Delhi District Court
Rca No.22/2012: "Smt.Kamla Yadav vs Bidhi Singh (Deceased) Thru L.Rs" Dod: ... on 14 August, 2014
RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEI:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal No.22/2012
UID No.: 02405C0093232012
In the matter of:
Smt.Kamla Yadav,
W/o Shri K.L Yadav,
R/o ER19, Inderpuri,
Village Naraina, New Delhi110 012.
.....Appellant
(Through Shri K.S Sharma, Advocate)
Versus
Shri Bidhi Singh (Deceased)
S/o Shri Sukhdev Singh
Through L.Rs
(a) Shri Sunil Kumar,
S/o Shri Bidhi Singh.
(b) Shri Narender Kumar,
S/o Shri Bidhi Singh.
Both R/o RZJ39/261,
West Sagarpur,
New Delhi110 046.
.....Respondents
(Through Shri Amarjeet Singh, Advocate)
Date of Institution of Appeal : 16.05.2012
Date of transfer to this court : 28.08.2012
Date of reserving judgment : 08.07.2014
Date of pronouncement : 14.08.2014
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RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014
APPEAL U/o 41 CPC AGAINST THE IMPUGNED JUDGMENT & DECREE Dated 02.04.2012,
PASSED BY SHRI AMIT KUMAR, THE THEN Ld.SCJ/RC (WEST) IN CS No.S493/10/91,
TITLED AS, "SHRI BIDHI SINGH (DECEASED) THRU L.Rs V/s Smt.KAMLA YADAV"
14.08.2014
J U D G M E N T:
The appellant was defendant before the Ld.Trial Court in a suit for recovery of possession and damages filed against her by the father of respondents namely Shri Bidhi Singh, being CS No.493/10/91, which was decreed by the Ld.Trial Court vide judgment dated 02.04.2012 (hereinafter referred to as the "impugned judgment").
2. For the sake of convenience, the parties in this judgment henceforth are being referred to as per their respective status before the Ld. Trial Court.
3. Before adverting to the grounds taken by the defendant to challenge the impugned judgment, it would be appropriate to have a brief scrutiny of the facts, as borne out from the trial court record. Plaintiff was the owner of land comprised in Khasra Nos.1649 and 1647, in the revenue estate of Naraina, Inderpuri, New Delhi, admeasuring 2400 sq.yds. and bearing property numbers ER15 to ER20 (hereinafter referred to as "estate"). The estate was suitably detailed in site plan placed on record by the plaintiff interalia showing the land being under the possession of following persons:
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(i) 740 sq. yards in possession of Mandir (ER15 & ER16);
(ii) 400 sq. yards in possession of Shri Inderjeet Verma (ER17);
(iii) Land shown in blue colour bearing "x" mark was earlier in possession of defendant, but under the decree of possession passed in favour of plaintiff and against the defendant, the possession thereof was taken by the plaintiff (220 sq. yards) (part of ER18);
(iv) Portion shown in red colour in possession of defendant (180 sq. yards) (partly in ER18 and partly in ER19) and;
(v) 760 sq. yards in possession of Shri Anil Kumar Goel and Shri Satya Narain Gupta (partly in ER19 & ER20).
4. In the year 1976, the possession of estate was sought to be taken forcibly by Delhi Development Authority on the premise that the same was part of Khasra No.1652/1, which stood acquired by the Government by way of Award No. 1380, dated 31.08.1962. The plaintiff filed a suit against Delhi Development Authority and Municipal Corporation of Delhi being CS No.319/83, which was decided by Shri R.K Yadav, the then Ld.SubJudge vide judgment dated 23.01.1985, interalia holding the plaintiff to be owner of the estate and the land comprised therein falling in Khasra No.1647 and not in Khasra No.1652/1. Sometime in the year 1986, the defendant unauthorizedly encroached upon an area of about 400 sq. yards falling in ER18 and ER19. The area of 220 sq. yards out of the aforesaid encroached area presently stands vacated by the defendant. The area of 180 sq. yards comprising in ER Nos.18 & 19 is still in possession of the defendant (shown in red colour in site plan Ex.PW1/A) (hereinafter referred to as the "suit property"). The defendant tried to make some illegal construction in the suit property which led RCA U/o 41 CPC: "RCA Dismissed" Page 3 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 to the plaintiff filing a police complaint against her on 10.12.1989. Thereafter, the defendant filed a suit for permanent injunction against the plaintiff, being CS No. 632/1989, interalia seeking a decree of permanent injunction restraining the plaintiff from dispossessing her from the suit property without following the due process of law. The said suit was disposed off by the Ld.Trial Court on the basis of statement of learned counsel for the plaintiff recorded in court on 06.03.1990 to the effect that the defendant would not be dispossessed from the suit property without following the due process of law. Thereafter, on 28.12.1989 the plaintiff issued a legal notice to the defendant asking her to vacate the suit property, but to no avail and as such, the suit in question was filed by the plaintiff on 11.04.1991.
