Delhi District Court
Smt. Maya Devi vs Anarkali on 6 July, 2017
IN THE COURT OF SHRI SANJAY SHARMAI :
ADDL. DISTRICT JUDGE - 02 (EAST DISTRICT)
KARKARDOOMA COURTS : DELHI
Civil Suit No. 775/2016
Smt. Maya Devi
W/o late Shri Om Prakash Verma
R/o 1776, Katra Narain Dass,
Kweens Road, Chandni Chowk
Delhi - 110 006 ................Plaintiff
Versus
Anarkali
R/o X26, Street No. 10,
Brahmpuri, Village Ghonda
Chayuhan Khadar,
Delhi - 110 053
2nd Address :
House No. 392, Gali No. 1,
(Near Geeta Bhawan)
Bhola Nath Nagar, Shahdara
Delhi - 110 032 ................Defendant
Date of institution : 23.5.2014
Date of reserving judgment : 08.6.2017
Date of judgment : 06.7.2017
J U D G M E N T :
The plaintiff has preferred the present suit seeking
possession of property No. X26, Street No. 10, BlockX, Brahm Puri,
Village Ghonda , Khasra No. 721, Chauhan Khadar, Delhi - 110 053,
(hereinafter referred to as suit property), alongwith recovery of use and
occupation charges @ Rs.5000/ per month for the period 18.3.2010 to
Civil Suit No. 775/2016 1 of 12
17.7.2010 and mesne profits.
2. In brief, the facts as averred in the plaint are that the plaintiff
is the owner of the suit property which was purchased by her on
07.5.1996from Shri Raja Ram vide registered sale deed and she constructed four feet boundary wall over it with one entry door, to save and specify the property. Husband of the plaintiff used to visit the suit property but after his death, the plaintiff could not visit there. On 18.3.2010, brotherinlaw (Jeth) of the plaintiff namely Shri Prayag Narayan visited the suit property and found that the defendant had forcibly and illegally occupied 2025 sq. yards land of the suit property by illegally constructing a jhuggi over there and had also broken the boundary wall. When the plaintiff went there and requested the defendant to remove the illegal construction of the jhuggi, she started quarrelling with her and also used abusive language. Plaintiff called the police at 100 number and on its arrival, plaintiff showed them the sale deed of the suit property but the police did not take any action against the defendant. Hence, the plaintiff has filed the present suit claiming possession of the suit premises, use and occupation charges of four months' @ Rs. 5000/ per month during which the defendant resided there illegally, alongwith mesne profits @ Rs.5000/ per month and prayed for the suit to be decreed in terms of her prayer.
3. Summons of the suit were served upon the defendant who put in her appearance and filed the WS, wherein she claimed that she had been residing in the suit property for the last more than 30 years and had been tethering her own horse, tonga and cows and shegoats and thus, its possession has become hostile to the plaintiff. It was further claimed by Civil Suit No. 775/2016 2 of 12 the defendant that Shri Diwan Singh - who is the father of Shri Raja Ram, was not having any sale deed or title in his name for the suit property and therefore, he had no right to authorize his son Shri Raja Ram to execute sale deed in favour of the plaintiff and the plaintiff, by way of forged and fictitious document dt. 13.5.1996, wants to establish her claim over the suit property. The defendant also denied the other allegations and claims of the plaintiff and prays for the dismissal of the suit.
4. The plaintiff did not file the replication to the WS.
5. The plaintiff moved an application under Order 6 Rule 17 CPC and amended the plaint thereby correcting the municipal number of the suit property from X28 to X26. The said amendment was allowed vide order dt. 25.5.2011. An amended WS was also filed by the defendant to the amened plaint.
6. From the pleadings of the parties, following issues were framed on 15.7.2011 :
ISSUES :
1). Whether the plaintiff is entitled to a decree for possession? OPP
2). Whether the plaintiff is also entitled to recover dues and occupational charge, if any? If so, at what rate? OPP
3). Whether the plaintiff is entitled to recover mesne profit from the defendant w.e.f.
