Delhi District Court
Prem Rani Marwah vs Jaspal Singh And Ors on 22 July, 2024
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS No.17427/16
CNR No. DLSW01-005002-2016
IN THE MATTER OF :
Smt. Prem Rani Marwah
W/o Sh. S.K. Marwah,
R/o B-62, Rama Park,
Uttam Nagar, New Delhi. .....Plaintiff
Versus
1. Sh. Jaspal Singh
S/o Sh. Ajit Singh,
R/o Village Nangli Sakrawati,
Near Najafgarh, New Delhi.
2. Sh. Ajit Singh (Deceased)
Through His Legal Heirs
(I) Smt. Kitabo Devi
(II) Sh. Krishan Singh
(III) Sh. Rohtas Singh
(IV) Smt. Krishna w/o Sh. Balwan Singh
(V) Smt. Suman w/o Sh. Lal Chand
(VI) Smt. Manoj w/o Sh. Rakesh
All resident of Village Nangli Sakrawati,
Near Najafgarh, New Delhi-43. ....Defendants
Date of institution of the suit : 28.05.2010
Final Arguments heard on : 01.06.2024
Date of Judgment : 22.07.2024
SUIT FOR RECOVERY OF POSSESSION AND PERMANENT
INJUNCTION
INDEX
CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 1 of 27
FACTUAL BACKGROUND ......................2
ISSUES .....................5
EVIDENCE GIVEN BY PARTIES .....................6
SUBMISSIONS OF THE PARTIES .....................9
ISSUEWISE ANALYSIS & FINDINGS ....................12
CONCLUSION ....................27
JUDGMENT
1. The plaintiff had filed the present suit seeking a decree of recovery of possession and permanent injunction against the defendants before the Hon'ble High Court of Delhi and later on at the stage of plaintiff's evidence, the present case was transferred to this Court in terms of order dated 18.02.2016 passed by the Joint Registrar (Judicial) for trial as per law.
FACTUAL BACKGROUND
2. By way of present suit, the plaintiff has prayed for a decree of permanent injunction and recovery of possession of plot bearing No.D-494, measuring 200 sq.yds., part of Khasra No.193, situated in colony known as Indra Park, Village Masudabad, Near Najafgarh, New Delhi (hereinafter referred as 'suit property'). It is averred that land measuring 20 Bighas comprising of khasra no.193 and other khasras of village Maksoodabad, Najafgarh, New Delhi was purchased by the deceased father- in-law of plaintiff namely Sh.Ram Parkash Marwah, Managing Director of National Land Housing Corporation by virtue of registered sale deed dated 15.10.1971. It is stated that Sh. Amarjeet Singh Arora and late Sh. Lakhpat Rai were also joint owners of the said land. It is further stated that thereafter a colony was carved out on the said land and same is presently known as Indra Park, Najafgarh, New Delhi. It is stated that the suit property is one of CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 2 of 27 the plots situated in the above mentioned Indra Park Colony which has been regularized by Government of NCT of Delhi.
3. It is stated that most of the plots of Indra Park colony were sold by Sh. Amarjeet Singh Arora, Late Sh. Lakhpat Rai and late Sh. R.P. Marwah and they divided the remaining plots amongst themselves and the suit property came in the share of deceased father-in-law of the plaintiff namely Sh. R.P. Marwah. It is stated that late Sh. R.P. Marwah executed a Will dated 18.10.1995 by which he bequeathed the unsold plots including the suit property in favour of the plaintiff and in view of same the plaintiff became the owner of all the properties including the suit property as mentioned in said Will. It is further stated that Sh. R.P. Marwah passed away on 10.07.1996.
4. It is further averred by the plaintiff that on 15.12.2009, the husband of plaintiff received a telephonic message that the defendants alongwith their associates are present on the suit property with labour and masons for encroaching upon the suit property and upon reaching there, they found that the intervening walls of the suit property, which separated it from adjoining plots no. D-495 and D-493 have been broken by the defendants for the purpose of destroying the identity of the suit property and they further threatened the husband and sons of plaintiff of dire consequences. It is stated that the husband of plaintiff reported the matter to the police but they did not take any action and therefore the plaintiff filed a suit for permanent and mandatory injunction against the defendants vide Suit no.305/2009 but lateron the plaintiff had withdrawn the said suit due to change in circumstances. It is stated that the plaintiff has apprehension that defendants may sell/dispose off the suit property, hence the present suit.
CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 3 of 27
5. The summons of the suit were issued to the defendants and defendants filed their written statement.
6. In the written statement, it is averred by the defendants that the present suit is not maintainable as the Court has no jurisdiction to grant a decree of possession in respect of the property which is governed by the provisions of Delhi Land Reforms Act, 1954 and Section 185 of the Delhi Land Reforms Act is a complete bar to the jurisdiction of the civil court to grant relief of possession. It is further stated that the plaintiff has no locus standi to file the present suit and suit for relief of permanent injunction is also not maintainable as the plaintiff has not come to court with clean hands and has concealed the true and material facts in order to play fraud and the plaintiff has not disclosed that the defendants are in actual possession of the suit property since last more than 20 years and the defendants were having the possession of suit property even during the life time of Sh. R.P. Marwaha. It is further stated that Late Sh. R.P. Marwah during his life time took no steps to recover the possession of the suit property from the defendants and consequently, his rights to recover the possession was extinguished by lapse of time.
7. It is further stated that plaintiff has concealed the fact that the defendants at the time of purchasing the plot no. D-493 and D-495, measuring 200 sq.yd. each, from erstwhile owners, had amalgamated the same with plot no. D-494 and thereafter raised extensive construction thereupon and all the three plots were converted into two plots by the defendants measuring 300 sq. yards each by raising construction of an intervening wall upto a height of 10 feet. It is further mentioned that defendants have constructed four rooms and an office in one of the said plot and the premises was let out to various tenants who are in physical CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 4 of 27 occupation thereof since last about 10 years. It is stated that the other plot measuring 300 sq. yards was enclosed with a boundary wall and a tin shed room was also constructed and same is being used by the defendants and both these plots are thus in absolute control of defendants and thus plot no. D-494 does not exist at the spot since last about 17-18 years.
8. It is further stated that the plaintiff in collusion with Amarjeet Arora and Lakhpat Rai has filed the present suit and got prepared forged and fabricated Will dated 18.10.1995 on the basis of which the plaintiff has claimed her right, title and interest of suit property from late Sh.R.P. Marwah in favour of plaintiff. It is further stated that late Sh.R.P. Marwah could not have executed any Will in respect of the suit property as he was very well aware that he has lost all rights, title and interest over the same. It is stated that the suit is barred by the provision of Order VII Rule 11 CPC as no cause of action has arisen in favour of plaintiff and against the defendants and the suit is base on forged and fabricated documents and as such the same is liable to be dismissed.
9. Replication to the written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES
10. On the basis of pleadings of parties, following issues were framed by the Hon'ble High Court of Delhi vide order dated 26.07.2011 :-
(i) Whether the suit is hit by Section 185 of the Delhi Land Reforms Act, 1954? OPD
(ii)Whether the plaintiff has no locus standi to file the suit? OPD CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 5 of 27
(iii) Whether the suit is barred by limitation? OPD
(iv) Whether Shri R.P. Marwah had executed the Will dated 18 th October, 1995 as his last and valid Will and testament? If so, to what effect? OPP
(v) Whether the plaintiff is entitled to the decree for possession and permanent injunction as prayed? OPP
(vi) Relief. OPP EVIDENCE GIVEN BY THE PARTIES :
11. Plaintiff examined four witnesses in support of her case. PW-1 Prem Rani Marwah is plaintiff herself, who filed her affidavit Ex.PW1/A in evidence wherein she deposed on the line of averments made in plaint. She inter alia relied upon the following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. Special Power of Attorney dt. 27.04.2010 Ex.PW1/1
2. Sale deed dt. 15.10.1971 Ex.PW1/2 3. Site plan Ex.PW1/3
4. Bill pertaining to treatment of father-in-law Ex.PW1/4 of plaintiff namely Ram Prakash Marwha
5. Death certificate of father-in-law of plaintiff Ex.PW1/5
6. The Certified copy of paint Ex.PW1/6
7. Application Under Order 39 Rule 1 and 2 of Ex.PW1/7 C.P.C
8. Written statement and reply of defendant Ex.PW1/8 (Ex.P1) no. l and 2
9. Reply on behalf of defendant no. 1 and 2 to Ex.PW1/9 (Ex.P2) the application u/o XXXIX Rule 1 and 2 CPC
10. Written statement of defendant no.3 Ex.PW1/10
11. Written statement of defendant no.4 Ex.PW1/11 CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 6 of 27
12. Replication to the written statement of Ex.PW1/12 defendant no. 1 and 2
13. Documents i.e. site plan and photographs Ex.PW1/13 (colly.) (Ex.P3, Ex.P4, Ex.P5, Ex.P6)
14. Application on behalf of plaintiff U/O 23 Ex.PW1/14 Rule 1 of C.P.C.
15. Proceedings since inception of suit Ex.PW1/15 no.305/09 till its withdrawal on 12/04/2010 (colly.) PW1 was cross-examined by Ld. Counsel for defendants and discharged.
