Delhi District Court
Sh. Vishal Verma S/O Late Sh. Sukh Ram vs Smt. Basanti Devi (Now Deceased) on 23 April, 2013
1 CS No.: 32/13/01
IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE-12 (CENTRAL),
TIS HAZARI COURTS, DELHI
SUIT NO : 32/13/01
In the matter of :-
Sh. Sukh Ram (Deceased)
Through Legal Representatives
1. Sh. Vishal Verma S/o Late Sh. Sukh Ram
R/o87, Arjun Nagar, Safdarjung Enclave,
New Delhi-110029.
2. Sh. Alok Sharma (Grandson of Chajju Ram)
S/o Late Sh. Sukh Ram (Predeceased son of
Late Sh. Chajju Ram)
3. Sh. Vikas Sharma (Grandson of Chajju Ram)
S/o Late Sh. Sukh Ram (Predeceased son of
Late Sh. Chajju Ram)
4. Sh. Raman Sharma (Grandson of Chajju Ram)
S/o Late Sh. Sukh Ram (Predeceased son of
Late Sh. Chajju Ram)
All resident of 65, Arjun Nagar, Safdarjung,
New Delhi.
5. Sh. Surinder Nath (Deceased)
Through Legal Representative
Sh. Raman Kaushal s/o Late Sh. Surinder Nath
R/o 64-A, Arjun Nagar, Safdarjung Enclave,
New Delhi.
Contd....
2 CS No.: 32/13/01
6. Sh. Ishar Dass (Deceased)
Through Legal Representatives
i) Shri Som Dutt s/o Late Sh. Ishar Dass
ii) Mrs. Darshana d/o Late Sh. Ishar Dass
iii) Mrs. Anita Sharma d/o Late Sh. Ishar Dass
iv) Sh. Sunil Dutt s/o Late Sh. Ishar Dass
v) Sh. Vijay Chibber s/o Late Sh. Ishar Dass
vi) Mrs. Madhu d/o Late Sh. Ishar Dass
vii)Sh. Arun Chiber s/o Late Sh. Ishar Dass
viii)Sh. Rajan Chibber s/o Late Sh. Ishar Dass
All R/o B-7 Extension/71, Safdarjung Enclave,
New Delhi-29.
7. Arjun Nagar Shiv Mandir Committee
Through its President
Arjun Nagar Shiv Mandir Building,
Safdarjung Enclave, New Delhi-29. ......Plaintiffs
VERSUS
Smt. Basanti Devi (now deceased)
Through Legal Representatives:
1. Sh. Sat Narain S/o Late Sh. Rewar Mal
R/o 65-E, Arjun Nagar, Safdarjung Enclave,
New Delhi-29.
2. Sh. Gopal Lal S/o Late Sh. Rewar Mal
R/o 65-E, Arjun Nagar, Safdarjung Enclave,
New Delhi-29.
Contd....
3 CS No.: 32/13/01
3. Sh. Narain Lal S/o Late Sh. Rewar Mal
R/o 65-E, Arjun Nagar, Safdarjung Enclave,
New Delhi-29.
4. Sh. Raj Kumar S/o Late Sh. Rewar Mal
R/o Chattarpur Extension, New Delhi.
5. Sh. Om Prakash S/o Late Sh. Rewar Mal
R/o Neem Ka Basar, Baswa
Distt. Dohsa (Rajasthan).
6. Smt. Sushila Devi W/o Sh. Rewar Mal
R/o Village Natoge, near Kherli Distt. Alwar
7. Smt. Gayatri Devi W/o Late Sh. Labh Shankar Sharma,
R/o Village Laxman Garh, Distt. Alwar (Rajasthan).
.....Defendants
Date of institution : 14.05.2001
Reserved for Judgment: 01.04.2013
Date of decision : 23.04.2013
SUIT FOR POSSESSION AND MESNE PROFITS
J U D G M E N T:
1. Plaintiffs have filed the present suit for possession and mesne profits against defendants contending inter alia that Sh. Sukh Ram (plaintiff no.1), Sh. Chajju Ram Sharma (now deceased predecessor in interest of plaintiff no.2 to Contd....