5. After getting served with the summons, defendant filed written statement, interalia claiming herself to be in the adverse possession of suit property since the year 1962 and having electricity and water connection in her name and she been paying housetax to the authorities. It was also claimed that the suit property had been sold by the plaintiff to one Shri Anil Kumar Goel vide sale deeds dated 16.05.1997 and 20.06.1997 and as such, he had no right, title or interest left in the suit property. The Ld.Trial Court at that time vide order dated 29.11.1997 dismissed the suit by believing the stand of defendant. Against the order dated 29.11.1997, the plaintiff filed an appeal before the Hon'ble High Court being RFA No.68/1998, which was allowed vide judgment dated 08.05.2008, whereby the order dated 29.11.1997 was set aside and the matter was remanded back to the Ld.Trial Court to dispose off the matter on merits. The reasoning given by the Hon'ble High Court in setting aside the order dated 29.11.1997 was that even if a part of ER19 was sold by the plaintiff to said Shri Anil Kumar Goel, some part thereof remained with him RCA U/o 41 CPC: "RCA Dismissed" Page 4 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 and as such, he was found to have locusstandi to file the suit. Thereafter, after completion of pleadings issues were framed in the matter. The issues were subsequently amended and finally vide order dated 12.10.2009, following issues were framed in the matter.
(i) Whether the plaintiffs have sold the suit property to Anil Kumar Goel, as alleged by virtue of sale deed dated 16.05.1997 and 20.06.1997?
OPD.
(ii) Whether the defendant is the owner of suit property by way of adverse possession? OPD.
(iii) Whether the suit is barred by limitation? OPD.
(iv) Whether the suit is bad for nonjoinder of necessary party? OPD.
(v) Whether the suit is properly valued for the purposes of court fees, as alleged? OPP.
(vi) Whether the plaintiff is entitled for a decree of possession of the suit property? OPP.
(vii) Whether the plaintiff is entitled for a decree of damages, use and occupation, if so, at what rate and what amount? OPD.
(viii) What is the effect of two rectification deeds dated 28.02.2005, executed between plaintiffs and Anil Kumar Goel with regard to suit property? OPD.
(ix) Whether the plaintiff has no cause of action to file the present suit in his favour? OPD.
(x) Relief.
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6. In order to discharge the onus of proving issues, Shri Narinder Kumar, son of deceased plaintiff examined himself as PW1 and proved the following documents:
(i) Site plan as Ex.PW1/A;
(ii) Mutation Order dated 23.03.1990, passed by Ld.SDM, Delhi as
Ex.PW1/B (also Ex.PW4/2);
(iii) True Copy of Jama Bandi as Ex.PW1/B1;
(iv) Certified copy of Jama Bandi record showing the mutation in the
name of plaintiffs in r/o suit property as Ex.PW1/C;
(v) True copies of payment receipts of housetax as Ex.PW1/D1 to Ex.PW1/D5;
(vi) True copies of mutation letters, issued by MCD as Ex.PW1/E1 to Ex.PW1/E5;
(vii) Certified copy of order dated 23.01.1985, passed by Shri R.K Yadav, the then Ld.SubJudge, Delhi as Ex.PW1/F1;
(viii) Certified copy of judgment dated 24.11.1987, passed by Ld.ADJ, Delhi as Ex.PW1/F2;
(ix) Certified copy of judgment dated 05.07.1990, passed by the Hon'ble High Court in RSA No.129/89 as Ex.PW1/F3;
(x) Copy of police report (DD No.7A, dated 10.12.1989) as Ex.PW1/F4;
(xi) Legal notice dated 28.12.1989, issued by plaintiff as Ex.PW1/F5;
(xii) Reply of the aforesaid legal notice as Ex.PW1/F7;
(xiii) Copy of judgment passed by Ms.Ina Malhotra, the then Ld.ADJ, Delhi in other suit between the parties as Ex.PW1/G;
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(xiv) Copies of Rectification Deeds dated 28.02.2005 as Ex.PW1/H and Ex.PW1/H1;
(xv) Affidavit of Shri Anil Kumar Goel as Ex.PW1/I and; (xvi) Copy of statement of Shri Anil Kumar Goel, dated 30.05.2001 as Ex.PW1/J.