12. PW-2 Sh. Om Prakash @ Om Prakash Arora tendered his evidence by way of affidavit Ex.PW2/A and relied upon the Will already Ex.PW1/DA (shown as Ex.PW3/1). PW2 was cross-examined by Ld. Counsel for defendants and discharged.
13. PW-3 is Sh. S.K. Marwah who filed his affidavit as Ex.PW3/A and relied upon documents i.e. GPA dated 10.07.1972 as Ex.PW3/1 and signed on same as attesting witness at point A. PW3 was cross-examined by Ld. Counsel for defendants and discharged.
14. PW-4 Sh. Saurabh Saxena, Diploma Engineer, BSES Rajdhani Power Ltd. produced the record i.e. original CA No.102587021 of which the registered Consumer is Sh. Ajit Singh s/o Sh. Gyani Ram, r/o plot no.495, khasra No.193, TP-0954, Indira Park, Najafgarh and proved the copy of same as Ex.PW4/1 and also deposed that the said electric connection had been installed on 17.05.2008 in the above mentioned plot.
15. Thereafter, vide separate statement of Ld. Counsel for plaintiff, CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 7 of 27 the plaintiff's evidence was closed on 22.09.2017 and matter was fixed for defence evidence.
16. Defendants examined five witnesses in their defence. DW-1 Sh. Jaspal Singh filed his evidence by way of affidavit Ex.DW1/A. He relied upon documents as under:
Sl. No. Particulars of Documents Exhibits/Mark
1. Original site plan Ex.DW1/1
2. Original GPA dated 10.03.1992 Ex.DW1/2
3. Original Agreement to sell dated 10.03.1992 Ex.DW1/3
4. Original Affidavit dated 10.03.1992 Ex.DW1/4
5. Original Receipt dated 10.03.1992 Ex.DW1/5
6. Copy of Will dated 10.03.1992 Mark-A
7. Original copy of GPA dated 20.04.1992 Ex.DW1/6
8. Original Agreement to sell dated 20.04.1992 Ex.DW1/7
9. Original Affidavit dated 20.04.1992 Ex.DW1/8
10. Original Receipt dated 20.04.1992 Ex.DW1/9
11. Original GPA dated 12.07.1991 Ex.DW1/10
12. Original Agreement to sell dated 12.07.1991 Ex.DW1/11
13. Original Affidavit dated 12.07.1991 Ex.DW1/12
14. Original Receipt dated 12.07.1991 Ex.DW1/13.
DW1 was cross-examined by Ld. Counsel for defendants and discharged.
17. DW-2 Sh. Jugal Kishore has tendered his affidavit as Ex.DW2/A. PW1 was cross-examined by Ld. Counsel for defendants and discharged. PW2 was cross-examined by Ld. Counsel for defendants and discharged.
18. DW-3 is Sh. Charan Singh who tendered is evidence by way of CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 8 of 27 affidavit as Ex.DW3/A. DW3 was cross-examined by Ld. Counsel for defendants and discharged.
19. DW-4 is Sh. Anup Singh, Record Keeper, Office of Sub- Registrar-II, Kashmere Gate produced the record i.e. carbon copy of sale deed dated 21.04.1972 vide registration no.8255 and proved the same as Ex.DW4/1 (OSR). He also produced the carbon copy of sale deed dated 01.12.1971 vide registration no.14346 and proved the copy of same as Ex.DW4/2 (OSR). DW4 was cross-examined by Ld. Counsel for defendants and discharged. DW4 was cross-examined by Ld. Counsel for defendants and discharged.
20. DW-5 is Sh. Dharmender Kumar who proved the site plan Ex.DW1/1 and deposed the said site plan was prepared by him after visiting the site. DW5 was cross-examined by Ld. Counsel for defendants and discharged.
21. Thereafter, vide separate statement of Ld. Counsel for defendants, the defendants evidence was closed on 11.03.2019 and matter was fixed for final arguments.
ARGUMENTS HEARD ON BEHALF OF COUNSELS :
22. Ld. Counsel for plaintiff submits that, Late Sh. R P Marwah i.e. father-in-law of the plaintiff was exclusive owner of the suit property and left for heavenly abode on 10.07.1996. It is further averred that, Late Sh. R P Marwah during his lifetime executed Will dt. 18.10.1995 in favour of plaintiff w.r.t. the suit property. It is further submitted that on 15.12.2009 defendants tried to encroach upon the suit property and suit for permanent injunction was filed before the court of Ld. CJ vide CS no. 305/2009. It is further submitted that, during the pendency of the said suit, defendants CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 9 of 27 constructed small portion of 5 sq. yards on the suit property but, due to technical reason, the said suit was dismissed as withdrawn with a liberty to file afresh. Hence, present suit is filed.