4 CS No.: 32/13/01
4), Surender Nath (plaintiff no.5) and Sh. Mangat Ram (now deceased predecessor in interest of plaintiff no.6) had purchased one Bigha of land in Khasra no.630/70 village Humayun Pur, New Delhi, vide a sale deed dated 25.03.1964 registered with Sub-Registrar, New Delhi. Immediately after the purchase of said land the aforesaid four co-owners developed the land in seven plots and provided street for each plot. Out of these seven plots the aforesaid co-owners divided four plots and on oral division one plot was allotted to each of the four co-owners and as such four separate houses were built by these four co-owners i. e. one house is built by each for their personal use and remaining three plots remained common in joint ownership of the four co-owners. One of these three plots particularly shown as green in the site plan, a temple was built with their own funds. On the second plot shown as yellow in the site plan, the co-owners built a Kirtan Hall / Geeta Bhawan with their own funds whereas on the 3rd floor shown in red colour in site plan a staff quarter consisting of two rooms, one set and latrine was built up. After completion of construction of the temple, Kirtan Hall, Geeta Bhawan and the staff quarter, the then co-owners and their friends neighbours and associates joined hands to promote a society under the Contd....
5 CS No.: 32/13/01name and style of Arjun Nagar, Shiv Mandir Committee, which was duly registered. The management and supervision of the temple, Kirtan Hall, Geeta Bhawan and the staff quarter was handed over to the said society / committee Arjun Nagar, Shiv Mandir Committee (plaintiff no.7). One Sh. Rewarmal, husband of the defendant was deputed as part time Pujari in addition to other Pujaries by the plaintiffs and he was allotted a quarter but due to his old age, his services were dispensed during his life time but he was allowed to remain in the quarter as a licencee under the plaintiffs. Shortly, Sh. Rewarmal also expired and after his death his wife i.e. present defendant was allowed to remain in the quarter as licencee. The licence of the defendant has now been revoked and as per the joint meeting of executive committee of Arjun Nagar Shiv Mandir Committee, Sh. Ishwar Dass president of said Committee had been authorized to convey the decision of executive committee and the co-owners of the suit property to the defendants after revocation of her licence and to ask her to vacate and hand over the actual physical possession. Sh. Ishar Dass had also been authorized to file a civil suit for eviction and mesne profits against the defendants, if she failed to vacate the said quarter. Defendant was accordingly conveyed the Contd....
6 CS No.: 32/13/01decision of executive committee but she failed to vacate and hand over the possession of the suit property as shown in red colour in the site plain annexed with the plaint. Hence, the present suit for possession and mesne profits @ Rs.5000/- per month w.e.f 01.01.2001 till the suit premises are restored to the plaintiffs.
2. The defendant expired and her legal heirs have filed the written statement submitting that plaintiffs have no cause of action. The suit is bad for mis-joinder and non-joinder of necessary parties. It is further averred by the LRs of the defendant that they became owner of the suit premises by way of adverse possession as nobody had challenged the same for the last more than 30years. All the superstructure was raised by the defendants since the time in possession therein; that the plaintiffs have no locus standie to file the present suit and the suit premises does not belong to them. The LRs of the defendant have further alleged that actual facts are that father and grandfather came to the village and raised the funds from the vicinity and constructed the temple of different idols of the God / Godess. The temple started flourishing and some people including the Contd....
7 CS No.: 32/13/01present plaintiffs became jealous of this and formed one committee to oust the defendants. This committee was formed to look after the matters / management of the temple situated in front of the temple in which the defendants were performing their duties. The plaintiffs with malafide intention joined two temples from first floor and tried to take over possession and management of both the temples. Thereafter they tried to dispossess the defendant forcibly. On this the defendants have filed suit for permanent injunction. Present suit is outcome / outburst of that suit. On merits the defendants have further alleged that the construction of staff quarter is wrong baseless and based on concocted story. The land where two rooms, one shed and latrine were shown in the site plan had been built by defendants on the open land in the year 1972 and none objected to the same till filing of the present suit. The possession of the defendant is uninterrupted and nobody claimed over the same. The factum of father of the LRs of the defendant being the licencee has also been denied. It is further submitted by LRs of the defendant that a room was provided by the villagers in temple in itself to the father of the defendant but due to large family, father of the defendant constructed a kachha room near the vacant land in the year 1973 and after some Contd....
8 CS No.: 32/13/01time he further raised construction and left the room in the temple as per his free will.
3. A detailed replication has been filed by the plaintiffs to the Written Statement of the LRs of the defendant whereby the defence of the defendants has been denied being wrong and incorrect and contents of the plaint have been reaffirmed and reiterated as true and correct.
