Delhi District Court
Sant Singh vs Jagjit Singh And Others on 28 October, 2024
IN THE COURT OF DISTRICT JUDGE-01
(CENTRAL), THC, DELHI.
RCA No. 68/18
CNR No: DLCT 01-004468-2018.
Shri Sant Singh
S/o Shri Krishan Singh
R/o: House No. 2450
Basti Punjabian
Old Subzi Mandi
Delhi-110007. .......APPELLANT
VERSUS
1. Jagjit Singh Sawhney (Since deceased)
S/o Late Ram Singh Sawhney
C/o Guru Finance Co. Plaza Cinema
New Delhi.
Through L.R's
a. Kamal Jeet Singh Sawhney (Since deceased)
Through Lr's
i. Mrs. Brijmohan Kaur Sawhney
W/o Late Kamal Jeet Singh Sawhney
ii. Sh. Harsimar Singh Sawhney
S/o Late Kamal Jeet Singh Sawhney
iii. Harkunwar Singh Sawhney
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 1/30
S/o Late Kamal Jeet Singh Sawhney
All R/o: 873-B, Block-A, Sushant Lok-1,
Gurgaon, Haryana.
b. Ms. Chiranjeev Sawhney
W/o Shri Inderpal Singh
R/o: C-13, Sector-26
Noida: 201301
c. Ms. Gunjeev Kalra
W/o Sh. Jitender Kalra
R/o: C-Block, 173, Gaur City
Avenue-1, Sector-4
Greater Noida, West: 201 308
2. Smt. Neeta Sawhney
W/o Late Shri Gurcharan Singh Sawhney
3. Shri Varinder Singh Sawhney
S/o Late Shri Gurcharan Singh Sawhney
4. Ms. Jasleen
G/o: Late Shri Gurcharan Singh Sawhney
All 2 to 4 R/o: M-120,
Greater Kailash, Part-II
New Delhi: 110049 ........RESPONDENTS
Date of Institution: 28.03.2018
Date of Reserving Judgment: 21.09.2024
Date of Judgment: 28.10.2024
1. The present appeal was filed by the appellant challenging the order dated 17.03.2018 in CS No 6832/2016 vide which the Ld. Trial Court had decreed the suit.
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 2/30
2. For the sake of convenience, the parties hereinafter shall be referred to in accordance with their rank/status before the Ld. Trial Court i.e. the appellant shall be referred to as the defendant and the respondents shall be referred to as the plaintiffs.
3. The plaintiff had filed the suit being CS No. 6832/2016 for recovery of possession, mesne profits/ damages for use and occupation against the defendants pleading inter-alia as follows:
i. That the property bearing no. XII/2452-56, 2472-76 and 2482, Basti Punjabian, Roshnara Road, Subzi Mandi, Delhi-07 and was sold in public auction by way of two registered sale deeds dated 18.11.1972 and 16.11.1972 in favour of Jagdish Rai and Parvesh, Sons of Shri Mulkh Raj, M/s Dharam Singh through their LRs namely Basant Kaur, Jagjit Singh Sawhney and Gurcharan Singh Sawhney, sons of Late Shri Ram Singh Sawhney in equal shares.
ii. That later on the property was partitioned by way of registered partition deed executed between the parties whereby the property no. 2452-56 came to the share of the plaintiffs.
iii. That the name of the plaintiffs have been duly mutated in the record of Municipal Corporation of Delhi in respect of the property bearing no. 2452-56, Basti Punjabian, Roshanara Road, Subzi Mandi, Delhi-110007.\ iv. That in the original survey conducted by the MCD, the name of the defendant has not been shown as one of the tenants and that the defendant unauthorizedly occupied on the basis of the execution of two GPAs, one executed by Amarjit Kaur (daughter of Sh. Boor Singh, W/o Ranjit Singh, R/o WZ-22, Plot no. 85, Shyam Nagar ext. Vishnu Garden, New Delhi RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 3/30 appointing the defendant's GPA in respect of one room measuring 10X10 ft. fitted with electricity and water connection of property no. 2455, Basti Punjabian, Roshnara Road, Delhi-110007.