7. PW2, Shri S.L Satija, Head Clerk from MCD HouseTax Department proved on record the housetax receipts as Ex.PW1/D1 to Ex.PW1/D5 and in addition the mutation orders in respect of ER15 to ER20, being Ex.PW1/E1 to Ex.PW1/E5 were also proved. This witness further stated that the defendant had applied for transfer of housetax in her name in respect of ER19 on 03.07.1998 on the basis of order dated 29.11.1997, passed by the Ld.Trial Court, but the mutation was not carried out in her name.
8. PW3, Shri Bijender Singh, Patwari from SDM Office, Delhi Cantt proved the Jama Bandi record in respect of the estate and the mutation of the estate in the name of plaintiff. This witness also brought the Intkaal Register in respect of mutation of the name of plaintiff in place of earlier Bhoomidar made on 31.05.1990, pursuant to order dated 23.03.1990, passed by the Ld.SDM in the matter. The witness further proved the subsequent mutation after the demise of plaintiff in respect of the estate as well.
9. PW4, Shri Chatter Pal Singh, Kanoongo from Record Room, Tehsil Hauz Khas, Mehrauli proved the mutation of estate in the name of plaintiff, cancellation of mutation, then remutation of the estate in the name of plaintiff. RCA U/o 41 CPC: "RCA Dismissed" Page 7 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014
10. Whereas, the attorney of defendant namely Shri K.L Yadav examined himself as DW1 and produced on record the following documents:
(i) Original Power of Attorney as Ex.DW1/1;
(ii) Copy of amended Written Statement as Ex.DW1/2;
(iii) Copy of sale deed dated 16.05.1997 as Ex.DW1/3;
(iv) Copy of sale deed dated 20.06.1997 as Ex.DW1/4;
(v) Copy of sale deed dated 07.05.1997 (ER20), executed by plaintiff in
favour of Shri Satya Narayan Gupta as Ex.DW1/5;
(vi) Copy of sale deed dated 09.05.1997 (ER20), executed by plaintiff in
favour of Shri Satya Narayan Gupta as Ex.DW1/6;
(vii) Copy of sale deed dated 21.09.1993 (ER16), executed by plaintiff in
favour of Shri Inderjeet Verma as Ex.DW1/7;
(viii) Copy of suit No.122/1991, titled as, "Shri Bidhi Singh V/s Smt.Kamla Yadav" as Ex.DW1/8;
(ix) Copy of order dated 29.11.1997, passed by Shri R.S Arya, the then Ld.ADJ as Ex.DW1/9;
(x) Copy of judgment dated 08.05.2008, passed by the Division Bench of Hon'ble High Court in RFA No.68/1998 as Ex.DW1/10;
(xi) Report of the Local Commissioner as Ex.DW1/11;
(xii) Copy of order dated 26.04.2007, passed by the Hon'ble High Court in RFA No.68/1998 as Ex.DW1/13;
(xiii) Copy of suit in CS No.632/1989, orders passed therein and statements (decided on 06.03.1990) as Ex.DW1/17 to Ex.DW1/19;
(xiv) Original passbook of defendant bearing A/c No.6944 (old) and New No.10211349174 as Ex.DW1/20;
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(xv) Original passbook of DW1 bearing A/c No.5834 (old) and new No. 10211346355 as Ex.DW1/21;
(xvi) Copy of Ration Card of DW1 as Ex.DW1/22 and;
(xvii) Copy of police complaint made by DW1 as Ex.DW1/23;
11. DW2, Shri Devender Kumar, Assistant from SBI, Inderpuri Branch has proved passbook in the name of attorney of defendant as well as defendant as Ex.DW2/1 and Ex.DW2/2, showing that both the persons had their bank accounts w.e.f the year 1980 in their names with their addresses being shown of that of suit property.
12. The Ld.Trial Court after considering the entire material on record passed the impugned judgment on the ground that the plaintiff had proved his ownership qua the suit property through cogent evidence, whereas the defendant had miserably failed in proving her ground of adverse possession.