4. On the basis of the pleadings of the parties, my Ld. Predecessor had framed the following issues for trial on 06.02.2003 :-
(i) Whether the plaintiff is entitled to the relief of possession, as prayed for? OPP
(ii) Whether the plaintiff is entitled to the mesne profits and damages? If so, at what rate and for what period? OPP
(iii)Whether the defendant has become owner by adverse possession? OPD
(iv) Relief.
Contd....
9 CS No.: 32/13/01
5. In support of their case plaintiffs have examined only one witness PW1 Sh. Jogender Nath who had tendered his affidavit in evidence Ex.C1. PW1 has relied upon the documents i. e. the GPA of Sh. Surender Nath-plaintiff no.6 Ex.PW1/1, authorization to contest the cases on behalf of Arjun Nagar, Shiv Mandir Committee vide resolution dated 20.04.2003 is Ex.PW1/2 alongwith the minutes book Ex.PW1/2A. The president of the said committee Sh. Ishar Dass suffered paralysis and the medical certificate in this regard is Ex.PW1/2B. The certified copy of the sale deed dated 25.03.1964 and its true translated copy is Ex.PW1/4. The site plan is Ex.PW1/5. The certified copy of order dated 25.07.1970 passed by the competent Revenue Court is Ex.PW1/6 and its true translated English copy is Ex.PW1/7. The true copy of certificate of registration of the society / committee is Ex.PW1/8, The attested copy of resolution dated 12.12.2000 is Ex.PW1/9, whereas the attested copy of resolution passed in the meeting held on 27.04.01 is Ex.PW1/10. The copy of order / judgment dated 13.02.1995 passed in Suit no. 125/93 by Ms. Pinki, Civil Judge is Ex.PW1/11.
6. Whereas the defendant in support of their case have examined one Contd....
10 CS No.: 32/13/01witness i.e. Pandit Gopal Lal Sharma as DW1, who himself is one of the legal heir of late Sh. Rewarmal Sharma and tendered his affidavit in evidence Ex.DW1/A , bearing his signatures at point-A and B and relied upon the documents i.e. death certificate of Rewarmal i.e. Ex.DW1/1. Complaint dated 24.04.1995 made to the SHO, Arjun Nagar, Delhi, Ex.DW1/2, another complaint dated 16.02.1996 is Ex.DW1/3. The documents evidencing the undisturbed and undisputed enjoyment of the suit premises by the defendant / her LRs is Ex.DW1/4, Ex.DW1/5 and Ex.DW1/6 respectively. All these documents have been rejected by my Ld. Predecessor and the case is that now there is no document in support of the case of the defendants.
7. I have heard Ld. Counsel for the plaintiffs, Ld. Counsel for the defendants and have carefully gone through the record.
8. This case had been transferred to this court wherein the counsel for the plaintiffs had filed the written arguments. Ld. Counsel for defendant no.2 had also filed the final written arguments.
Contd....
11 CS No.: 32/13/01
9. It is argued by counsel for the plaintiffs that on the basis of registered documents the plaintiffs have been able to prove that they had purchased the suit property in the year 1965 and became its owner. They constructed the Kirtan Hall, Geeta Bhawan and temple, staff quarter, out of their own funds. Husband of the defendant namely Rewarmal was deputed as part time pujari in addition to other pujaries but his services were dispensed with and after his death, his widow Basanti Devi continued to remain in the staff quarter as licencee. With the passage of time, the licence of the defendant was terminated and she was asked to vacate the suit premises. It is further argued by counsel for the plaintiffs that the testimony of PW1 remains unchallenged and impeccable. The defendants have miserably failed to prove their adverse possession against the true owner. In support of his contentions, Ld. Counsel for the plaintiffs has relied upon the case reported in (2006) 7 SSC 570, Hemaji Waghaji Jaat Vs Bhikha Bhai Khangrabai Harijan & Others in Civil Appeal no.1196/2007 and 182, (2011) DLT 402, and 182 (2011), DLT 402.
10. On the other hand, it is argued by Ld. Counsel for defendant no.1 Contd....
12 CS No.: 32/13/01and 3 that the plaintiffs have not proved on record as to when the alleged construction of temple, Geeta Bhawan, Kirtan Hall and staff quarter was raised by the plaintiffs. The revocation was never effected upon the defendant at any particular date and in this regard, the plaint as well as the affidavit in evidence of PW1 is completely silent. The provisions of Section 106 of the Transfer of property act have not been complied with, and therefore, the suit is bad in the eyes of law. It is further argued by counsel for defendants no.1 and 3 that no suggestion has been put to DW-1 that he is not entitled to the possession qua the suit property on the basis of adverse possession. No witness has been examined on record by the plaintiffs to prove that similar properties in and around the locality are attracting the rental of Rs.5000/- per month.