iv. That by virtue of another GPA, Surinder Singh, son of Manmohan Singh, resident of 2454, Basti Punjabian, Roshnara Road, Delhi-110007 appointed the defendant as his GPA as resident of 73, Double Storey, Seelampur, Delhi in respect of the portion under his occupation.\ v. That the defendants have unauthorizedly occupied a portion at the first floor of the property no. 2452, Basti Punjabian, Roshnara Road, Subzi Mandi, Delhi in order to legitimize unauthorized occupation of the portion of the defendant filed a suit bearing CS no. 164/2000.
vi. That the plaintiffs submitted that they verified that in the suit for injunction filed by the defendant pending in the court of Sh. Sanjeev Jain, CJ, Delhi, the site plan filed by the defendant shows that he is in occupation of only two rooms in "L" shape and that the factual position as per the survey conducted by the MCD in 1999, the defendant in addition to the "L" shape portion under his occupation had built three rooms set with a kitchen on the first floor of the same property unauthorizedly without taking any permission either from the MCD or from the actual owners i.e. the plaintiffs.
vii. That as per the plaintiffs, the portion which was in occupation of the defendant as plaintiff in the said suit no. 164/2000 is less than the portion which is under his unauthorized occupation and also that the plaintiffs averred that same was done malafidely and intentionally in order to usurp RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 4/30 the added unauthorized construction in respect of property bearing no. 2452-56, Basti Punjabian, Roshnara Road, Subzi Mandi, Delhi. viii. That the plaintiffs challenged the right of the defendant seeking injunction on the right of adverse possession and that the plaintiffs submitted that on 25.04.2001, they made a statement that the defendant shall not be dispossessed without due process of law and thereafter the suit of the defendant (plaintiff in the said suit) was dismissed as withdrawn. ix. That the plaintiffs claimed that the defendant cannot allege and claim adverse possession of the premises on the basis of the long possession over 30 years as it is disputed because since inception, the possession of the defendant was unauthorized but it was not adverse to the true owner of the property.
x. That the plaintiffs came to know in the month of May-2000 about the illegal and unauthorized possession of the defendant when summons in the suit no. 164/2000 were served from the court of Sh. Sanjeev Sanwan and they filed their detailed written statement and also that the plaintiffs claimed that the unauthorized portion constructed by the defendant was not in accordance with the permission sought by the defendant either from the MCD or the Principal Owners i.e. the plaintiffs.
xi. That the plaintiffs claimed that the defendant has not been able to place any documentary evidence in the Court of Sh. Sanjeev Sangwan, CJ, Delhi in suit no. 164/2000 regarding the illegal occupation of the portion under his occupation and also that the plaintiffs claimed that the defendant has nowhere given the details as to from where he purchased this property and whether any sale deed, GPA or any other documents pertaining to the RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 5/30 portion under his occupation is available with him and therefore he is a trespasser and unauthorized occupant. Thus consequently, he cannot legitimize his right on the basis of the long use of the premises. xii. That the plaintiffs sent a legal notice dated 02.01.2000 to the defendant thereby calling upon the defendant to restore the possession in regard to the site plan which shows two rooms in "L" shape and three rooms with kitchen on the first floor and other unauthorized construction and to remove the unauthorized portion.
WRITTEN STATEMENT
4. In the written statement, the defendant has submitted that the suit of the plaintiffs being time barred is not maintainable and is liable to be dismissed under Order 7 Rule 11 CPC as the period of limitation for filing the suit for possession of immovable property is 12 years whereas the plaintiffs has filed the present suit after 28 years as they disclosed that they purchased the suit property by way of two registered sale deeds i.e. 18.11.1972 and 16.11.1972 and the suit property came into the share of the plaintiffs after the partition and also as per the defendant, the plaintiffs have not come before the court with clean hands and have also suppressed the material facts and that the suit property has not been correctly valued and therefore the suit is liable to be dismissed.
5. As per the defendant, the plaintiffs have no right to challenge the ownership or his possession in the suit premises. As per the defendant, he is in possession of the suit premises for the last more than 30 years and by way of adverse possession, he became the owner of the suit property.
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 6/30 REPLICATION
6. In their replication, the plaintiffs reiterated the averments mentioned in the plaint and denied those of the written statement.