23. It is further submitted that, the Will executed by Late Sh. R P Marwah is valid. Hence, defendants have no right, title or interest on the suit property and they have unlawfully trespassed in the suit property. Judgments relied upon by plaintiff are as follows:
a) Madhukar D. Shende vs Tarabai Aba Shedage, 2002 LawSuit(SC) 22;
b) Meenakshiamnal through LR's & Ors. vs. Chandrasekaran & Anr..
Appeal (civil) 1387/1999, decided on dated 03.11.2004, Supreme Court of India;
c) Hon'ble High Court of Delhi, RFA No. 602 / 2006, titled as Pawan Mehra vs Paras Ram, dated 27.09.2018;
d) Hon'ble Allahabad High Court, Second Appeal 112/1988, titled as Pran Sukh vs. Ram Prasad., dated 22.11.2013;
e) Hon'ble Supreme Court of India, Civil Appeal 4527/2009, titled as Poona Ram vs. Moti Ram & Ors;
f) Hon'ble Supreme Court of India, Civil Appeal 83/2008, titled as Dagadabai by LR's vs. Abbas @ Gulab Rustum;
g) Hon'ble Supreme Court of India, Civil Appeal 3594/2006, titled as T. Anjanappa & Ors. vs. Somalingappa & Anr.
24. Per contra, Ld. Counsel for defendants disputed the claim made by the plaintiff. It is submitted that, since present suit has been filed u/s 5 of Specific Relief Act, ownership has to be looked into before passing any order. It is further submitted that, in the entire plaint, plaintiff failed to mention the detail of plots owned by Late Sh. R P Marwah. It is further CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 10 of 27 submitted that, the Will executed by Late Sh. R P Marwah cannot be relied upon as same is forged and fabricated for two reasons. Firstly, Late Sh. R P Marwah used to sign but present Will bears thumb impression. Secondly, admittedly in August, 1995, Late Sh. R P Marwah suffered from a paralytic attack, thus, a person suffering from paralytic attack in the right portion of the body cannot execute Will as per law. It is further submitted that, neither the suit property has been described in clear manner in the Will, nor Will is proved. It is also submitted that, Late Sh. R P Marwah cannot be held as hail and hearty as he was suffering from paralytic attack. It is further submitted that, plaintiff's right are extinguished on the suit property as defendants are in settled possession of the same for the last 20 years at the time of filing of present suit. It is further submitted that, no evidence produced by the plaintiff that she has been dispossessed by breaking the boundary wall in the year 2009. Hence, present suit may be dismissed being without any merit. Judgments relied upon by defendants are as follows:
a) Shyam Sunder Prasad & Ors V. Raj Pal Singh & Ors. (1995) 1 SCC 311;
b) Uma V. M/S Salem Sowdambiga Finance Represented by The Managing Partner, S. Natarajan, Carrying Business At 8/296 Syed Madhar Street, Shevapet, Salem 636 002 and 8 Others. 2009 1 LW 730;
c) Khem Chand & Ors. V. Ram Mehar 2012:DHC:840;
d) Janki Narayan Bhoir V. Narayan Namdeo Kadam AIR 2003 SC 761;
e) Savithri & Ors. V. Karth Yayani Amma & Ors. AIR 2008 SC 300;
f) Rangammal Vs. Kuppuswami and Ors. (2011) 12 SCC 230
25. In rebuttal, Ld. Counsel for plaintiff submits that, defendant CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 11 of 27 have not claimed "adverse possession" in his entire WS. Ld. Counsel for plaintiff further relied upon the hospital bill i.e. Ex.PW1/4 and submits that as per Ex.PW1/4 Late Sh. R P Marwah was hospitalized during 09.08.1995 till 23.08.1995 while the present Will was executed on 18.11.1995 i.e. two months after the discharge and Late Sh. R P Marwah left for heavenly abode on 10.07.1996 i.e. one year after the said paralytic attack. Thus, in this scenario, it can be said that Late Sh. R P Marwah was hail and hearty for execution of the Will in favour of plaintiff. Ld. Counsel for plaintiff also submits that as per the submission of defendants they are in possession of the suit property from the time immortal but, in WS it says from last twenty years, DW2 deposed 1993 and DW1 deposed 1998. Hence, same is contrary and cannot be relied upon. It is submitted that defendant are trespasser and a total stranger to the family of the plaintiff. Hence, cannot claim any right, title or interest in the suit property.