11. On the other hand, Ld. counsel for defendant no.2 has argued that the fore fathers of defendants started residing on a separate piece of land from the suit property in the year 1973 and they constructed a temple out of their own funds and alms collected from the general public. No notice u/s 106 of Transfer of Property Act was ever served upon the defendants. The oral submissions in Contd....
13 CS No.: 32/13/01the eyes of law have no sanctity. The alleged resolution vide which the licence of the defendant was terminated is bad and illegal. Ld. Counsel for defendant no.2 has relied upon (2007) 9 SCC 641 and AIR (2004) 134.
12. My issuewise findings as follows:
ISSUE NO.1 Whether the plaintiff is entitled to the relief of possession, as prayed for? OPP
13. Onus to prove this issue was on the plaintiffs. PW1 in his examination-in-chief by way of affidavit Ex.C1 has deposed on the similar lines as in the plaint. This witness has been cross-examined by counsel for the defendant. PW1 Sh. Jogender Nath denied that Sh. Rewarmal started construction of Mandir in the year 1973. Further denying the suggestion that in 1972 the suit property was a village. PW1 deposed that it is correct that they did not object to the possession of Rewarmal as he requested them to stay there. Admittedly, no licence deed was executed between the plaintiffs and Rewarmal. PW1 has further denied the suggestion of counsel of defendant that defendant is residing in Contd....
14 CS No.: 32/13/01the suit property for the last 30 years. Rest of the cross-examination of PW1 is only in the manner of putting suggestion which have been refuted by PW1. Nothing material could be elicited from cross-examination of PW1.
14. Now we come to the cross-examination of DW1 Pdt. Gopal Lal Sharma, who is one of the legal heir of Rewarmal Sharma. In the cross- examination DW1 admitted of filing Suit no. 676/96 by him. Certified copy of which is Ex.DW1/P1 and DW1/P2 is the certified copy of Written Statement filed in that suit by the defendants - plaintiffs herein. Ex.DW1/P3 is the certified copy of application u/o 6 Rule 17 CPC filed in that suit and Ex.DW1/P4 is reply thereto. DW1/P5 is the final order passed in the Suit no.676/96.
15. The whole claim of the defendants revolved around their plea of being the owner of the suit premises on the basis of adverse possession but during his cross-examination, DW1 could not tell as to against whom they are seeking the adverse possession in the suit property. He admitted of his father being a trustee and after his death he became trustee though he did not have any Contd....
15 CS No.: 32/13/01trust deed. DW1, nor could produce any documentary proof regarding the ownership as trustee. He further deposed that he claimed adverse possession in earlier suit. He has denied the suggestion of Ld. Counsel for the plaintiffs that he is a radio mechanic and not a Pujari. In the rest of the cross-examination of DW1, DW1 has denied all the suggestion put to him by counsel for the plaintiffs.
16. In view of the evidence adduced by both the parties, appraisal of the documentary evidence has become pertinent because in their oral testimonies both the parties have categorically and vehemently denied case of each other.
17. The plaintiffs base their claim that they are owner of the suit premises on the basis of sale deed dated 09.04.1964. The photocopy of the same is in Urdu language, is Ex.PW1/3 on record and its true English translation is Ex.PW1/4. The said sale deed is registered with Sub-Registrar. One Sh. Kali Ram son of Ram Dayal @ Ram Lal Jaat being the owner of four built-up sets pakka built-up with its land measuring one bigha in khasra no.630/70 measuring 7 bigha 3 biswas as per Khasra Girdawari certified copy dated 22.03.64, situated Contd....