18.7.2010 till handing over the possession? If, so, then at what rate? OPP
4). Whether the suit has not been properly valued by the plaintiff for the purpose of court fee and jurisdiction? OPD
5). Whether the suit of the plaintiff is without any cause of action? OPD Civil Suit No. 775/2016 3 of 12
6). Whether the defendant is entitled to take the benefit of the doctrine of adverse possession as claimed? OPD
7). Relief.
7. The plaintiff led her evidence and examined herself as PW1 and proved the facts as stated in the plaint. She relied upon various documents as mentioned in her affidavit. She also examined PW2 SI Vikrant Sharma from PS New Usmanpur who was the Investigating Officer of FIR No. 231/2010 and proved its copy. Plaintiff further examined her jeth Shri Prayag Narain as PW3. She also examined Shri Mokhtar Mahto - Record Keeper and Shri Anup Singh - UDC/Record Keeper, both in the Office of SubRegistrarII, Kashmere Gate, Delhi as PW4 and PW5 respectively.
8. The defendant examined herself as DW1 and deposed the facts as averred by her in her written statement. She too relied upon various documents as mentioned in her affidavit. She also examined Shri Hari Prasad, a resident near the suit property, as DW2 and closed the evidence. All the above witnesses were duly crossexamined.
9. I have heard Shri Naveen Kumar Goyal - Ld. Counsel for the plaintiff, Shri SK Sharma - Ld. Counsel for the defendant and have also gone through the written arguments filed on behalf of the defendant as well as records of the case. My issue wise findings are as under :
ISSUE No.1 and 6 :
10. The plaintiff has claimed ownership of the suit property measuring 200 sq. yards on the strength of a sale deed executed in her favour dt. 27.5.1966. The registration of the sale deed has been proved by PW4 and PW5. During crossexamination it was put to PW4 that the suit Civil Suit No. 775/2016 4 of 12 property bears registration date as 27.5.1986 but he denied and asserted that it was 27.5.1966. He was confronted with the letter of SubRegistrar II, Janakpuri, dt. 09.6.2010 Mark PW4/D1 where the date of registration was mentioned as 27.5.1986, but he could not comment anything upon it. The said letter was never proved on record nor the writer of the said letter was ever examined in Court by either of the parties. PW5 had proved the sale deed in their record in favour of the plaintiff and there was no cross examination of this witness regarding the date of execution of the sale deed. The original sale deed is on record and clearly bears the date of the registration as 13.5.1966. Thus, the argument of the Ld. Counsel for the defendant that the sale deed was not properly registered or is a fictitious document or is of 1986 could not be established or proved. The sale deed on record is of the year 1966 and is a document which is more than 30 years old.
11. According to Section 90 of the Indian Evidence Act, where any document, purporting or proved to be 30 years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signatures and every other part of such document which purports to be in the handwriting of any particular person, is in that person's handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
12. The sale deed in question has been brought and proved from the custody of the SubRegistrar who is an authorized person/custodian of such documents and therefore, in terms of Section 90 of the Indian Evidence Act, the execution of the sale deed cannot be disputed nor can Civil Suit No. 775/2016 5 of 12 be challenged and it is presumed to be correct. Similarly, the arguments that the executant of the sale deed namely Shri Raja Ram had no authority to execute the sale deed can also not be accepted at this stage simply on the ground that the previous chain of documents ending on Shri Raja Ram were not produced. It is also to be born in mind that the defendant is claiming the title of a suit property not on the basis of any document in her favour but only on the plea of adverse possession. Hence, there is no hesitation in holding that the plaintiff is the actual registered owner of the suit property.
13. It was also argued by Ld. Counsel for the defendant that the suit property has not been properly identified, its boundaries have not been mentioned and the site plan is contrary to the sale deed. However, contrary to the argument, I find that the site plan filed alongwith the plaint is in consonance with the boundaries of the suit property as mentioned in the sale deed Ex.PW1/2. When the defendant herself has also claimed the same suit property, its identification cannot be disputed by her.
