Delhi District Court
Sh. Rajender Sharma vs Sh. Ved Prakash on 18 July, 2012
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no:242/07
ID NO.02402C05385422004
Sh. Rajender Sharma
S/o Late Sh. Ram Chander Sharma
R/o B-4/14, Krishna Nagar
Delhi-51. .... Plaintiff
Versus
Sh. Ved Prakash
S/o Late Sh. Lal Chand Sharma
R/o B-6/14, Krishna Nagar,
Delhi-51. .... Defendant
SUIT FOR RECOVERY OF POSSESSION
Date of institution of the Suit : 20.01.2004
Date on which judgment was reserved : 28.05.2012
Date of decision : 18.07.2012
Decision : Suit Dismissed
JUDGMENT
This is a suit for recovery of possession. The version of the plaintiff is that the plaintiff is the owner of property No. B-6/14 Krishna Nagar, Delhi as shown in the site plan from point A to D. The father of the plaintiff had purchased the aforesaid plot no. B-6/14, Krishna Nagar, Delhi in the name of the plaintiff vide registered sale CS no: 242/07 Page No: 1/22 deed dated 15.06.1961.
2. It is further the case of the plaintiff that a temple was constructed in the year 1961 on the said plot bearing no. B-6/14, Krishna Nagar, Delhi. On the request of Pujari Lal Chand (father of the defendant), he was appointed as pujari in the temple Laxmi Narain Mandir, Meera Mandal by the father and mother of the plaintiff.
3. It is further the case of the plaintiff that the defendant's father Pujari Lal Chand had also requested the father of the plaintiff to arrange for his residence and the father of the plaintiff allowed him to reside in some portion of his house at B-4/13, Krishna Nagar, Delhi in the year 1963 as a licencee for two years.
4. It is further the case of the plaintiff that thereafter in the year 1965 Pujari Lal Chand alongwith his family was allowed to live in the back portion of the temple comprising of two rooms, toilet and bathroom and other accommodation in the property no. B-6/14, Krishna Nagar, Delhi (herein after referred to as suit premises) as shown in red colour in the site plan as a licencee by the father of the plaintiff. Pujari Lal Chand expired in the year 1978. After the death of the father of the CS no: 242/07 Page No: 2/22 plaintiff in 1970 the plaintiff had also permitted the defendant to continue in possession of the suit premises as a licencee and to look after the suit property.
5. It is further the case of the plaintiff that however the defendant has malafide intentions to grab the suit property. The defendant has one son and his wife is also running a beauty parlour in the name of " Sun Shine Beauty Parlour" in a portion of the suit premises. The defendant with the help of some other persons had also illegally formed a new trust in the name of Pt. Lal Chand Meera Mandal Trust to grab the suit property. A complaint was lodged by the mother of the plaintiff at PS Krishna Nagar in this respect on 05.11.2003. The defendant had also threatened to sell the suit property.
6. It is further the case of the plaintiff that the defendant is the son of deceased Pujari Lal Chand and he does not know the work of Pujari nor he has functioned as a Pujari in any temple and therefore the plaintiff is not interested to keep the defendant and his family members in the suit premises. The plaintiff has further pleaded that he has canceled the licence of the defendant and called upon the defendant to CS no: 242/07 Page No: 3/22 hand over the vacant and peaceful possession of the suit premises to the defendant. Legal notice dated 18.09.2003 was also served upon the defendant in this respect, however the defendant has not vacated the suit premises.
7. The plaintiff has therefore claimed that the defendant is liable to vacate the suit premises and has prayed for a decree of recovery of possession in respect of the suit premises.
8. The defendant appeared before the court pursuant to service of summons and filed his written statement. The defendant pleaded that the father of the defendant had purchased property no. B-6/14, Krishna Nagar, Delhi from the plaintiff and his father Sh. Ram Chander for a sum of Rs.4500/- and because of cordial relations between the parties the transaction was done orally and was not reduced into writing. He further pleaded that the vacant possession of plot no. B-6/14, Krishna Nagar, Delhi was also handed over to the defendant's father on 13.04.1962 and after the demise of his father the defendant is the owner of the suit property. The defendant further pleaded that he is in possession of the suit premises since the year 1962 and as such he has CS no: 242/07 Page No: 4/22 become the owner of the suit premises by way of adverse possession as well.
