be examined for any purpose.
In order to understand the Principles of Additional
Evidence as prescribed under Order 41 Rule 27 CPC, I have
profit to refer the latest Judgment of the Hon‟ble Supreme Court
passed in Civil Appeal No.2176 of 2007 titled as Jagdish Prasad
Patel (Dead) thr. Lrs.& Another Versus Shivnath & Others
decided on 09.04.2019. Relevant portion of paras no.28 and 29
are reproduced herein for apt understanding:-
"28. Under Order XLI Rule 27 CPC, production of additional
evidence, whether oral or documentary, is permitted only under three
circumstances which are: (I) Where the trial Court had refused to
admit the evidence though it ought to have been admitted; (II) the
evidence was not available to the party despite exercise of due
diligence; and (III) the appellate Court required the additional
evidence so as to enable it to pronounce judgment or for any other
substantial cause of like nature. An application for production of
additional evidence cannot be allowed if the appellant was not
diligent in producing the relevant documents in the lower court.
However, in the interest of justice and when satisfactory reasons are
given, court can receive additional documents.
29. In Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC
148, this Court held as under:-
RCA No. 37/2016 Page - 49 of 52
Mohd. Sabir V. S.Paramjeet Singh
"36. The general principle is that the appellate court
should not travel outside the record of the lower court
and cannot take any evidence in appeal. However, as an
exception, Order 41 Rule 27 CPC enables the appellate
court to take additional evidence in exceptional
circumstances. The appellate court may permit additional
evidence only and only if the conditions laid down in this
Rule are found to exist. The parties are not entitled, as of
right, to the admission of such evidence. Thus, the
provision does not apply, when on the basis of the
evidence on record, the appellate court can pronounce a
satisfactory judgment. The matter is entirely within the
discretion of the court and is to be used sparingly. Such a
discretion is only a judicial discretion circumscribed by
the limitation specified in the Rule itself. (Vide K.
Venkataramiah v. A. Seetharama Reddy AIR 1963 SC 1526,
Municipal Corpn. of Greater Bombay v. Lala Pancham AIR
1965 SC 1008, Soonda Ram v. Rameshwarlal (1975) 3 SCC
698 and Syed Abdul Khader v. Rami Reddy (1979) 2 SCC
601.)
37. The appellate court should not ordinarily allow new
evidence to be adduced in order to enable a party to raise
a new point in appeal. Similarly, where a party on whom
the onus of proving a certain point lies fails to discharge
the onus, he is not entitled to a fresh opportunity to
produce evidence, as the court can, in such a case,
pronounce judgment against him and does not require
any additional evidence to enable it to pronounce
judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal
and Mohd. Ali and Co. (1978) 2 SCC 493)
.......
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document \does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal."
(Portions bolded in order to highlight) The Ld. Counsel for the Plaintiff/Respondent is correct that the defendant was having no intention to examine Smt. Satpal RCA No. 37/2016 Page - 50 of 52 Mohd. Sabir V. S.Paramjeet Singh Kaur as witness before the Ld. Trial Court and he has not even cited her as witness before the Ld. Trial Court. The basic defence of the defendant is principle of Tacking and adverse possession and the same have been dealt hereinabove in detail. The defendant has not even pleaded the basic requirements for proving the principle of adverse possession in terms of the aforesaid dictums of the Hon‟ble Apex Court. The perusal of the affidavit of Smt. Satpal Kaur annexed with the application also reveals that even in the said affidavit basic requirements of adverse possession are not mentioned. In the said affidavit, Smt. Satpal Kaur has failed to even depose that how and when Shri Manmohan Singh became owner by way of adverse possession. The "adverse possession" is not a magical word. The basic elements, requirements and fundamental principles are required to prove in order to claim the benefit of "adverse possession". The evidence which the appellant/defendant want to produce by way of application is totally afterthought and in order to cover up the lacunae which is not permissible in the eyes of law. Furthermore, this Court is of the considered opinion that evidence of Smt. Satpal Kaur is not necessary for pronouncing the judgment.
On the touchstone of the principles as expounded by Hon‟ble Apex Court in relation to the application under Order 41 Rule 27 CPC, the application is totally meritless and the same deserves to be dismissed and accordingly dismissed and the Appeals of the defendant/Appellant are also totally meritless and the same deserves to be dismissed.
RCA No. 37/2016 Page - 51 of 52
Mohd. Sabir V. S.Paramjeet Singh
RELIEF:
In view of the discussions, as adumbrated above, I hereby pass the following ::-FINAL ORDER -::
(A) The application under Order 41 Rule 27 CPC is hereby dismissed.
(B) The Appeals of the Defendant/Appellant are also hereby dismissed.
(C) The parties shall bear their own respective costs.
Decree-sheet in the Appeal be prepared accordingly, in terms of this Judgment.
Two sets of the Judgment have been prepared and both set has been signed in original and one set of the Judgment has been kept in each Appeal.
The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of the Ld. Trial Court. Appeal file be consigned to record room after due compliance. Announced through Video Conferencing on this 17th Day of June, 2021.
ARUN Digitally signed by
ARUN SUKHIJA
SUKHIJA Date: 2021.06.17
12:41:14 +05'30'
(ARUN SUKHIJA)
ADJ-07 (Central)
Tis Hazari Courts, Delhi
RCA No. 37/2016 Page - 52 of 52