14. Ld. Counsel for the defendant vehemently argued that the plaintiff is not even aware about the municipal number of the suit property and in all the documents including the FIR got registered by her against the defendant and in various other complaints made by her on record, as well as in the original plaint, she mentioned the municipal number of the suit property as X28 instead of X26. This argument has no force on two grounds. When the suit property is clearly identifiable and has not been disputed by the defendant who is also otherwise claiming her title over it, the wrong mention of the municipal number Civil Suit No. 775/2016 6 of 12 would have no effect. Even otherwise, when the plaintiff was permitted to amend the plaint thereby correcting the municipal number, without any challenge to the said order, this argument becomes redundant and would hold no ground.
15. It is, thus, clear that the plaintiff is the actual registered owner of the suit property as shown in the site plan . The only defence raised by the defendant is that she has become the owner of the suit property by way of adverse possession . The plaintiff has claimed that the defendant has occupied only 2025 sq. yards of the suit property out of the total area of 200 sq yards, whereas the defendant is claiming the ownership by adverse possession of the entire 200 sq. yards of the property. Hence, it has to be appreciated whether the defendant has been able to prove her plea of adverse possession .
16. The defendant claims that she is in possession of the suit property for the last about 30 years but has failed to place on record any documentary evidence to that effect. Even in her crossexamination she admitted that she has no document to show that she is in possession of the suit property for the last 30 years or any documentary proof of her possession therein prior to the year 2010. She further admitted that no electricity meter or water connection has been installed in the suit property but a hand pump was installed there about 25 years back . However, she never deposed that it was got installed by her. She could not prove or show any act done by her on the suit property prior to 2010 to show her continued possession . She only examined one witness DW2 who deposed that he had seen the defendant residing in the suit property for the last more than 30 years and using and enjoying it by tethering her Civil Suit No. 775/2016 7 of 12 animals. In his crossexamination , DW2 deposed that the property of Shri Prayag Narain , brotherinlaw of the plaintiff and examined as PW3, is adjacent to the suit property. It is the case of the plaintiff that after the death of her husband she had not visited the suit property. According to PW3, he observed the defendant in possession of the 2025 sq. yards of the suit property on his visit there on 18.3.2010. Had he noticed the possession or occupation of the defendant on any part of the suit property earlier, he would have definitely informed about it to the plaintiff being her close relative. It cannot be believed that a person residing in a property for about 30 years, would not do any tangible act in that property or get any document prepared having its address. In the absence of any documentary or other cogent evidence, the deposition of DW1 and DW2 cannot be believed and accepted.
17. It is also to be appreciated that the defendant is having all her documents such as, election card and ration card, of another property situate at Bhola Nath Nagar, Shahdara Delhi, which she deposed about in her crossexamination. It cannot be believed that a person residing continuously in a property would have such documents of another property. There is nothing on record to show that the defendant came in possession of any part of the suit property prior to 2010. Also, there is no definite date or period or any evidence to commence the limitation period for counting adverse possession in terms of Article 64 of the Limitation Act.
18. In Dr. Dharmesh Chand Sharma Vs. Raj Kumari Sharma (1996) 8 SCC 128, it was held that "physical fact of exclusive possession and animus possidendi to hold as owner in exclusive to the actual Civil Suit No. 775/2016 8 of 12 owner are the most important factors that are to be account 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 in possession ; (b) what was the nature of 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 true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession".
19. In T. Anjanappa & others Vs. Somlingappa and another, 2007 (1) RCR (Civil) 19 (SC), it was held that "it is well recognized position of law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressively and impliedly in denial of title of the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner".
20. In the instant case, as already observed above, the defendant has failed to show and prove any date from which she came into possession of the suit property or any part of it and in what capacity she entered there. She further failed to show that her possession was within the knowledge of the plaintiff and had also failed to prove the longevity Civil Suit No. 775/2016 9 of 12 of her possession and that she claimed title of the property, hostile to that of the plaintiff. In the absence of these facts, even the continued long possession of the defendant, if any, would not constitute adverse possession entitling her to the title of the suit property or any part of it.