9. The defendant further pleaded that his father had purchased plot no. B-6/14, Krishna Nagar, Delhi from the plaintiff and his father and had constructed a temple on the same from his own funds, sources and collections and thereafter he also purchased the adjoining property no. B-5/14, Krishna Nagar, Delhi on 21.11.1964 and further constructed and developed a temple on the same himself.
10. The defendant further denied that the plaintiff's father had appointed Pujari Lal Chand as Pujari of Laxmi Narain Mandir, Meera Mandal. The defendant averred that it was the father of the defendant who after purchase of the property from the plaintiff developed and constructed the temple from the donations and collections of the public at large and founded the Laxmi Narain Mandir, Meera Mandal. The defendant averred that the temple was constructed in the year 1962 after purchase of the suit property by the father of the defendant.
11. The defendant further averred that his daughter in law is CS no: 242/07 Page No: 5/22 presently running a beauty parlour in the suit premises and earlier she was running an STD/PCO Shop and prior to that the son of the defendant was running a ready made garments shop in the suit premises in the name and style of M/s. Indian Fashion therein since 1993 up to April 1997. The defendant averred that he and his family members are using the suit premises without any hindrance and hurdle from any quarter whatsoever.
12. The defendant further averred that for the smooth functioning of the temple the defendant formed the Pandit Lal Chand Meera Mandal Trust. The defendant further stated that the mother of the plaintiff was having an evil eye on the donations and properties of the temple and she had created another trust of the temple on 17.10.2000 in the name of Laxmi Narayan Mandir Meera Mandal Trust.
13. The defendant denied that his father was inducted as a licencee in the suit premises in the year 1965. The defendant further denied that he is a licensee in respect of the suit premises or that his license has been canceled or that he is liable to vacate the suit premises. The defendant prayed for dismissal of the suit.
CS no: 242/07 Page No: 6/22
14. Plaintiff filed replication and denied the averments of the written statement of the defendant and simultaneously reiterated and reaffirmed the contents of the plaint.
15. Vide order dated 16.02.2006, on the basis of the pleadings of the parties, the following issues were framed in this case:
1. Whether the suit is barred by limitation? OPD
2. Whether the plaintiff has claimed ownership by adverse possession? OPD
3. Whether the plaintiff has not come before this court with clean hands and has suppressed the material facts? OPD
4. Whether the suit is barred under Section 115 of Indian Evidence i.e. Law of Estoppel? OPD
5. Whether the plaintiff is entitled to decree of possession of suit property? OPP
6. Relief
16. In order to prove his case the plaintiff examined himself as PW-1 and deposed on the lines of the plaint. On the other hand, the defendant has examined four witnesses. The defendant examined himself as as DW-1, Sh. Ajay Kumar Gupta AZI from house tax CS no: 242/07 Page No: 7/22 department, MCD as DW-2, Smt. Janki from the office of Sub Registrar- IV as DW-3 and Sh. Satyapal, record attendant from the department of Delhi Achieves as DW 4.
17. I have heard the Counsels for the parties and have given due consideration to the contentions and carefully perused the record. My issue-wise findings are as follows:
Issues no. 1 to 4
18. Issue no. 1 to 4 being interlinked are being decided together. PW-1 has deposed on the lines of the plaint. PW-1 has deposed that his father had purchased property no. B-6/14, Krishna Nagar, Delhi in the name of the plaintiff. The sale deed in the name of the plaintiff is Ex. PW-1/ 1. The site plan of the suit property is Ex. PW-1/2. PW-1 has further deposed that the temple was constructed in the year 1961 and Pujari Lal Chand alongwith his family was allowed to reside in the back portion of the temple in property bearing No. B-6/14, Krishana Nagar, Delhi in the year 1965 as licensees.