7. On the basis of the aforesaid pleadings, following issues were framed on 27.11.2003 :-
1. Whether the plaintiff is entitled for the decree of possession as claimed in the suit? OPP
2. To what amount of damages, if any, the plaintiff is entitled and if so at what rate and for what period? OPP
3. Whether the suit is barred by law of limitation? OPD
4. Whether the suit is under valued for the purpose of court fees and jurisdiction? OPD
5. Relief.
PLAINTIFF'S EVIDENCE
8. The plaintiffs examined one Mr. N.K Maurya, record keeper, House Tax department, Civil Lines Zone, MCD, Delhi as PW-1. He exhibited the certified copy of the survey report dated 17.10.1984 i.e. Ex. PW1/1 and the certified copy of mutation certificate issued to the plaintiff as Ex. PW1/2 and the photocopy of the same was marked as PX. The said witness also exhibited the true copy of the mutation letter dated 17.09.1993 as Ex. PW2/A.
9. The plaintiffs examined one Mr. Naresh Kumar, UDC from the office of Sub-Registrar I, Kashmere Gate, Delhi as PW-3 who brought the record of sale certificates of suit property. He exhibited the certified copies of the sale certificates as Ex. PW1/A and Ex. PW1/B having registration number 50 and 51 in Book No. 1, Volume no. 206, Page no. 132 and 133 dated 23.11.1972. He also exhibited the partition deed bearing registration no. 389 in Book No. 1, Volume no. 4073, page no. 6 to 9 dated 03.02.1982 of the property as Ex. PW1/C. RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 7/30 10 Plaintiff no. 2 i.e. Ms. Neeta Sawhney examined herself as PW-3 (wrongly numbered). She tendered her evidence by way of affidavit as Ex. PW3/A. She relied upon the following documents :-
S.No Exhibits Documents
1. PW3/1 Certified copy of survey report which is also
marked as Mark PX.
2. PW3/2 Certified copy of mutation certificate
Ex. PW3/3 to Ex. PW3/4 and Ex. PW3/6 to Ex. PW3/8 were mentioned by the witness however, the same are not available on record.
(Subsequently vide order dated 05.11.2011, this witness was directed to file fresh affidavit as PW-4)
11. Plaintiff no. 2 i.e. Ms. Neeta Sawhney again examined herself as PW-4. She tendered her evidence by way of affidavit Ex. PW4/A. She relied upon the following documents :-
S.No Exhibits Documents
1. PW1/A and Sale certificates
PW1/B
2. PW1/C Copy of partition deed
3. PW3/1 Survey report and is also mark PX
4. PW3/2 Certified copy of mutation certificate
5. PW4/1 Copy of site plan
6. PW4/2 Copy of the report showing unauthorized
occupation of the defendant
7. PW4/3 Notice dated 02.01.2001
8. PW4/4 Postal receipt
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 8/30
12. The plaintiff examined summoned witness namely Suresh Kumar Saini as PW-5. He deposed that site plan Ex. PW5/1 of the suit property no. 2452, Punjabian Basti, Subzi Mandi, Delhi had been prepared by him.
13. Plaintiff examined one more witness namely Anil Kumar, Record Keeper, House Tax Department, NDMC, Civil Lines Zone, Delhi as PW-6. He brought the originals of the summoned record i.e. Survey Report dated 24.11.1999 i.e. Ex. PW6/1 and mutation record dated 17.09.1993 i.e. Ex. PW6/2. Survey report dated 25.02.1969 is marked as PX.
DEFENDANT'S EVIDENCE
14. Defendant, in order to prove his case examined himself as DW-1. He tendered his evidence by way of affidavit Ex. DW1/A. He relied upon the following documents :-
S.No Exhibits Documents
1. DW1/1 Copy of passport bearing no. 1943521
2. Mark A Copy of demand notice dated 03.03.1982
3. Mark B Copy of the receipt dated 20.04.1982
4. Mark C Copy of the receipt dated 02.03.1982
5. Mark D Copy of letter dated 24.12.1981
6. Mark E Copy of notice dated 30.11.1999
7. Mark F Copy of reply dated 21.12.1999
8. Mark G Copy of demand notice u/S 124(5) of DMC Act
1957 dated 23.01.2002.
15. Defendant examined one Mr. Lalit Kumar as DW-2. He was a summoned witness who brought the summoned record pertaining to the property bearing no. 2452-56, Basti Punjabian, Subzi Mandi, Delhi. He compared the copy of the demand notice dated 04.03.1982 mark A available in the judicial file with the RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 9/30 record brought by him. He also compared the notice dated 30.11.1999 CL No. 61002 mark E with the record brought by him and exhibited it as Ex. DW2/1. He also compared the notice dated 11.03.2002 mark G with the record brought by him and exhibited it as Ex. DW2/2.