ISSUEWISE ANALYSIS AND FINDINGS ISSUE NO. 1: Whether the suit is hit by Section 185 of the Delhi Land Reforms Act, 1954? OPD
26. Ld. Counsel for both parties did not press upon this issue and submit that bar u/s. 185 of DLR Act is not applicable. In view of above submissions and considering the facts and circumstances of the present case, issue no. 1 is strike off.
ISSUE NO. 2: Whether the plaintiff has no locus standi to file the suit? OPD
27. Onus of proving above issue is on defendant. It is well settled law that, burden to proving facts raised upon the party which substantially CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 12 of 27 asserts the affirmation of the issue. In the matter of Anil Rishi Vs. Gurbaksh Singh (2006) 5 SCC 558 of Hon'ble Supreme Court of India held as follows :
"8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"101. Burden of proof. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
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15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence" indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
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19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate 9 the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 13 of 27 others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
28. The main contention of the defendants is two fold. Firstly, plaintiff has no locus to file the present suit as he could not prove the Will claimed to be executed by Late Sh. R P Marwah. It is submitted that the suit property is not specifically mentioned in the said Will. Secondly, it is submitted that even if Will is proved in favour of plaintiff, he cannot claim any right, title or interest in the suit property as his rights are extinguished by virtue of Section 27 of Limitation Act1. It is further submitted that, defendants are possession of suit property since last 20 years on date of filing of suit.
29. At this juncture, it is imperative to discuss the law of "adverse possession".
LAW ON ADVERSE POSSESSION
30. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three "nec" -- nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity publicly and in extent. Animus possidendi indicates a specific positive intention, on the part of the adverse possessor, to dispossess the actual owner. It is only where such positive intention to dispossess the actual owner exists that the title shifts from the actual owner to the adverse possessor. A person claiming adverse possession 1 27. Extinguishment of right to property.--
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 14 of 27 is required, therefore, to show (i) the date on which he came into possession,
(ii) the nature of his possession, (iii) whether the factum of possession was known to the true owner, (iv) the period for which he remained in possession and (v) that his possession was open and undisturbed. As adverse possession was an essential inequitable plea, seeking to divest a true owner of his right, all these elements have necessarily to be pleaded and proved. Adverse possession, therefore, requires animus possidendi under hostile colour of title.
31. It is a settled law that mere possession for howsoever length of time does not result in converting the possession into adverse possession. What is essential is that there must be intention on the part of person claiming adverse possession to dispossess the true owner. The intention needs to be open and hostile enough to bring the same to the knowledge of true owner and he should have an opportunity to object. A person who bases his title on adverse possession must show by clear and unequivocal evidence that possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitutes adverse possession regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of the case. The crux of the matter is that the possession must start with a wrongful dispossession of a rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.2
32. In Annakili v. A. Vedanayagam3, Hon'ble Supreme Court of India held that 2 S. M. Karim Vs. Bibi Sakina (AIR 1964 SC 1254) 3 AIR 2008 SC 346 CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 15 of 27 '22. Claim by adverse possession has two elements : (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.'
33. In present matter, defendants claim that at the time of purchasing adjoining plots i.e. D-493 AND D-495, they merged inter- between suit plot i.e. D-494 into their plot and raised extensive construction thereby identity of Plot no. D-494 is diluted. Relevant paragraph of WS is reproduced hereinbelow:
'3. That the suit for the relief of Permanent Injunction is also not maintainable as the Plaintiff has not come to the court with clean hands. She has intentionally concealed the true facts from this Hon'ble Court. Admittedly, the relief under the provisions of Specific Relief Act which is a discretion in nature, cannot be granted to a person who does not come to the court with clean hands. The Plaintiff has concealed the true and material facts from this Hon'ble Court in order to play fraud in as much as she has not disclosed that the Defendants are in actual physical possession of the plot no. D-494, Indira park, Najafgarh since last more than 20 years. She has further conealed that the possession of the Defendants over the suit property was even during the life time of Sh.R.P.Marwaha, her alleged predecessor in interest and this fact I was very well known to him. Late Shri R.P.Marwah during his life time took no steps to recover the possession of the plot from the answering Defendants and consequently, his right to recover the possession from the answering Defendants was extinguished by lapse of time. The CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 16 of 27 Plaintiff has further concealed the fact that the Defendants at the time of purchasing the plot no. D-493 and D-495 measuring 200 Sq. Yds. each from the erstwhile owners had amalgamated the same with plot no.D-494 and thereafter raised extensive construction thereupon. It would further be worth while to mention here that all the three plots were converted into two plots by the answering Defendants measuring 300 sq.yds. each by raising construction of an intervening wall upto a height of 10 ft. and thereafter construction in the shape of 4 rooms and an office in one of these plots were raised and the premises were thereafter let out to various tenants, who are in physical occupation thereof since last about 10 years. The other plot measuring 300 sq.yds. was also enclosed by a boundary wall and a tin shed room was also constructed which was being used by the Defendants for storing fodder etc. Both these plots measuring 300 sq.yds. each are thus in the absolute control of the answering Defendants as owners thereof. Thus plot On the one hand, the no.D-494 does not exist at the spot since last about 17- 18 years. Late Shri R.P.Marwah despite knowing this fact very well never raised his little finger and took no action to recover the possession of the plot during his life time. The Plaintiff not only concealed all these facts but she has also distorted the true facts in as much as she is claming to have acquired the rights in respect of the suit plot on the basis of the alleged Will dated 18.10.1995. Plaintiff is claiming that her late father in law Sh.Ram Prakash Marwaha was the joint owner along with Amarjeet Arora and Lakhpat Rai who had purchased the land comprised in khasra no. 193 and other khasras. However, in the same breath, she is claiming to have derived rights in respect of the suit plot from late Shri R.P. Marwah exclusively. The Plaintiff is thus guilty of concealing and suppressing the true material facts and as such, she is not entitled to any relief under the provisions of the Specific Relief Act and the suit thus merits dismissal and the same be dismissed with costs.'