19. PW-1 further deposed that Pujari Lal Chand expired in the CS no: 242/07 Page No: 8/22 year 1978 and since the defendant does not know the work of Pujari nor he has worked as a Pujari in any temple therefore the plaintiff is not interested to keep the defendant and his family members in the suit premises. PW-1 further deposed that the license of the defendant has been terminated vide legal notice dated 18.09.2003. The legal notice and the postal receipts are Ex. PW-1/3 to Ex. PW-1/5. The plaintiff has sought recovery of possession in respect of the rear ground floor portion of property no. B-6/14 Krishna Nagar, Delhi shown in red colour in the site plan comprising of two rooms, toilet and bathroom.
20. It is clear from the site plan that the two properties B-6/14 and B-5/14, Krishna Nagar, Delhi are adjacent to each other. Property bearing no. B-6/14 which is in the name of the plaintiff is bounded by points ABCD in the site plan. There is a temple existing in a part of the property bearing no. B-6/14 on the northern side and over the entire property bearing No. B-5/14, Krishna Nagar, Delhi. The portion shown in the red colour on the southern side of property bearing no. B-6/14 is stated to be in possession of the defendant and the plaintiff seeks to recover the possession of this portion shown in red colour in the site plan on the southern side of property No. B-6/14, Krishna Nagar, Delhi.
CS no: 242/07 Page No: 9/22
21. It is also clear from the evidence on record that the father of the defendant namely Pujari Lal Chand was the registered owner of property No. B-5/14 Krishna Nagar, Delhi. Certified copy of the sale deed is Ex. PW- 4/1.
22. The version of the plaintiff is that Pujari Lal Chand was inducted as a licenee in the suit premises (portion shown in red colour in the site plan on the ground floor of the property bearing no. B-6/14, Krishna Nagar, Delhi) in the year 1965 since he was to work as a Pujari in the temple.
23. The Plaintiff has examined only himself as PW-1. No other witness has been examined by the plaintiff. There is no license deed on record. There is no other documentary or oral evidence to show that Pujari Lal Chand was inducted as a licencee in the suit premises. On perusal of the evidence on the record, I am of the opinion that the plaintiff has failed to establish that Pujari Lal Chand was inducted as a licencee in the suit premises.
CS no: 242/07 Page No: 10/22
24. First of all it is pleaded in the plaint and PW-1 has deposed in his examination in chief that the temple was constructed in the year 1961 and Pujari Lal Chand was inducted as a licencee in the year 1965. However, in his cross examination PW-1 has categorically admitted that since 13.04.1962 Pujari Lal Chand alongwith his family members are in possession of suit premises. Therefore, this assertion of the plaintiff that Pujari Lal Chand was inducted in the suit premises in the year 1965 has been proved to be incorrect.
25. Moreover Pujari Lal Chand was the registered owner of the adjacent property bearing no. B-5/14 Krishna Nagar, Delhi. The sale deed of the said adjacent property bearing no. B-5/14 Krishna Nagar, Delhi is Ex. PW-4/1 and the same is in the name of Pujari Lal Chand. The said property was purchased on 21.11.1964. In the sale deed Pujari Lal Chand has been described as founder of Laxmi Narain Mandir, Meera Mandal. His address has been shown as B-6/14, Krishna Nagar, Delhi which shows that on the date of the execution of the sale deed in respect of property bearing No. B-5/14 Krishan Nagar, Delhi Pujari Lal Chand himself was in possession of property bearing No. B-6/14, Krishna Nagar, Delhi.
CS no: 242/07 Page No: 11/22
26. Further it is clear that a temple has been constructed on the entire property bearing no. B-5/14 and a part of property no. B-6/14, Krishna Nagar, Delhi. Therefore the entire temple could not have been constructed in the year 1961. This assertion of the plaintiff is also therefore false.