13. The impugned judgment has been challenged before this court on a number of grounds, but on the basis of lengthy arguments advanced at bar by the learned counsel for the defendant, broadly following points emerge:
(a) That the Ld.Trial Court did not appreciate that the plaintiff had not been able to prove the identity and ownership of the suit property;
(b) That the Ld.Trial Court heavily relied upon Rectification Deeds Ex.PW1/H and Ex.PW1/H1, whereas, the said Rectification Deeds should not have been considered because of their execution during the pendency of litigation and without the permission of the court; RCA U/o 41 CPC: "RCA Dismissed" Page 9 of 23
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(c) That Shri Anil Kumar Goel did not appear as witness on behalf of plaintiff and as such, the plaintiff did not prove his locusstandi to maintain the suit;
(d) That the Ld.Trial Court wrongly rejected the document Ex.DW1/23 for application of Section 90 of Indian Evidence Act and;
(e) That the mutation orders dated 23.03.1990 (Ex.PW1/B as also Ex.PW4/2) and order dated 26.02.1990 (Mark A) were forged and fictitious documents and on the basis thereof, the mutation of estate in the name of plaintiff was "void abinitio";
14. I have heard arguments advanced at bar by Shri K.S Sharma, advocate, learned counsel for the defendant and Shri Amarjeet Singh, advocate, learned counsel for the plaintiff and perused the entire voluminous trial court record.
15. Identity & Ownership of the suit property:
In the suit in question, the issue of ownership of plaintiff qua the suit property was not framed, however, almost the entire thrust of arguments of the learned counsel for the defendant before this court has been on ownership. The learned counsel has very emphatically emphasized that the plaintiff cannot be treated as the owner of suit property merely on the basis of his name having been entered in the revenue record. Several decisions from various Hon'ble High Courts as well as of Hon'ble Supreme Court were cited on this proposition. Ex.PW4/5 is the copy of register Intkaal which has come on record and a perusal thereof suggests RCA U/o 41 CPC: "RCA Dismissed" Page 10 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 that prior to 31.05.1990 one firm by the name of M/s Engineering Industrial Corporation Limited was the recorded owner, but pursuant to the mutation having been sanctioned in the name of plaintiff, the name of plaintiff was recorded as the owner. There is one more document which is very vital in this case and the said document has been placed on record by defendant herself, which is Khasra Girdawari Ex.PW3/D2, which shows the defendant to be in possession of a substantial portion of ER18 and a smaller portion in ER19. In a separate litigation in respect of the estate, the plaintiff was held to be owner thereof. The defendant was not a party in that litigation, but the issue of ownership was duly framed in that case and the plaintiff had established his ownership qua the estate, a part whereof is the suit property. The judgment passed by the Ld.Civil Judge in that case was upheld upto the stage of second appeal before the Hon'ble High Court of Delhi. The copies of the said judgments are there on record as Ex.PW1/F1 to Ex.PW1/F3. Thereafter, the ownership of plaintiff was further confirmed in separate judicial proceedings between the parties, which had gone upto the Hon'ble Supreme Court. The said proceedings emanated from civil suit in respect of property Mark X, shown in blue colour in site plan Ex.PW1/A, which was admeasuring 220 sq.yards in respect of which suit for possession and damages was filed by the plaintiff against the defendant. Initially, the suit was dismissed by the Ld.Civil Judge vide order dated 30.03.2007, however, appeal against that order to the Ld.ADJ was allowed on 30.09.2008 (Ex.PW1/G). The second appeal against the order of Ld.ADJ was dismissed by the Hon'ble High Court on 21.02.2011. The SLP against the order of Hon'ble High Court was dismissed on 08.11.2012. Thereafter, the execution was filed by the plaintiff against the defendant and the possession of the said property was obtained. While in the other litigation, the defendant had not raised any RCA U/o 41 CPC: "RCA Dismissed" Page 11 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 question mark on the ownership of plaintiff, as is apparent from the close scrutiny of the judgments of all the courts.