34. However, apart from making above averment no material placed on record by defendants to disclose the date from which either they, or their parents/predecessors came into possession of the suit property, or the manner in which they came into such possession. In fact, there is material contradiction in their claim of adverse possession. Firstly, in their WS, CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 17 of 27 defendants claimed to be in settled possession for 20 years from the date of amalgamation of D-494 in their adjoining plots i.e. D-493 &D-495 while, as per Exh. DW1/2, GPA/ATS/Affidavit/Receipt/Will executed in favour of Defendant No. 2 w.r.t. Plot No. D-493 on 10 th March 1992 by Smt. Raminder Kaur who claim to have purchased the same from erstwhile owner Late Ram Prakash Marwaha (being Director of National Land & Housing Corporation). Further, as per Exh. DW1/6, GPA/ATS/Affiavit/Receipt/Will executed in favour of Defendant No. 2 w.r.t. Plot No. D-495 on 20 th April 1992 by Dr. G.K. Gambhir whose chain documents also include name of Late Ram Prakash Marwaha (being Director of National Land & Housing Corporation). While, earlier suit was instituted on 19.12.2009. Thus, plea of settled possession for last 20 years has no merit. Secondly, DW1 deposition is beyond the pleading as he came with the new defence that 'As matter of fact, the subject plot comprised of plot no. 494 was transferred by late Sh. R.P. Marwah during his life time and therefore, at the time of his death, he was not the owner of said plot.' DW1 further deposed as follows:
'6. I state that in fact, the deponent alongwith his late father was retaining the actual physical possession of plot no. D-494 since atleast two decades prior to the institution of the present suit. The plot was lying in between the two plots purchased by the late father bearing plot no.D-493 and D-495 Indira Park, which was purchased by him through conveyance documents executed by the erstwhile owners. However, since the plot No.494 measuring 200 sq.yds. was lying vacant and no person was claiming any title in respect thereof including late Sh. R.P. Marwah, therefore, the deponent and his father occupied the same by amalgamating the said plot into their own plots.'
35. But, on the contrary, DW1 during cross examination deposed as follows:
' Ques: I put it to you that plot no. D-494 falls between plot No. D-493 and D-495?
CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 18 of 27 Ans: Earlier it used to fall between D-493 AND D-495. However, 100 sq yds portion of plot no. D-494 have been merged in Plot No. D-493 and remaining 100 sq yards have been merged in D-495 in the year 1998'
36. Further, during his testimony DW1 specifically admitted the fact that, colony known as Indira park was carved out by Late Sh. R.P Marwah and his partners but, no material produce on record to show that Plot no. D-494 has been sold by Late Sh. R.P. Marwah or he had knowledge of possession of suit plot with the defendants.
37. Thus, considering the facts and circumstances of present case, rights of plaintiff can't be said to be extinguished. Concept of adverse possession is completely distinct from continuous possession over a long period of time. Mere continuous possession can not ripen into title, or entitle the possessor to continue to remain in possession. Hence, it can't be said that, plaintiff has no locus to file present suit. Issue No. 2 decided in favour of plaintiff and against the defendants.
ISSUE NO. 3: Whether the suit is barred by limitation? OPD
38. Limitation Act, 1963 provides following provisions for possession:
DESCRIPTION OF PERIOD OF TIME FROM
SUIT LIMITATION WHICH PERIOD
BEGINS TO RUN
64. For possession of Twelve years. The date of
immovable property dispossession.
based on previous
possession and not on
title, when the plaintiff
while in possession of
CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 19 of 27
the property has been
dispossessed.