27. Further more when Pujari Lal Chand himself was the registered owner of property bearing No. B-5/14 over which the temple is also situated, there was no reason for him to be inducted as a licencee on the ground that he was functioning as pujari in the temple. Moreover neither there is any licence deed nor there is any independent evidence to show that Pujari Lal Chand was inducted as a licence by the father of the plaintiff.
28. Further PW-1 has deposed after the death of Pujari Lal Chand, the defendant or any of his family members are not well versed with the functions of pujari and therefore the plaintiff is not interested to keep the defendant and his family members in the suit premises. However it is seen that Pujari Lal Chand expired in the year 1978. When CS no: 242/07 Page No: 12/22 the defendant or any other his family members were not capable of doing the work of pujari, why their licence was not immediately terminated and why no action was taken by the plaintiff since 1978 till 2003 has not been explained by the plaintiff.
29. Thus since 1978 till September 2003 the defendant and his family members remained in possession of the suit premises without any objection from the side of the plaintiff. During this period the son of the plaintiff started business of readymade garments from the suit premises under the name and style of M/s. Indian Fashion in 1993 which continued upto April 1997. The daughter in law of the defendant started an STD/PCO booth and thereafter she has been running a beauty parlour in the suit premises. DW 1 has categorically deposed in this respect. There is no evidence to the contrary and moreover this has not been specifically denied by PW 1.
30. The plaintiff is residing at B-4/13, Krishna Nagar, Delhi which is in the same locality and moreover the plaintiff claims that he and his family members are involved in the activities of the temple. Therefore, it cannot be said that plaintiff was not aware of all these CS no: 242/07 Page No: 13/22 activities being carried out by the defendant and his family members in the suit premises. Therefore the possession of the defendant and his family members and their activities in the suit premises were open and well within the knowledge of the plaintiff.
31. Further more the PW-1 has admitted that the electricity and water connections in the suit premises are in the name of the defendant and his family members. The electricity bill is Ex. DW-1/2 and the telephone bill is Ex. DW-1/3.
32. The defendant has further placed on record House Tax Assessment documents which are Ex. DW-2/A and Ex. DW-2/B. House Tax Receipts are Ex. DW-1/4 to Ex. DW-1/9. The house tax assessment documents Ex. DW-2/A and Ex. DW-2/B show that fresh construction was carried out in the suit premises in the year 1988-89. The rateable value was also increased. As per these documents, the house tax was amended and the reason for amendment was new construction carried out by the defendant. The plaintiff could not explain the same.
33. It is therefore clear that fresh construction was also made CS no: 242/07 Page No: 14/22 by the defendant and his family members in the suit premises which was assessed to house tax. The house tax receipts are in the name of the defendant. It cannot be said that this construction was not with in the knowledge of the plaintiff who is residing in the same locality and who was also involved in the affairs of the temple. During the cross examination of DW-1 it was put to him that there are two rooms, one toilet and one kitchen shed on the first floor of the property no. B-6/14, Krishan Nagar, Delhi and he accepted the same. Thus the plaintiff is well aware of this construction on the first floor which is in possession of the defendant. This construction has also not been shown in the site plan. No suggestion to the contrary was given to DW-1. It is therefore clear that although this construction was made by the defendant afterwards, no action was taken by the plaintiff.
34. All these factors clearly show that the defendant was treating the suit premises as his own property. The possession of the defendant in the suit premises was therefore as that of an owner and not as that of a licencee. The actions of the plaintiff also show that the defendant was not being treated as a licencee. Therefore the plaintiff has not been able to establish that the defendant or his father was inducted as CS no: 242/07 Page No: 15/22 a licensee in the suit premises.
35. However the defendant has claimed himself to be the owner on the basis of an oral sale. However sale cannot be concluded in the absence of a registered sale deed. Hence the defendant or his father cannot be said to be the legal owners of the suit property on the basis of the said oral sale.
36. The next contention of the defendant is that he has become the owner of the suit premises by way of adverse possession.