Here, I would like to quote paras No.7, 10 and 13 of the judgment dated 21.02.2011 of Hon'ble High Court of Delhi rendered in RSA No.241/2008, titled as, "Smt.Kamla Yadav & Anr. V/s Shri Sunil Kumar & Anr." same are re produced as under.
xxxxx
7. Ex.PW1/1 is the site plan. There is no dispute to the fact that the plaintiff is the owner of the 2400 sq. yards of suit land bearing No. E15 to E20, in Khasra No.1647 and 1649 Revenue Estate of Naraina, Inderpuri, New Delhi. It is also not in dispute that out of 2400 sq. yards 790 sq. yards had been sold to a mandir. Another 400 sq. yards had been sold Inderjit Verma. The property which is the subject matter of the present suit has been depicted in the green portion in Ex.PW1/1 is measures 220 sq. yards. The suit property which was the subject matter of the earlier suit i.e. suit No.122/1991 is depicted in red colour in the site plan, it measures 180 sq. yards. Below this portion is the property which has been sold to Anil Kumar Goel and Satyanarain vide two separate sale deeds i.e. 400 sq. yards and 360 sq. yards.
xxxxx xxxxx
10. While remanding the matter to the trial court the Court had noted the arguments of the appellant that the suit proceedings has become infructuous in view of the fact that this suit land had been sold to Anil Kumar Garg. The Court was of the view that this should have been incorporated by the defendant by way of amendment in his written statement and the matter was remanded back in order that the parties will lead evidence on this score. This was the only dispute before the Court at the time of the remand of the RFA. There RCA U/o 41 CPC: "RCA Dismissed" Page 12 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 was no dispute raised about the identity of the suit property as is now sought to be urged before this Court. The subject matter of the suit property in that case i.e. in suit No.122/1991 was 180 sq. yards as depicted in red colour in Ex.PW1/1. The present suit land is 220 sq. yards as depicted in green colour in Ex.PW1/1. There is no confusion in the identity of the two properties. This confusion on the identity of the suit land which has been urged before this Court was never a part of the written statement. In the written statement defendant had set up a plea of res judicata. Main defence of the defendant was that the earlier suit i.e. suit No.122/1991 was based on the same cause of action and the said suit having been dismissed it will operate as resjudicata to the present proceedings. The other contention was that the number of the suit property had not been properly given.
xxxxx
13. The arguments urged now have been taken care of in the impugned judgment. The relevant extract reads as follows:
"The defendants/respondents have submitted that the suit property was owned by Anil Goel and as such the appellants had no locus to file the suit. In fact Anil Goel appeared in court as the plaintiff‟s witnesses PW1, and has categorically deposed that the suit property belonged to the appellants and not to him. As far as the boundaries are concerned, ld. counsel has taken me through the evidence on record whereby the entire plot has been identified in evidence in accordance with the site plan annexed. The boundaries of the plot occupied by the respondent are defined as the plot boundaries by the plot of Inderjeet Verma one side and the plot of Anil Kumar Goel on the other side. The other two sides are also not disputed as a road in front and a part on the back side. The portion in use and occupancy of the respondent has been marked A1, A1, A3 & A4. This rectangular piece of plot has been reflected in two portions marked in red and green in the site plan, Ex.PW1/1. While RCA U/o 41 CPC: "RCA Dismissed" Page 13 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 the appellants' earlier suit is pending adjudication in respect of the portion measuring 180 sq. yds shown in red, the present suit giving rise to the impugned order is shown in green and measures about 220 sq. yds. As per the averments made in the plaint it was sometime in the year 199293 that the respondents are alleged to have broken down the fence between the two portions and had unauthorisedly extended their encroachment over the portion shown in green measuring 220 sq. yards i.e. the suit property in the present case. Through the testimony of the respondent himself, the neighbouring boundaries have been identified.
7. I do not think that the suit should fail on this count too. Be that as it may, while the plaintiffs have able to show the title of Shri Bidhi Singh in respect of the entire property and vide order of the SDM EX.PW2/17 and consequent mutation Ex.PW2/1115, the defendants have not been able to substantiate on what basis they are in possession of the same. It is merely averred through oral testimony that they are in possession of the suit premises for the last 40 years. This is belied by the fact that in September, 1992, DDA had ordered eviction of one Sh. Om Prakash and Sh.Phool Singh from the suit property. In fact Om Prakash had filed a suit against the appellant herein, being Suit No.207/92, praying for declaration and permanent injunction. At the time of adjudicating the interim relief, the Ld. Court opined that Om Prakash did not have any document to substantiate his title and no plausible ownership could be inferred. Phool chand also filed a suit for declaration & injunction against Bidhi Singh. In fact the Jhuggis of Om Prakash and Phool Chand were removed by the DDA from the suit premises and the possession was handed over to Angoori Devi, deceased mother of the appellants. There is no evidence that the respondents have been in the suit premises for the last 40 years or more. There is nothing to infer that they have been in adverse possession, or if at all, any hostile title had been set up for them to plead limitation.
