Delhi High Court
Anoop Kumar Aggarwal vs Shanti Sarup Chowhan (Deceased) ... on 10 July, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th July, 2018
+ RSA 145/2017
ANOOP KUMAR AGGARWAL ..... Appellant
Through: Mr S.D.Ansari with Mr I.Ahmed,
Advocates with Appellant in person.
Versus
SHANTI SARUP CHOWHAN (DECEASED)
THROUGH LRS & ORS ..... Respondents
Through: Mr Parvinder Chauhan, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated
06th March, 2017 in RCA No.61359/2016 of the Court of Additional
District & Sessions Judge, Central, Tis Hazari, Delhi] of dismissal of
first appeal under Section 96 of the CPC preferred by the appellant
against the judgment and decree dated [14th February, 2014 in CS
No.596/10/97 (Unique Case ID No.02401C0093482002)] of
dismissal of the suit filed by the appellant/plaintiff against the
predecessor of the respondents/defendants for recovery of possession
of immovable property with mesne profits.
RSA 145/2017 Page 1 of 14
2. This appeal came up before this Court first on 22.05.2017, when
notice thereof was ordered to be issued and Trial Court Record
requisitioned.
3. The order dated 10.10.2017 records that the respondents No.3 &
5 namely Shri Virender Kumar Chowhan and Smt Meenakshi
Chowhan had expired. The appellant filed CM No.5492/2018 for a
direction to the remaining respondents to furnish the particulars of the
heirs of the deceased respondents No.3 & 5. Vide order dated
20.02.2018, the said application was allowed and the remaining
respondents were directed to furnish the particulars.
4. The counsel for the remaining respondents states that the
remaining respondents are the only natural heirs of the deceased
respondents No.3 & 5 and there are no other heirs of the deceased
respondents No.3 & 5.
5. On an oral request of the counsel for the appellant, the
respondents No.1, 2, 4 & 6 are also recorded as the heirs of
respondents No.3 & 5.
6. Neither while issuing notice nor in any of the subsequent orders,
any substantial question of law which arises, was framed or indicated.
7. I have asked the counsel for the respondents/defendants,
whether the appeal can be taken up for final hearing and during which,
it will also be determined, whether any substantial question of law
arises. Counsel for the respondents/defendants has fairly agreed.
RSA 145/2017 Page 2 of 14
8. The counsels have been heard and the impugned judgment and
the Trial Court Record perused.
9. The appellant/plaintiff instituted the suit, from which this appeal
arises, for recovery of possession of one room on the first floor of
property No.2036, H.C.Sen Road Fountain Gali, pleading (i) that the
appellant/plaintiff is the owner of the property No.2036, H.C.Sen
Road Fountain Gali; (ii) that the respondent/defendant Shri Shanti
Sarup Chowhan, Advocate (whose legal heirs the present
respondents/defendants are) had trespassed into the said room in
collusion with the other tenants in the property and the
respondent/defendant had no right, title or interest in the room in
question; iii) that the respondent/defendant, inspite of being called
upon, had failed to handover peaceful vacant possession to the
appellant/plaintiff.
10. The respondent/defendant contested the suit by filing a written
statement, pleading (i) that he was in possession of one room
measuring 17 ft.x14 ft. with two doors on the first floor of the
property, since before 1967, without paying any rent to Shri Nirender
Kumar Brij-Rattan Mahta of Bombay, owner of the property; ii) the
owner of the property did not raise any objection to the possession of
the respondent/defendant of the said room; iii) that in 1984 riots, the
entire building was destroyed and the respondent/defendant, being an
Advocate, was paid compensation of Rs.22,500/-; iv) that all the
occupants of the building reconstructed their portions and the
respondent/defendant also re-constructed the portion in his occupation
RSA 145/2017 Page 3 of 14
at his own cost; v) thereafter, the father of the appellant/plaintiff
contacted the respondent/defendant, to get the consent of the
respondent/defendant to have the room in his possession transferred in
his name as a tenant; (vi) that in 1985, the father of the
appellant/plaintiff also exchanged the room earlier in the occupation
of the respondent/defendant with another room, which was then in
possession of the father of the appellant/plaintiff; (vii) that the
appellant/plaintiff, after purchase of the property, had stepped into the
shoes of the previous owner and the respondent/defendant had
retained adverse possession of the said room, as earlier.