16 CS No.: 32/13/01in village Humayunpur, owned and possessed by Kali Ram, has sold one bigha to Sh. Chajju Ram son of Sh. Rana Ram resident of 65 Arjun Nagar, Delhi, and Sh. Mangat Ram s/o Sh. Jagadari Ram r/o 240 Arjun Nagar, Sh. Surender Nath s/o Sh. Hakim Ram r/o 64 Arjun Nagar and Sh. Sukhram son of Sh. Hans Ram r/o Shanti Niwas, Arjun Nagar and he had handed over the ownership and possession to the purchasers i.e. the aforesaid four persons for a valuable consideration of Rs.1900/-. During the course of cross-examination of PW1, Ld. counsel for the defendant has not disputed the sale deed Ex.PW1/1 nor its true English translation which is Ex.PW1/4. The plaintiffs claim their right to be the owner of the suit property on the basis of documents Ex.PW1/6, which is the mutation certificate in Urdu language, the true translated copy of the same in English language is Ex.PW1/7. In the column of name of owner of the property - Chajju Ram s/o Rana Ram, Mangat Ram s/o Jagadhar Ram, Surender Nath s/o Hakim Rai, Sukhram s/o Hansraj in equal share in khasra no.630/70/1 Raqba 1bigha, 26-67 is mentioned and in the last column of Ex.PW1/7, the concerned Patwari had reported duly verified by Kanoongo that sale deed executed by Kali Ram in favour of Chajju Ram and others was submitted for orders. At the back of Contd....
17 CS No.: 32/13/01Ex.PW1/7, the order passed by the Naib Tehsildaar, is there. The property in question had been purchased by Chajju Ram, who has been identified by Tulsi Ram numberdaar of village Haujkhas, Delhi. Sh. Chajju Ram presented the registered sale deed document no.2241 dated 19.04.1964 and after reading the same that the total area of this khasra is given 7-3 instead of 3-7 inadvertently. Out of this Khasra number, no sale was effected earlier but as per the registered sale deed one bigha has been sold to the purchaser by seller Sh. Kali Ram. The seller has been verified to have expired. One temple has been constructed in the purchased land by the purchaser. This fact has also been verified at site in the public hearing. The purchasers are in possession of purchased land and the temple constructed by purchasers in khasra no. 630/70 and therefore, the mutation was sanctioned in favour of purchasers namely Chajju Ram, Mangat Ram, Sukhram and Surender Nath in respect of one bigha land purchased by them from Kali Ram for total sale consideration of Rs.1900/- as per registered sale deed.
18. With regard to authenticity and veracity of Ex.PW1/3, Ex.PW1/4, Contd....
18 CS No.: 32/13/01Ex.PW1/6 & PW1/7, the PW1 Sh. Jogender Nath has not been cross-examined at all by Ld. Counsel for the defendants. Ex.PW1/4 and Ex.PW1//7 are the English translation of their Urdu counter parts i.e. Ex.PW1/3 and Ex.PW1/6 respectively having been done by PW1 himself but even no suggestion has been put to him by counsel for the defendants that he has not translated Ex.PW1/3 and Ex.PW1/6 into their English version in the shape of Ex.PW1/4 and Ex.PW1/7 in their true sense, therefore, such English translation in the form of Ex.PW1/4 and Ex.PW1/7 stands duly proved on record as the true and authenticated translation of Ex.PW1/3 and Ex.PW1/6 respectively. Not only this, the PW1 has not been further cross-examined at all on the registered sale deed Ex.PW1/3, whether the same is correct or not or that the mutation in favour of the plaintiffs is false or incorrect.
19. During the course of arguments both counsel for defendants no.1 and 3 and defendant no.2 have raised a categorical objection to the case of the plaintiffs that provisions of Section 106 of TP Act have not been complied with by the plaintiff in as much as, the plaint as well as the affidavit in evidence of PW-1 is Contd....
19 CS No.: 32/13/01completely silent as to when the notice revoking the licence of the defendant was served. During the course of arguments counsel for the defendant no.1 and 3 taken the Court to Para no.3 of the plaint that after the death of Rewarmal, husband of the original defendant i.e. Basanti Devi, her licence was revoked by the plaintiffs as per decision made in the joint meeting of the Executive Committee of Arjun Nagar, Shiv Mandir Committee, which was also attended by co-owners of the suit property, held on 12.12.2000 and after the revocation of the licence the defendants have no right to remain in the suit property shown in red colour in the site plan. Be that as it may, since a patent objection has been raised by counsel for the defendants that provisions of Section 106 of Transfer of Property Act have not been complied with. It is necessary to look into that provision of law. The same is reproduced hereunder:
"Section 106. Duration of certain leases in absence of written contract or local usage.-
(1) In the absence of contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminated, on the Contd....20 CS No.: 32/13/01
part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property)."