16. Defendant examined Giriraj Sharma as DW3 He was a summoned witness. He brought the record pertaining to the passport no. L-943521 issued to defendant Sant Singh s/o Sh. S. Kishan Singh on 30.09.1977 vide file no.11/34201/77 and the entry of issuance of the same is made in the passport entry register no. 304 page no.10 Srl. no. 2985. He also brought the duly attested photocopy of the record Ex.PW3/1 regarding issuance of the above passport.
17. Defendant examined Girdhari Lal as DW4. He was also a summoned witness who brought the summoned record regarding the passport no. L- 943521 issued to Sant Singh s/o Sh Kishan Singh on 30.09.1977 vide file no. 11/34201/77 dated 30.09.1977. He also brought the duly attested copy of the certificate dated 28.09.2016 signed by Assistant Passport Officer (Policy), Regional Passport Office, Delhi Ex.PW4/1. He also brought the copy of letter dated 23.01.2003 bearing file no. VIII/885/17/2000 duly attested by Sh. Surinder Kumar Awasthy, Assistant Passport Office, regional Passport Office, Delhi Ex.PW4/2. He also brought the duly attested copy of the passport register showing the entry of the passport of Sant Singh s/o Sh. Kishan Singh at serial no. 29859 Ex.DW4/3 duly signed by Sh. Surinder Kumar Awasthy.
18. Defendant examined Mahender Singh as DW5. He was also a summoned witness and he brought the educational record of Ms. Pinder Pal Kaur D/o S. Sant Singh who studied in Guru Nanak Girls Sr. Secondary School, Singh Sabha Road, Subzi Mandi, Delhi from the year 1981 to 1988. The certificate dated RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 10/30 17.02.2015 bearing Ref. No.GN/P-50/2015 had been duly signed by Smt. Jasbir Kaur, Principal, CNG Sr. Secondary School, Subzi Mandi, Delhi certifying that Ms. Pinder Pal Kaur D/o S. Sant Singh studied in the above said school from May, 1981 to March, 1987 (88) and the certificate is Ex.PW5/1. He brought the admission and withdrawal register wherein the date of admission of Ms. Pinder Pal D/o S. Sant Singh in the above mentioned school is entered at serial no.3067 dated 04.05.1981 and the duly attested copy of the same is Ex. DW5/2 duly signed by Ms. Abinash Kaur, Vice Principal of GNG Sr. Secondary School, Subzi Mandi, Delhi. He also brought the result register of the year 1988 wherein the name of Ms. Pinder Pal D/o S. Sant Singh is entered at serial no. 52, admission no. 5181891 and attested copy of the same is Ex.DW5/3 duly signed by Ms. Amrita Kaur, PGT English of GNG Sr. Secondary School, Subzi Mandi, Delhi.
19. Defendant examined Ms. Pinder Pal Kaur as DW6. She tendered her evidence by way of affidavit Ex.DW6/A. She relied upon the Ex.DW6/1 (already Ex.DW5/1) and following other documents:
(a) Ex.DW6/2 is a certificate issued by Guru Nanak Girls Senior Secondary School certifying that P. Pinder passed hindi as third language in class VIII in the year 1983-84.
(b) Ex.PW6/3 is the certificate of P. Pinder issued by All India Training expedition, Srinagar-Yusmarg, conducted by the National Cadet Corps
(c) Ex.PW6/4 is the certificate issued by the Director, National Cadet Corps regarding participation of P. Pinder Pal in Flag Hoisting Ceremony
(d) Ex.PW6/5 is the 10th class pass certificate of Pinder Pal issued by CBSE
(e) Ex.PW6/6 is the mark sheet of 10th class of Pinder Pal
(f) Ex.PW6/7 is the 12th class pass certificate of Pinder Pal issued by CBSE RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 11/30
(g) Ex. DW6/8 is the admission ticket of Pinder Pal Singh issued by University of Delhi for admission in B.A. Pass.