11. In the aforesaid state of pleadings, the following issues were
framed in the suit :-
"1. Whether the suit has been properly valued for the
purpose of court fees and jurisdiction? OPP
2. Whether the description of the property is correct?
OPP
3. Whether the site plan of the property is correct as
per spot? OPP
4. Whether the plaintiff is the owner of the property in
suit? OPP
5. Whether the plaintiff is entitled to possession? OPP
6. Whether the decree for damages of Rs. 25,000/- for
mesne profits can be passed in favour of the plaintiff?
OPP
RSA 145/2017 Page 4 of 14
7. Whether the defendant is in possession even before
alleged date of unauthorised occupation of the
defendant, if so its effect? OPD
8. Relief, if any."
12. The suit court decided issues No.1 to 4 in favour of the
appellant/plaintiff and against the respondent/defendant; however,
issues 5 & 6 were decided against the appellant/plaintiff, reasoning (i)
that the case of the appellant/plaintiff was that the
respondent/defendant had trespassed into the room in his possession;
(ii) however, there was no certainty as to the date of the trespass and
different dates had been at different places; (iii) that the
appellant/plaintiff ought to have examined the earlier owner of the
property, who could have led best evidence in this regard and which
was not led; (iv) that the evidence led by the appellant/plaintiff did not
prove that the respondent/defendant had trespassed into the room qua
which the suit was filed in the year 1995; v) that on the contrary, it
appeared that the respondent/defendant had been in peaceful
possession of the said room.
13. The respondent/defendant did not prefer any appeal against the
findings of the suit court, to the extent against him. The
appellant/plaintiff preferred the Appeal which was dismissed, giving
the same reasons as given by the Suit Court.
14. It is thus found that issue of title of the appellant/plaintiff to the
property i.e. one room on the first floor, of which the
respondent/defendant was/is in possession, has been decided in favour
RSA 145/2017 Page 5 of 14
of the appellant/plaintiff but the decree for possession thereof sought
by the appellant/plaintiff has been denied for the reason of the
appellant/plaintiff having failed to prove the date of unauthorized
occupation of the said room by the respondent/ defendant or the act of
trespass by the respondent/defendant of occupation of the said room.
15. It is also worth highlighting, that the respondent/defendant, in
the written statement, did not claim any title to the property and
merely claimed to be in possession thereof.
16. The substantial question of law which thus arises for
consideration is :
"Whether a decree for recovery of possession of
immovable property on the basis of the title can be
denied inspite of finding the plaintiff to have title and
merely for the reason of the unauthorized trespass by the
defendant over the property having not been proved."
17. The counsels have been heard on the aforesaid question.
18. Counsel for the respondent/defendant contends that the
respondent/defendant claimed title to the property and has in this
regard drawn attention to the following paragraphs of the written
statement :-
"3. That the plaintiff has suppressed material facts in the
plaint and has not come with clean hands before this
Hon'ble Court and the plaintiff is not entitled to the relief
claimed in the suit. The suit merits dismissal with costs.
The material fact suppressed in the plaint is that the
defendant is in occupation of an office accommodation
RSA 145/2017 Page 6 of 14
consisting of one room measuring 17 ft. x 14 ft. with two
gates one opening in the gali and other in the main
common passage of all the tenants on the first floor with
an open roof of this room, since before 1967 regularly,
continuously, openly, without paying any rent to the owner
Shri Nirender Kumar Brij-Rattan Mahta of Bombay. One
Shri Bakshi was the Rent Collector of the owner of this
building and without any objection from Shri Bakshi and
the owner in this connection.
In 1984, roits, the whole of this building was
collapsed due to heavy and devastating fire and the office
of the defendant with thirty years' library was burnt in it.
The defendant was paid a sum of Rs. 22500/- as the
compensation of this office from the office of the Deputy
Commissioner, Delhi.
All the occupants of this building got their own
respective portions constructed at their own costs. The
defendant and Shri Bhatnagar also got their respective
portions completed at their own costs and it was ready for
use for the defendant and Shri Bhatnagar in 1985.
Thereafter Shri Sukhbir Saran Agarwal father of the
plaintiff contacted the defendant Through Shri BIjay Singh
and got this defendant's consent to get this portion
transferred in his name as a tenant and both this defendant
and Shri Sukhbir Saran Agarwal started using their
respective portions independently with a common passage.
That in 1985, Shri Sukhbir Saran exchanged the old
portion of the defendant with his new portion on the back
side opening towards the Main Stairs of this building,
which is the room in dispute.