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8. The over all identity of the suit premises is clear in so far as the boundaries are defined. Whether the plot fell in ER 18 or 19 is immaterial as these numbers cannot be properly defined even by the municipal authorities Bidhi Singh, father of the appellants was the owner of ER1520 in Khasra No. 1647/1649 bearing a continuous plot of 2400 sq. yds. The Ld. Trial court has opined that there was discrepancy in the testimony of the Appellants with respect to the measurement of the plot under the defendants use and occupation as well as in the ER nos. Given the literacy level of the appellants‟ I do not think that the suit should fail merely if the witness has given slightly inaccurate measurement. There is admittedly no dispute to the overall size, dimersion and location of the entire holding of Bidhi Singh in respect of his plot spread over ER15 to E20. Piecemeal sales of different portions is also not a contentious issue. Only the intervening plot between the plots of Inderjeet Verma & Anil Goel is stated to be with the respondents for which two separate suits were filed. The portion which is the subject matter of the impugned decree was uncer occupation of Om parkash & Phool Singh. This suit property was also a subject matter of litigation initiated by Om Prakash & Phool Singh. This suit property was also a subject matter of litigation initiated by Om Prakash & Phool Singh and the site plan was duly annexed in those cases and is identical to the portion of the suit property reflected in the site plan Ex.PW1/1. One of the respondents was also a defendant in one those suits. Jhuggis of Om Prakash and Phool singh were demolished from the suit property of and they were forcibly evicted by the DDA. This clearly reflects that the respondents have encroached upon this area subsequently. Needless to state that the defendants have not been able to establish their right or title in the suit property.
9. On appraisal of the evidence and facts of the case I do not find any dispute with respect to the identity of the suit property or the locus of the appellants in filing the suit. With RCA U/o 41 CPC: "RCA Dismissed" Page 15 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 respect to the valuation of the suit property the Ld. trial court ought to have come a define conclusion about its valuation and directed the plaintiffs to take appropriate steps. I therefore set aside the impugned order and judgment. The appellants are entitled to a decree of possession of the suit premises, more specifically shown in green in the site plan annexed as Ex.PW1/1. The plaintiff has also claimed arrears, damages/mesne profits @ Rs.1000/ per month. Keeping in view that the respondents were in unauthorized use and occupation of about 220 sq. yds, I do not find this amount excessive. The appellants are entitled to these damages as claimed in the suit till recovery of possession of the suit property.
9. The appeal is allowed. A decree of possession in respect of the suit property measuring about 200 sq. yads situated within plot Nos. ER15 to ER20, in Khasra No.1647 and 1649 in the Revenue State of Naraina, Inderpuri, New Delhi more specifically shown in green in the site plan annexed as Ex.PW1/1 and for arrears of damages/mesne profits @ Rs. 1000/ per month for three years prior to the filing of the suit till the recovery of possession in favour of the appellant/plaintiff, is passed together with costs and future interest @ 8% per annum."
xxxxx (underlining which is mine emphasized)
16. In addition, the plaintiff and his successors have sold the land to other persons. None of them have ever questioned the ownership of plaintiff. The plaintiff has placed on record host of documents to show exercise of his rights as owner over the estate.