20. A cursor reading of Section 106 of the Transfer of Property Act, makes it clear that it deals only with the leases in absence of written contract or local usage. The case of the plaintiffs in the instance case is that of the defendant being the liencee and not the lessee. Therefore, by any stretch of imagination, provisions of 106 of Transfer of Property Act are not applicable to the facts of the present case. However, even for the sake of arguments of counsel for defendants such plea is accepted to be true, still the law of the land with regard to termination of the tenancy for that matter involving the question of Contd....
21 CS No.: 32/13/01applicability of section 106 of the Transfer of Property Act, there have been sea change to that an extent that their Lordships of the Hon'ble High Court of Delhi in 182 (2011) DLT 402 had been pleased to held that "suit plaint itself can be taken as notice terminating tenancy." In the said judgment, their Lordships have relied upon the Supreme Court in the case of Nopany Investments (P) Ltd. V. Santokh Singh (HUF), 146 (2008) DLT 217 (SC) =1 (2008) SLT 195 = 2008 (2) SCC 728 has held that "the tenancy would stand terminated under general law on filing of a suit for eviction." Accordingly, in view of the decision in the case of Nopany (Supra) I hold that "even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant / defendant."
21. Therefore, in view of the aforesaid law laid down by Hon'ble High Court of Delhi, it is held that the objection of the defendant that notice of termination of licence was never served upon the defendant, is misconceived and does not hold the test of the law. Even otherwise, in the present case the Contd....
22 CS No.: 32/13/01case of the plaintiffs is that of licence and not of the lease. It is very much worthwhile to mention herein that nowhere throughout the proceedings, the defendant disputed the Shiv Mandir Committee, Arjun Nagar, Delhi, being the illegal formation / Committee which does not have the authority to revoke the licence of the defendant. In view of the aforesaid discussion, this issue is decided in favour of the plaintiffs and against the defendants. ISSUE NO.2 Whether the plaintiff is entitled to the mesne profits and damages ? If so, at what rate and for what period? OPP
22. In the suit plaintiffs have also claimed mesne profits and damages from the defendants submitting that after the revocation of licence of the defendant on dated 12.12.2000, the possession of the defendant over the suit property was that of the unauthorized occupant. However, in the prayer clause of the plaint, the plaintiffs have not mentioned as to what amount per month, the plaintiffs are claiming as mesne profits and damages from the defendants. Instead, in 2nd prayer in the plaint the plaintiffs have prayed for appointment of a Local Commissioner with direction to enquir into the mense profits and damages Contd....
23 CS No.: 32/13/01which the defendant is liable to pay to the plaintiffs for the period from 01.01.2001 till the possession of the suit property is actually restored. In para-6 of the plaint the plaintiffs have claimed mesne profits / damages @ Rs. 5000/- per month from 01.01.2001. The plaintiffs in support of their case have examined only one witness i.e. PW1 Jogender Nath who has tendered on record his affidavit in evidence Ex.C1. With regard to damages and mesne profits, the affidavit of PW1 Jogender Nath entails sub para (m) that the prevailing rental rates for accommodation akin to that staff quarter i.e. premises in suit, are of the order of Rs.5000/- per month. However, the fact remains that apart from this stray contention in the affidavit of PW1 that plaintiffs are entitled to the damages and mesne profits at the rate of Rs.5000/- per month from the defendants from the date of revocation of the licence, the plaintiffs have not examined any other independent witness in their support, nor they (plaintiffs) could prove any lease deed executed between any lessee and the lesser and the landlord and tenant for that matter in the area of Arjun Nagar, Safdarjung, that the prevalent rate of rent akin to the similar accommodation as in possession of defendants had been fetching rental at the rate of Rs.5000/- per month in January, 2001 or thereafter.
Contd....
24 CS No.: 32/13/01
23. DW1 Pandit Gopal Lal Sharma has filed his affidavit in evidence as Ex.DW1/A. In the entire affidavit in evidence, in examination-in-chief, the DW1 has not disputed and controverted the claim of the plaintiffs that they are not entitled to any mesne profits and damages from them after the revocation of licence, as claimed by the plaintiffs. In their Written Statement in reply to Para no.6 of the plaint whereby the plaintiffs have claimed damages / mesne profits, the defendant has merely stated the same to be wrong and incorrect and nothing else. Be that as it may. Since the onus to prove the present issue was on the plaintiffs, it was for the plaintiffs to discharge the same to the full satisfaction of the court that during the relevant time, when the licence of the defendant was revoked i.e. in December, 2000 the prevailing rate of rent for the similar accommodation as in possession of the defendants was fetching the rental @ Rs.5000/- per month. However, when the said claim of the plaintiffs is weighed on the scale of prudence, particularly in view of the fact that claim of the plaintiffs, has not been specifically disputed by the defendants, as also in view of the fact that suit property is situated in one of the posh locality of Delhi i.e. Safdarjung, in Contd....