RSA 145/2017 Page 7 of 14
4. That after the alleged purchased of this building by
the plaintiff, the plaintiff has come in foot steps of the
original owner and acquired no new rights with respect to
the office of the defendant in question and for this reason,
the defendant retained in adverse possession of the office
room in the suit as before till date."
19. Counsel for the respondent/defendant also draws attention to the
following paragraph in the judgment of the suit court:-
"Further, in legal notice dated 14.07.1997, Ex.PW1/2 plaintiff
has stated that the room in question was in possession of
previous owner of the property. In Sale deed Ex.PW1/8 on page
no. 4 it is mentioned that the property in question which includes
the suit property is fully occupied by the tenants. Thus the
previous owner of suit property was the best person to depose
about the possession of the suit property in question prior to and
at the time of execution of the sale deed. Plaintiff has failed to
bring the earlier owner and other tenants in the vicinity of suit
property as witness to depose in present case about the
possession of the suit property."
20. Counsel for the respondent/defendant has argued, that the Suit
Court, from the recital in the sale deed of the property in favour of the
appellant/plaintiff that the entire property is fully occupied by tenants,
has held that the status of the respondent/defendant in the property is
as a tenant. It is further contended that the respondent/defendant's
tenancy is protected by the Delhi Rent Control Act, 1958 and the
jurisdiction of the civil court is barred under Section 50 thereof, to
grant a decree for recovery of possession.
RSA 145/2017 Page 8 of 14
21. No plea of tenancy can be deciphered from the paragraphs of
the written statement reproduced above. Rather, the
respondent/defendant unequivocally pleaded that he occupied the
room without paying any rent to the then owner of the property.
22. Rather, the respondent/defendant vaguely pleaded to have
remained in adverse possession.
23. However, neither any issue was pressed on the plea of tenancy
or on the plea of adverse possession and no evidence in that regard led
and no findings have been returned either by the Suit Court or by the
First Appellate Court thereon.
24. The respondent/defendant is not in Appeal and has allowed the
findings of the courts below in so far as against the
respondent/defendant, to attain finality. It is not open to the counsel
for the respondent/defendant to today, in Second Appeal argue without
any basis in pleadings, evidence or findings of the Courts below, that
the respondent/defendant is a tenant in the property or in adverse
possession.
25. As far as the argument with respect to the Sale Deed is
concerned, though no evidence contrary to the pleadings can be read
but even if it were to be believed that the respondent/defendant was
also a tenant in the property as stated by the erstwhile owner of the
property, in the Sale deed, and the appellant/plaintiff as successor-in-
interest is bound thereby, it is quite evident that the
respondent/defendant, by taking a plea in the written statement of not
RSA 145/2017 Page 9 of 14
being a tenant and/or being in adverse possession, has
abandoned/surrendered the tenancy right and now, faced with the
decree of possession, cannot claim to be a tenant in the subject room.
26. As far as the question of law framed as above is concerned,
recently in Manmohan Bedi Vs. Ramesh Kumar Guria 2018 SCC
OnLine Del 9948 concerned with an identical question, it was held as
under.
"36. A suit for possession of immovable property is governed by
Articles 64 & 65 of the Schedule to the Limitation Act, 1963.
The subject suit is a suit for possession based on title and is
governed by Article 65, which though provides the limitation for
filing thereof of 12 years but commencing from the date when
the possession of the defendant becomes adverse to that of the
plaintiff. It has been held in Dagadabai v. Abbas, (2017) 13 SCC
705, Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC
543 & T. Anjanappa v. Somalinagappa, (2006) 7 SCC 570, that
for possession of the defendant to become adverse to the
plaintiff, the defendant has to admit the ownership of the
plaintiff. The respondent/defendant did not admit ownership of
the appellant/plaintiff and thus the plea of adverse possession is
not open. Even otherwise, no plea of adverse possession has
been taken in the written statement of the respondent/defendant.
Rather, the plea of the respondent/defendant was of being in
possession in his own right and which is a plea of lawful
possession of the premises. It has been held in Mohan
Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639, PT Munichikanna
Reddy v. Revamma, (2007) 6 SCC 59, LN Aswathama v. P.
Prakash, (2009) 13 SCC 229, Pushpa Rathi v. Jugnu
Bansal, 2017 SCC OnLine Del 10881& Karnataka Board of
Wakf v. Government of India, (2004) 10 SCC 779 that the plea of
lawful possession cannot coexist with a plea of adverse
possession. For this reason also, the plea of adverse possession is
not available to the respondent/defendant."