65. For possession of Twelve years. When the possession of
immovable property or the defendant becomes
any interest therein adverse to the plaintiff.
based on title.
Explanation.--For the
purposes of this article
--
(a) where the suit is by
a remainderman, a
reversioner (other than
a landlord) or a
devisee, the possession
of the defendant shall
be deemed to become
adverse only when the
estate of the
remainderman,
reversioner or devisee,
as the case may be,
falls into possession;
(b) where the suit is by
a Hindu or Muslim
entitled to the
possession of
immovable property on
the death of a Hindu or
Muslim female, the
possession of the
defendant shall be
deemed to become
adverse only when the
female dies;
(c) where the suit is by
a purchaser at a sale in
execution of a decree
when the
CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 20 of 27
judgmentdebtor was
out of possession at the
date of the sale, the
purchaser shall be
deemed to be a
representative of the
judgment-debtor who
was out of possession.
39. Section 27 of the Limitation Act provides as follows:
'27. Extinguishment of right to property.--
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.'
40. In P.T. Munichikkanna Reddy & Ors vs Revamma And Ors4, Hon'ble Supreme Court of India held that '. ... to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "wilful neglect" element on part of the owner established.
Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.'
41. But, in present matter neither wilful neglect nor animus possidendi proved. In fact, possession by defendants can't be held continues, 4 AIR 2007 SUPREME COURT 1753, 2007 (6) SCC 59, 2007 AIR SCW 2897, 2007 (4) AIR KAR R 227, 2007 (6) SCALE 95 CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 21 of 27 uninterrupted and hostile to true owner. The defendants are required to state the date from which they came into possession as well as the date on which the possession became adverse to the interest of the actual owner, if at all it did. Assertion of uninterrupted possession or of acquisition of an absolute title by dint thereof are insufficient to make out a case of perfection of title by adverse possession. The defendants must hold the land adverse to the title of the true owner. No electricity/water bills, municipal or any other statutory record produced on record by the defendants to show their continuous possession for 12 years. Infact, defendants pleaded that the suit property i.e. D-494 is not existed at all being merged with adjoining plot. This court does not find any merit in this submission. Animus possidendi must be shown to exist at the time of commencement of the possession and must continue throughout the period of twelve years which, is absent in present matter. Hence, suit can't be said to be barred by limitation. Issue No. 3 is decided in favour of plaintiff and against the defendants.
ISSUE NO. 4: Whether Shri R.P. Marwah had executed the Will dated 18 th October, 1995 as his last and valid Will and testament? If so, to what effect? OPP
42. For the purpose of clarification, contents of the Will is reproduced here-in-below:
"W I L L Life is short and uncertain and nobody known when it may come to an end, hence, I, Ram Prakash Marwah son of late Shri Angat Ram Marwah aged about 80 years appox. resident of B-63, Rama Park, Main jafgarh Road, Nawada New Delhi, do hereby make this Will which is my last Will in order to avoid any confusion or misunderstanding regarding inheritance of the properties which I may be found to be possessing at the time of my death.
I am a married man and my wife has already expired. However I CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 22 of 27 was having three sons namely (1) Shri Surender Kumar Marwah (2) Shri Suresh Kumar Marwah and (3) Ramesh Marwah. Out of my above mentioned sons, two namely Suresh Marwah and Ramesh Marwah have already expired leaving behind their family and children. I have spent a huge amount on the settlement of the children and family of my above mentioned sons. It may be mentioned here that I have already given to Smt. Rani Marwah w/o late Shri Ramesh Marwah, a constructed house on land measuring 300 sq. yds, Bearing No. B-63-64, Rama Park, Nawada, New Delhi and 50% share in the constructed commercial property bearing No.B-8, Main Najafgarh Road, Rama Park, Nawada, New Delhi and another property i.e. Plot No. A-1/A on which six shops are constructed which is situated in Rama Park, Nawada, Delhi besides giving substantial amount in cash.
I also have three daughters namely (1) Smt. Vinod wife of Shri Gurbir Singh (2) Smt. Vijay Bhalla W/o Shri Hardev Singh Bhalla and (3) Smt. Sandhya Malhotra W/o Shri Ravinder Malhotra I have also spent huge amount of money on their respective marriage and they are well settled in their matrimonial home.
That I have been residing with my eldest son namely Shri Surender Kumar Marwah and his family. My son Surender Kumar Marwah and his wife Smt. Prem Rani are looking after me and rendering all kind of help and service to me in my old age.