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17. The defendant has created a confusion by claiming herself to be in possession of ER19 exclusively, whereas there is ample material on record that she is in possession of substantial portion of ER18 and a small part of ER19 is in her possession. The final position which emerges from the perusal of various sale documents is as under. An area of 740 sq. yards, out of the estate towards eastern most part is in possession of Mandir, which is in ER15 and ER16; thereafter, on the western side of it 400 sq. yards is in possession of Shri Inderjeet Verma (ER17); whereas, towards extreme western side 400 sq. yards (ER20) is in possession of Shri Satya Narayan Gupta; whereas, towards eastern side Shri Anil Kumar Goel is in possession of 360 sq. yards (ER19); whereas, remaining almost 400 sq. yards falling in ER18 and ER19 is in possession of defendant, out of which possession of 220 sq. yards has already been taken by the plaintiff. Therefore, the suit property admeasuring almost 180 sq. yards falling in ER18 & ER19 is in possession of defendant, which is the suit property. It is admitted position on record that all the purchasers from plaintiff have already got their names mutated in the revenue record on the basis of documents of title executed in their favour by the plaintiff. There is one more document on record which clinches the issue; the same is report of Ld.Local Commissioner Ex.PW3/5, which shows the possession of defendant to be in a part of ER19 only. The confusion was sought to be created in the matter by the defendant by showing discrepancy in the boundaries shown in the sale deeds of other persons as well as recitification deeds. According to me, the defendant has no right, title or interest to question the said sale deeds. The stand of plaintiff throughout in the litigation right from the year 1976 has been that he is the owner of ER15 to ER20 and we have clear position of areas of the vendees of plaintiff. Further, the defendant cannot be permitted to question site plan Ex.PW1/A filed by RCA U/o 41 CPC: "RCA Dismissed" Page 17 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 the plaintiff, showing the entire estate, for want of filing of site plan of her own. Almost entire thrust of the defendant in this litigation throughout has been that the suit property had been sold by the plaintiff to Shri Anil Kumar Goel, whereas, the stand of Shri Anil Kumar Goel clearly apparent from the other suit which is being disposed off separately today itself is that he has been in possession of his 360 sq. yards of land in ER19. Therefore, the issues No.(i) and (viii) were rightly decided by the Ld.Trial Court in favour of plaintiff. The law laid down in case reported as, "AIR 2007 Orissa 15", titled as, "Jaidev Sawan V/s Santha Behra B" is, therefore, of no help to the defendant.
18. As far as ground (b) is concerned, the same is misconceived for the simple reason that the Ld.Trial Court has not placed reliance upon the rectification deeds. I even do not appreciate the argument of learned counsel for the defendant on the basis of judgment, reported as, "AIR 2006 Orissa Page 131", titled as, "Khalil Nahak V/s Hadu Nahak & Ors." that the plaintiff should not have executed recitification deeds Ex.PW1/H and Ex.PW1/H1 during the pendency of litigation without obtaining the permission from the court. The simple answer thereto is that neither the sale deeds of Shri Anil Kumar Goel are relevant to the controversy in hand nor the rectification deeds are relevant because the plaintiff has not claimed his ownership qua the suit property on the basis of said documents. I further do not find any substance in the argument of learned counsel for the defendant that Shri Anil Kumar Goel should have appeared as a witness in the matter to prove his sale documents. In the separately decided appeal in another matter, it has been held that the possession of land of Shri Anil Kumar Goel is separate and distinct from the suit property and has nothing to do with the land in possession of defendant.
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19. Adverse Possession:
Now, comes the issue of adverse possession and limitation, i.e issues No.(ii) and (iii). The defendant had claimed herself to be in possession of suit property since the year 1962. She further claimed to have been paying property tax to MCD and has further claimed having obtained sewer connection, water connecting and electricity connection from the concerned departments. No document of possession worth the name has been placed on record by the defendant. Documents Ex.DW1/20 to Ex.DW1/22 at the most show the possession of defendant from the year 1980. The copies of documents of various litigations between the parties reveal that the defendant herself had filed a suit for permanent injunction against the plaintiff on 19.06.1989. Had the defendant been in possession in the suit property prior to the year 1980, then she would have definitely come to know of the litigation in respect of the estate between plaintiff and DDA & MCD. We have one more document on record which pertains to the year 1972, i.e the survey report of MCD Ex.PW2/D1, which shows the possession of one Shri Hardwari Lal, S/o Shri Nanak Chand in ER19. As far as document Ex.DW1/23 is concerned, the said document for the first time came on record in the year 2009 and it was never referred to by the defendant in other litigation which went upto the Hon'ble Supreme Court. Even otherwise, the said document appears to be a self serving document. In support of document Ex.DW1/23, the learned counsel for the defendant has relied upon case reported as, "AIR 2008 SC Page 632", titled as, "Dev Raj V/s Budh Raj". I have gone through the said