37. A person who fails to file a suit for recovery of possession within the prescribed period of limitation, his right to such property is extinguished in view of section 27 of the Limitation Act. Reference may be made to the judgment titled as "Prem Singh v. Birbal" reported as AIR 2006 SUPREME COURT 3608. Once the rights of the true owner are extinguished the rights of the person in adverse possession are creat- ed. Once the person in adverse possession has a right it is open to him to get the same declared by way of a suit. However the possession of the CS no: 242/07 Page No: 16/22 person claiming to be in adverse possession must be open, continuous and hostile to that of the true owner.
38. In the judgment titled as Kshitish Chandra Bose vs Commissioner Of Ranchi, reported as AIR 1981 SC 707 it was held by the Hon'ble Supreme Court:
" ....All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner....."
39. The defendant and his family members are in possession of the suit premises since 13.04.1962 without any hindrance from any quarter whatsoever. They have made constructions in the suit premises, used it for commercial activities and all the utilities are in their names. The house tax is also in their name. All these facts were well within the knowledge of the plaintiff. Hence the the possession of the defendant in the suit premises was open, hostile and adverse to that of plaintiff. ' Animus possidendi' i.e. t he intention to possess and hold as owner to the exclusion of the actual owner is a very important factor and the facts CS no: 242/07 Page No: 17/22 and circumstances clearly reveal the existence of such animus.
40. The mere fact that the defendant went abroad at some point of time in between would not amount to interruption in the continuous possession since his family members were residing in the suit premises only and there was no intention to vacate the suit premises. The defendant continued to be in actual and constructive possession of the suit premises possessing the necessary animus at all times.
41. The defendant has contended that his father came into possession of the suit premises on account of oral sale of the property on 13.04.1962. This theory of oral sale is in consonance with the conduct of the parties during the next more than 40 years which goes on to show that the possession of the defendant and his family members was adverse to that of the plaintiff.
42. In the judgment titled as Achal Reddi vs Ramakrishna Reddiar reported as AIR 1990 SC 553 while dealing with the question of adverse possession it was held by the Hon'ble Supreme Court:
" ...........The position is different in the case where in pursuance of an CS no: 242/07 Page No: 18/22 oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property....."
43. In the judgment titled as State Of West Bengal vs The Dalhousie Institute Society reported as AIR 1970 SC 1778 it was held by the Hon'ble Supreme Court:
" ...........As to what exactly is the legal effect of such possession has been considered by this Court in Collector of Bombay v. Municipal CS no: 242/07 Page No: 19/22 Corporation of the City of Bombay, 1951 AIR SC 469 as follows:
...the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. ......"
44. Adverting to the facts of the case, the material on record clearly establishes that the possession of the defendant was adverse to that of the Plaintiff who had abdicated his ownership and possessory rights in respect of the suit premises. The defendant having been in possession of the suit premises for more than 12 years has perfected his title by way of adverse possession. Since the plaintiff failed to file a suit for recovery of possession within the prescribed period of limitation of 12 years his title to the suit premises stands extinguished by virtue of section 27 of the Limitation Act. The defendant has accordingly become CS no: 242/07 Page No: 20/22 owner of the suit premises by way of adverse possession and the present suit is barred by limitation.
45. These issues are therefore decided in favour of the defendant and against the plaintiff.
Issue No. 5
46. The plaintiff has failed to establish that the defendant was inducted as a licensee in the suit premises. I have already held that the defendant has become owner of the suit premises by way of adverse possession and the present suit is barred by limitation.
47. The plaintiff is therefore not entitled to recover the possession of the suit premises from the defendant.
48. This issue is therefore decided in favour of the defendant and against the plaintiff.
CS no: 242/07 Page No: 21/22 RELIEF
49. In view of the foregoing reasons the plaintiff is not entitled to the relief claimed. The suit of the plaintiff is therefore dismissed. Parties are left to bear their own costs. Decree Sheet be accordingly prepared. File be consigned to Record Room thereafter.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 18.07.2012 CCJ/ARC(East)
(Judgment contains 22 pages.) KARKARDOOMA COURTS,
DELHI
CS no: 242/07 Page No: 22/22