25 CS No.: 32/13/01such situation, a two room set with tin shed and one latrine could have easily fetched average rental since January, 2001 till today @ Rs.2700/- per month. Accordingly, in view of the aforesaid discussion, this issue is decided in favour of the plaintiffs and against the defendants and the plaintiffs are awarded mesne profits and the damages @ Rs.2700/- per month from January, 2001 till the possession of the disputed suit property shown in red colour in the site plan is restored to the plaintiffs.
ISSUE NO.3 Whether the defendant has become owner by adverse possession? OPD
24. Onus to prove this issue was solely attributed to the defendants, who have throughout the pleadings claimed themselves to be the owner of the suit premises on the basis of adverse possession. The doctrine of adverse possession is purely a academic issue and one, who claims the benefit of the same should fulfill certain conditions to be successful thereon. During the course of arguments, Ld. Counsel for the plaintiffs referred to one earlier suit for permanent injunction filed by the defendant Pandit Gopal Lal Sharma. The Contd....
26 CS No.: 32/13/01defendant Gopal Lal Sharma in that earlier filed suit no.676/1996 claimed himself to be the only Pujari in trust Shiv Mandir situated at khasra no.630/70 Arjun Nagar. Prior to 1968 father of the plaintiffs - defendants herein namely Sh. Rewarmal Sharma was the only Pujari / trustee in the said temple. The defendant Gopal Lal Sharma, further claimed his father Rewarmal as founder trustee of the said temple which was constructed by common funds of the general public. After going through the entire earlier suit filed by the defendant as mentioned hereinabove, the defendant Gopal Lal Sharma claimed himself to be the trustee of the temple and its Dharmshala. Nowhere in that earlier suit filed by him, he claimed himself as the owner of the suit premises on the basis of adverse possession, whereas the fact remains that while contesting the present suit filed by the plaintiffs for possession and mesne profits, the defendants have taken a complete align plea of they being the owner of the suit premises on the basis of adverse possession.
25. The Hon'ble Supreme Court in (2006) 7 SCC 570, had held that one who claims the adverse possession, such possession must be hostile, in Contd....
27 CS No.: 32/13/01denial, either expressed or implied, to the title of the real owner. For that, it is essential that possessor must clearly know the actual owner of the property. Only then, their can be situation of being in hostile possession and question of denying title of true owner would arise. Possession must be peaceful, continuous and open, capable of being known by parties interested.
26. During the course of cross-examination of DW-1, touching one of the essential aspect of ingredient of adverse possession, counsel for the plaintiffs has asked very specific question from DW-1 Gopal Lal Sharma but DW-1 could not produce any document whereby he declared himself in adverse possession of the suit property prior to the date of filing the Written Statement in the present suit. Further, DW-1 could not tell the names of the owners against whom he claimed adverse possession in the suit property. Interestingly, DW-1 in his further cross- examination deposed that earlier his father was trustee and he was with him and now he is the trustee, though he could not produce any trust deed also, nor he had any documentary proof in this regard. DW-1 in contradiction to his earlier filed Suit no. 676/1996 deposed in his cross-examination as DW-1 that he Contd....
28 CS No.: 32/13/01claimed adverse possession in his earlier suit. Therefore, in view of the cross- examination of DW-1, as also the necessary requirement of principle of doctrine of adverse possession that the person, who claims adverse possession must be clearly knowing the actual owner of the suit property. Whereas in cross- examination DW-1 has deposed that he cannot tell the names of the owners against whom he is claiming adverse possession in the suit property.
27. Further the Hon'ble Supreme Court in Hemaji Waghaji Jaat Vs Bhikha Bhai Khangrabai Harijan & Others in Civil Appeal no.1196/2007, had held that "plea of adverse possession is not a pure question of law but a blended one of fact and law, therefore, person who claims adverse possession should show (a) on what date he came into possession (b) what was nature of his possession (c) whether the factum of possession was known to other party (d) for how long his possession has continued, and (e) his possession was open and undisturbed."