judgment. The document sought to be proved U/s 90 of the Evidence Act in that case was produced from proper custody, i.e Principal of the school, whereas in this case, this is a document RCA U/o 41 CPC: "RCA Dismissed" Page 19 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 purportedly written by husband of defendant and as such, I do not deem it to be a document coming from proper custody. There is no application of the law laid down in case reported as, "AIR 2007 (NOC) 323 (Raj.)", titled as, "Hazari Lal & Anr. V/s Shri Shyam Lal & Ors." in the facts and circumstances of the present case, as Ex.DW1/23 had been duly considered by the Ld.Trial Court. In order to prove this document, the defendant was required to summon the original report from the police record or atleast Shri R.D Gupta against whom grievance has been shown in this document. Therefore, this document is of no help to the defendant and all the other documents referred to in the evidence of DW1 do not show the possession of defendant prior to the period 1980. The law with regard to adverse possession is fairly settled now that the long possession of property is not necessarily adverse possession. A person who claims title to a property by adverse possession must definitely allege and prove as to how and when adverse possession commenced and what was the nature of his possession and whether the factum of his adverse possession was known to the real owner. The mere fact that he was in uninterrupted possession for several years and in that way he acquired absolute right and title is not enough to raise such a plea. The Ld.Trial Court has also relied upon law laid down in case reported as, "AIR 1993 Delhi Page 19", titled as, "Wg.Cdr.(Retired) R.N Dawar V/s Ganga Saran Dhama". Further, in case reported as, "AIR 1995 SC 895", titled as, "Annasaheb Bapusaheb Patil V/s Balwant Babusaheb Patil", the Hon'ble Supreme Court has been pleased to hold as under:
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12. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of RCA U/o 41 CPC: "RCA Dismissed" Page 20 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to 381 prove affirmatively.
A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e 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, constitute 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 each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
13. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.
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20. Further, in case reported as, "(2003) 7 SCC 481", titled as, "Deva (Dead) Through L.Rs V/s Sajjan Kumar (Dead) By L.Rs", the Hon'ble Supreme Court expounded the law further to the extent that mere long possession of RCA U/o 41 CPC: "RCA Dismissed" Page 21 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 defendant for a period more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land.
Therefore, issues No.(ii) and (iii) were rightly decided by the Ld.Trial Court against the defendant.
21. A lot of hue and cry was raised in court by the learned counsel for the defendant in respect of mutation orders dated 23.03.1996 (Ex.PW1/B as also Ex.PW4/2) and order dated 26.02.1990 (Mark A) by contending that these are forged and fabricated documents. There is nothing on record as to when the plaintiff had applied for mutation of estate in his name, but it is apparent that he had applied for the same on the basis of judicial pronouncement in Ex.PW1/F1 and the Ld.SDM in both the orders had made clear reference of the land of estate and had given specific directions to the subordinate staff to effect the mutation in the name of plaintiff. It is common knowledge that after the SDM passes an order for mutation, the entries have to be made in various registers and finally it has to be effected through the Patwari concerned and record thereof is maintained. The proper orders (Intkaal) and recording has been proved on record through ample documents. A lot of issue was joined by the learned counsel for the defendant about PW1 having denied Mark A and having relied upon Ex.PW1/B, whereas copies of both the orders were there on record. Had the defendant any grievance about the said orders, then he should have challenged the same before the higher revenue authorities empowered to set aside the said orders, but there is no evidence on record that any such step was taken by the defendant in this regard. There is further not even a whisper in the examinationinchief of DW1 disputing the RCA U/o 41 CPC: "RCA Dismissed" Page 22 of 23 RCA No.22/2012: "Smt.Kamla Yadav V/s Bidhi Singh (Deceased) Thru L.Rs" DOD: 14.08.2014 mutation orders or branding them to be forged and fictitious documents. The defendant even did not specifically plead the factum of fraud in the written statement. Order 6 Rule 4 & 10 CPC mandates that in case a party alleges misrepresentation, fraud, undue influence, malice, fraudulent intention etc., then that has to be specifically pleaded in the pleadings. In case reported as, "AIR 2006 AP Page 8", it was held that for want of necessary pleadings of fraud, as contemplated U/o 6 Rule 4 CPC, the court should not permit the party to lead oral evidence thereupon. Therefore, the judgments relating to fraud relied upon by the defendant are inconsequential.
22. No other point was raised before this court.
23. Therefore, I do not find any merit in the appeal, same stands dismissed, leaving the parties to bear their own costs.
24. The trial court record be sent back forthwith to the Ld.Trial Court along with copy of this judgment.
25. Appeal file be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 14.08.2014 Addl. District JudgeI/SouthWest
Dwarka District Courts: New Delhi
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