21. In view of the above findings, it is clear that the defendant has failed to prove the plea of adverse possession. On the other hand, the plaintiff has been successful in proving that she is the rightful legal owner of the suit property wherein the defendant has made unauthorized occupation in a part measuring 2025 sq. yards, thus, entitling her to the possession of that part of the suit property. Accordingly, Issues No. 1 and 6 are decided in favour of the plaintiff and against the defendant. ISSUES No. 2 and 3 :
22. The onus to prove these issues was upon the plaintiff. She claimed in her plaint that the defendant is liable to pay use and occupation charges @ Rs.5000/ per month and further that she is liable to pay Rs.5000/ as mesne profits w.e.f 18.7.2010 till the handing over of the vacant possession of the suit property to her. This very claim was made by her in her deposition made in her affidavit Ex.PW1/A. Similarly, PW3 also deposed in his affidavit that the defendant is liable to pay Rs.5000/ per month as use and occupation charges and that the market rate of the portion under illegal possession of the defendant at the time of filing of the suit was Rs.8000/ per month approximately. There was absolutely no crossexamination of these witnesses regarding the said fact and the claim. However, the plaintiff failed to lead any cogent evidence to show what was the market rate of rent of the portion under occupation of the defendant. It has to be borne in mind that the suit property is a vacant plot Civil Suit No. 775/2016 10 of 12 of land and the defendant is alleged to have occupied only 2025 sq. yards of the plot on which she constructed a jhuggi/shed. There is no evidence on record to show that even vacant plot of land or a temporary shed or jhuggi constructed on a small portion of 2025 sq. yards, could have fetched that much amount of rent per month. The claim and deposition of PW1 and PW3 in this respect appears to be totally vague and without any corroboration and as such, this relief cannot be given to the plaintiff. These issues are accordingly decided in favour of the defendant and against the plaintiff.
ISSUE No.4 :
23. The onus to prove this issue was upon the defendant. However, she led no evidence on this issue. The plaintiff valued the suit for the purposes of court fee and jurisdiction at Rs.15 lacs and for the purposes of possession at Rs.2 Lacs. In the written statement, the defendant took the plea that the market value of the suit property is more than Rs.35 lacs. Except this vague objection, no cogent evidence was brought on record by the defendant to show as to what was the actual market value of the suit property, in particular the piece of land for which possession has been claimed by the plaintiff and as such, failed to prove this issue. Hence, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE No. 5 :
24. The onus to prove this issue was again upon the defendant. She pleaded in the written statement that the suit has been filed without any cause of action but thereafter led no evidence on this issue. As per the claim and suit of the plaintiff, she was the registered owner of the suit Civil Suit No. 775/2016 11 of 12 property on which the defendant had made unauthorized and illegal occupation and therefore, she was well within her rights to initiate action against the defendant and as such, it cannot be said that the suit was without any cause of action. This issue is again decided in favour of the plaintiff and against the defendant.
ISSUE No. 7/Relief :
25. In view of the findings on the above issues, the suit is partly decreed in favour of the plaintiff and it is directed that the defendant shall hand over the vacant peaceful possession of the suit property to the plaintiff, measuring 2025 sq. yards out of the total area of the suit property measuring 200 sq. yards, as shown in red colour in the site plan, bearing Municipal Number X26, Street No. 10, BlockX, Brahm Puri, Village Ghonda , Khasra No. 721, Chauhan Khadar, Delhi - 110 053.
No order is passed as to cost. Decree sheet be prepared in terms of the above order.
Suit is disposed of accordingly. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON the 6th day of July 2017 (SANJAY SHARMAI) Addl. District Judge02 (East) Karkardooma Courts, Delhi Digitally signed by SANJAY SANJAY SHARMA SHARMA Location: Delhi Date: 2017.07.11 12:59:50 +0530 Civil Suit No. 775/2016 12 of 12