27. I may add:
RSA 145/2017 Page 10 of 14
A. Suit for recovery of possession of immovable property,
under the provisions of the Specific Relief Act, 1963, can
be filed either under Section 5 or under Section 6 thereof;
B. The suit was admittedly not filed as a suit under Section 6
of the Specific Relief Act and which was to be filed within
six months of the date of dispossession.
C. Suit for recovery of possession of immovable property,
under Section 5, can be filed either on the basis of prior
possession or on the basis of title.
D. Suit for recovery of possession on the basis of prior
possession, vide Article 64 of the Schedule to the
Limitation Act, is to be filed within twelve years of the date
of dispossession.
E. Suit for recovery of possession on the basis of title, vide
Article 65, is to be filed within twelve years of the date on
which the possession of the defendant becomes adverse to
that of the plaintiff.
27A. Supreme Court, in Maria Margarida Sequeria Fernandes Vs.
Erasmo Jack de Sequeria (2012) 5 SCC 370, also held that
"66. A title suit for possession has two parts - first, adjudication of
title, and second, adjudication of possession. If the title
dispute is removed and the title is established in one or the
other, then, in effect, it becomes a suit for ejectment where the
defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable
property, or for protecting possession thereof, upon the legal
title to the property being established, the possession or
occupation of the property by a person other than the holder of
the legal title will be presumed to have been under and in
RSA 145/2017 Page 11 of 14
subordination to the legal title, and it will be for the person
resisting a claim for recovery of possession or claiming a right
to continue in possession, to establish that he has such a right.
To put it differently, wherever pleadings and documents
establish title to a particular property and possession is in
question, it will be for the person in possession to give
sufficiently detailed pleadings, particulars and documents to
support his claim in order to continue in possession."
28. The subject suit, as is clear from the pleadings thereof and the
way it was understood by the parties and the parties have led evidence,
was a suit for possession under Section 5 on the basis of title.
29. The appellant/plaintiff has proved his title to the property and
the said finding has not been challenged by the
respondents/defendants and has attained finality. Rather, there are
admissions in the written statement, of the title of the
appellant/plaintiff to the property.
30. Once it is established that the appellant/plaintiff has title to the
property, it was for the respondent/defendant to plead and prove the
right, if any to remain in occupation of the property. The
respondent/defendant utterly failed to do so. The pleas in the written
statement, neither constitute the plea of tenancy nor of adverse
possession. No issues also on the said pleas were got framed and no
evidence was led thereon and no findings were sought thereon.
Without the respondents/defendants pleading any right to continue in
occupation in the property, a decree for possession ought to have
followed on the appellant/plaintiff proving his title and the Courts
below have erred in holding that it was for the appellant/plaintiff to
RSA 145/2017 Page 12 of 14
prove the factum of trespass by the respondent/defendant into the
property. Once the title of the plaintiff seeking possession is proved
and the respondent has not disclosed title to remain in occupation, a
decree for possession has to follow, more so, when it is also not the
plea that the claim for recovery of possession was time barred.
31. The judgments of the Courts below are accordingly set aside.
32. A decree is passed, in favour of the appellant/plaintiff and
against the respondents/defendants, of recovery of possession of one
room, as shown in red colour of the site plan (Ex.PW-1/1) as proved
before the Trial Court, on the first floor of property No. 2036, H.C.Sen
Road Fountain Gali.
33. Counsel for the respondents/defendants, on enquiry, states that
the claim of the appellant/plaintiff is for mesne profits at the rate of
Rs.1,000/- per month only.
34. Keeping in view the prevalent rates in the locality where the
property is situated, the claim for mesne profits at the rate of
Rs.1,000/- per month is found to be reasonable.
35. A decree is accordingly also passed, in favour of the
appellant/plaintiff and jointly and severally against the
respondents/defendants, of mesne profits at the rate of Rs.1,000/- per
month, with effect from 27th August, 1995 till the date of delivery of
possession of the room aforesaid or dispossession of the
respondent/defendants therefrom.
RSA 145/2017 Page 13 of 14
36. The respondents/defendants are also directed to clear upto date
charges of electricity consumption in the said room and which if not
done, shall again be recoverable by the appellant/plaintiff jointly and
severally from the respondents/defendants.
No costs.
37. Decree sheet be prepared.
38. The decree for mesne profits be executed on the
appellant/plaintiff depositing the deficit stamp duty before the Trial
Court.
RAJIV SAHAI ENDLAW, J.
JULY 10, 2018 'Sn'..
RSA 145/2017 Page 14 of 14