That I am exclusive owner of (1) House No. 8-62-63, Area measuring 300 sq. yds. comprising of Khasra No. 518, Situated in the area of Village Nawada, Delhi, Abadi known as Rama Park, Najafgarh Road, Nawada, New Delhi, (2) I am also having 1/2 share in property bearing No. B-8, area measuring 250 sq. yds. appox. situated in the area of village Nawada, Delhi, Abadi known as Rama Park, Main Najafgarh Road, Nawada, New Delhi and (3) having some unsold plots in my own name or jointly with my partners Shri Lakhpat Rai and Shri Amarjit Singh Arora Situated in the colony known as Indra Park, area of Village Maksookabad, Najafgarh, New Delhi.
That for the reasons mentioned above, I wish that after my death above mentioned properties should go and devolve upon my loving and devoted daughter in-law namely Smt. Prem Rani w/o Shri Surender Kumar Marwah.
Needless to mention that I shall remain owner of above mentioned properties during my life time.
CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 23 of 27 I am hale and hearty and I am executing the present Will out of my own free Will and consent and without any pressure, so that no dispute or confusion arises regarding inheritance to my above mentioned properties.
IN WITNESS WHEREOF: I have thumb impression this Will on the 18th day of October, 1995, in the presence of the following witnesses who have also signed the same as attesting witnesses in my presence and in presence of each other at the same time."
43. Admittedly, defendants are neither legal heirs nor having any relationship with Late Shri R.P. Marwah. In other words, they are totally stranger to Late Shri R.P. Marwah. Thus, primary question before this court is, whether a stranger or trespasser of property can challenge the execution of Will merely on suspicion?
44. In Madhukar D Shende Vs. Tarabai Aba Shendage5, Hon'ble Supreme Court of India held as follows:
'The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge 1838, 2 Lewis CC 227 may be apposite to some extent "The mind was apt to take a pleasure in adapting 5 2002 LawSuit(SC) 22 CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 24 of 27 circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative.
It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance.'
45. Ld. Counsel for defendants submit that, plaintiff failed to prove Will in terms of Indian Evidence Act as Late Sh. R.P. Marwah was not fit for execution of Will being suffering from Paralytic attack, PW2 is incompetent CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 25 of 27 to attest Ex. PW1/DA being draftsman of Will and Late Sh. R.P. Marwah used to sign but, Ex. PW1/DA bears his thump impression hence, can't be admitted.
46. This court carefully gone through the entire material placed on record but, find no merit in the submissions made by the defendants. It is well settled law, at the time of execution of Will, testator must be 'in fit state of mind'. A person who is paralyzed lacks the ability to control a muscle or to command the muscles gathered together in one piece of their body but, can't be said to 'mentally unfit'. Moreover, reason for affixing thump impression of LTI properly explained by the plaintiff, as Late Sh. R.P. Marwah's right side body stiffed due to paralytic attack. Thus, considering the facts and circumstances of present case, there is no reason before this Court to disbelieve the execution of Will. Hence, this issue is also decided in favour of Plaintiff.
ISSUE NO. 5: Whether the plaintiff is entitled to the decree for possession and permanent injunction as prayed? OPP
47. In view of foregoing discussion and the finding given by this court, while adjudicating issue no. 1 to 4, plaintiff is held entitled for decree of possession as well as permanent injunction in his favour qua the suit property as the possession by defendants cannot be held adverse to the plaintiff. This court also taken note that no extensive construction carried out on the suit plot till date and it consists of merely boundary wall in middle of the plot as per defendants. Relevant deposition of DW1 is as follows:
"Plot no. D494 consists of one latrine and bathroom and water tank of admeasuring 10x10' and there is no construction on the said plot. (vol. There is a boundary wall in the middle of CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 26 of 27 the plot."
48. In view of above facts and circumstances, this issue is decided in favour of plaintiff and against defendants.
Issue no. 6: Relief/ (CONCLUSION)
49. Present suit is decreed in favour of plaintiff. Decree of possession qua the suit property i.e. plot bearing No.D-494, admeasuring 200 sq.yds., part of Khasra No.193, situated in colony known as Indra Park, Village Masudabad, Near Najafgarh, New Delhi in passed in favour of plaintiff and against the defendants. Decree of permanent injunction is also passed in favour of plaintiff and against the defendants. Defendants are restrained to create third party interest in suit property.
50. Cost is also awarded to the plaintiff. .
51. Decree Sheet to be prepared accordingly.
Digitally signedAnnounced in open court SHILPI by SHILPI M
JAIN
on 22.07.2024 M JAIN 2024.07.22
Date:
15:48:23 +0530
(SHILPI M JAIN)
District Judge05, South West District
Dwarka Courts, New Delhi
CS No. 17427/16 Prem Rani Marwah Vs. Jaspal Singh and ors Page No. 27 of 27