28. Coming to the facts of the present case that too specifically the Contd....
29 CS No.: 32/13/01defence of the defendants whether his plea of adverse possession fulfills the aforesaid conditions or not. Reference is necessary to the affidavit of DW-1. In para no.15 of affidavit of DW-1 in examination in chief, he has deposed that he is in possession of the temple situated at khasra no.630/70 Arjun Nagar, Delhi was continuous and uninterrupted with the defendant and her family till 1995, when the plaintiffs, with their malafide intention and ulterior motives tried to dispossess the plaintiffs and their family members. Apart from this, nothing else more has been deposed by the defendant with regard to their adverse possession over the suit premises, which nowhere fulfills the conditions of claiming the benefit of adverse possession as aforesaid by Hon'ble Supreme Court in Hemaji Waghaji Jaat Vs Bhikha Bhai Khangrabai Harijan & Others in Civil Appeal no. 1196/2007. Apart from mere deposition of DW-1 in respect of adverse possession, none else independent witness or any other defendant has been examined on record by the defendants to prove their adverse possession.
29. In B. N. Venkatarayapa Vs State of Karnataka (1998) 2 CLJ 414 Supreme Court, wherein it was held that "in absence of crucial pleadings Contd....
30 CS No.: 32/13/01regarding adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the land in question claiming right title and interest of the original grantee, the petitioners cannot claim that they have perfected their title by adverse possession." The burden of proof lies on the plaintiffs to show that they have title too and have been in possession and he was dispossessed and discontinued his possession within 12 years from the date of filing of the suit.
30. Further, in Karnataka Board of Waqf Vs Gvt. Of India , 2004 (2) RCR Civil 702, their Lordships have held that "in the eye of 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 effect 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 claim, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in Contd....
31 CS No.: 32/13/01extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the right owner and be actual, visible, exclusive, hostile and continued over the statutory period."
31. In view of the aforesaid law laid down by the superior courts, when the same are considered and matched with the defence of the defendant, the defendants have miserably failed to prove their plea of adverse possession. Otherwise also, in view of the observation arrived at while deciding the issue no.1 whereby the plaintiffs have been held / recognized to be the owner of the entire suit property situated in khasra no. 630/70 purchased vide sale deed Ex.PW1/3 for valuable consideration, there cannot be any adverse possession against the true owner. Further, at no point of time either expressly or impliedly the defendants ever declared themselves to be the owner in possession of the suit property in the garb of adverse possession. Further, when DW-1 was tendering his affidavit in evidence Ex.DW1/A and tried to rely upon the documents Ex.DW 1/1 to DW 1/6, the same were objected to by counsel for the plaintiffs as they were filed first time on record and were only the photocopies. The said Contd....
32 CS No.: 32/13/01documents were rejected by my Ld. Predecessor, therefore, the defendants have not filed any coherent evidence in support of their case. This issue is accordingly, decided in favour of the plaintiffs and against the defendants.
32. The case law relied upon by Ld. counsel for the defendant no.2 is not applicable to the facts of the present case.
ISSUE No.4 Relief
33. In view of the above discussion, the present suit is hereby decreed in favour of the plaintiffs and against the defendants. A decree for possession in respect of suit premises Khasra no.630/70 village Humayun Pur, New Delhi, more particularly shown in red colour in the site plan Ex.PW1/5 is hereby passed in favour of the plaintiffs. A further decree for mesne profit and damages is also passed in favour of the plaintiffs and against the defendants for a sum of Rs.2700/- per month, from January, 2001 till possession is restored to the plaintiffs. However, it is made clear to the plaintiffs that they shall pay the court Contd....
33 CS No.: 32/13/01fees on the amount calculated from January, 2001 till passing of this judgment calculated @ Rs.2700/- per month and only after payment of the court fees calculated on such period at the aforesaid rate, the decree sheet be prepared. The plaintiffs shall further be entitled to mesne profits in respect of the suit premises @ Rs.2700/- per month, till the possession is restored to them by the defendants. Under these circumstances, cost of the suit is also awarded in favour of the plaintiffs and against the defendants. Decree sheet be prepared accordingly in terms of aforesaid observations.
File be consigned to the record room after due compliance.
Announced in the open court (Kishor Kumar)
on 23.04.2013 Civil Judge-12 (Central)
Tis Hazari Courts: Delhi
Contd....
34 CS No.: 32/13/01
Contd....