20. Defendant examined Giriraj Sharma, Senior Passport Assistant, Passport Office, Bikaji Gama Place, R. K. Puram, New Delhi as DW7. He had gone through the office record and stated that the record relating to the renewal of the passport no. L943521 dated 30.09.1977 issued in the name of Sh. Sant Singh, has been weeded out. He had seen the original passport no. L943521 and stated that the above said passport was issued to Sh. Sant Singh at the premises no. 4612, Arya Pura, Subzi Mandi, Delhi. He stated that the said passport was renewed on 07.10.1982 and the address of the passport holder was also changed to premises no. 2452, Basti Punjabian, Roshanara Road, Delhi by the endorsement dated 08.10.1982 under the signatures of Sh. K. S. Bharti, Assistant Passport Officer, Delhi.
21. The Ld Civil Judge vide judgment and decree dt 17.03.2018 decided all the issues in favour of the plaintiffs.
22. While returning finding on issue no 1 Ld Civil Judge has clearly held that the plaintiffs were able to prove the registered sale certificates (Ex PW 1/B) in their favour and also the partition deed Ex PW 1/ C thereby proving that the property bearing no XII/2452-56, Roshnara Road, Subzi Mandi, Delhi was purchased in equal shares by Sh Jagdish Rai and Sh Parvesh Kumar (half share) and M/s Dharam Singh Ram Singh (half share). The suit property in question i.e. 2452 was held to be falling in the share of Sh Gurcharan Singh and Sh Jagjit Singh consequent upon the partition deed Ex PW 1/C having been proved by the plaintiffs. Accordingly, the Ld Civil Judge held that the plaintiffs have been successful in proving their ownership over the suit property. It was further held RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 12/30 that the defendant who had claimed title over the suit property on the ground of his remaining in continuous possession of the suit property from the last 30 years could not prove the factum of having occupied the same by way of adverse possession to the knowledge of the plaintiffs.
23. On issue no 3 The Ld Civil Judge returned a finding that the suit was within the period of limitation and the period of limitation would start running from the date the possession of the defendant becomes adverse to the plaintiff and the defendant failed to prove the fact that the suit property was held by the defendant adverse to the plaintiffs for more than 12 years prior to the filing of the suit.
24. Being aggrieved by the judgment and decree dt 17.03.2018 as passed by the Ld Civil Judge, the present appeal has been preferred by the defendant/appellant primarily on the following grounds:
(a) That the defendant/appellant had become the owner of the suit property by way of adverse possession who has been in continuous possession as an exclusive owner thereof without any interference from any court.
(b) That the Ld Trial Court failed to appreciate the import of Section 27 of the Indian Limitation Act and also the fact that since the present suit has not been filed within the prescribed period of limitation hence on determination of the same, the plaintiff is left with no rights in the suit property and the same stands extinguished.
(c) That the Ld Trial Court has failed to consider that the suit as filed by the plaintiff was barred by Section 50 of the Delhi Rent Control Act.
Arguments on Behalf of the Appellant/ Defendant
25. Learned counsel for the Appellant has argued that the learned trial court failed to appreciate that the Appellant had become the owner of the suit property RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 13/30 by way of his remaining in possession for more than 12 years prior to the filing of the suit to the knowledge of the plaintiffs and also that the Respondent herein since was aware of the possession of the Appellants since more than 12 years had no remedy left against the Appellant by virtue of Section 27 of the Indian Limitation Act. It was further argued that the suit as filed by the Plaintiff was beyond the period of limitation hence by virtue of Section 27 of the Indian Limitation Act, the present suit is not maintainable and the respondent is left with no remedy against the appellant herein. It was further argued that the suit as filed by the Plaintiffs was not maintainable in view of section 50 of the Delhi Rent Control Act since admittedly a petition i.e. Ex PW 4/D1 was filed by the respondent against the Defendants/Appellant u/s 19 of Slum Area (Improvement and Clearance) Act wherein the appellant has been shown as an tenant in the suit property.
Arguments by the Respondent/ Plaintiff
26. Ld counsel for the respondent has supported the judgment as passed by the Ld Civil Judge who has submitted that mere long possession of the appellant would be insufficient to confer ownership upon the appellant by way of adverse possession. It is further submitted that in the present appeal mutually destructive pleas have been taken by the appellant who on one hand claims to have become the owner of the suit property by way of adverse possession who on the other hand is claiming protection u/s 50 of the Delhi Rent control Act as well as under
the provisions of u/s 19 of Slum Area (Improvement and Clearance) Act.
27. I have gone through the records of the case and have also considered the arguments advanced at bar. Before proceeding to appreciate the contention of the Ld counsel for the appellant that the defendant has become the owner of the suit RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 14/30 property by way of adverse possession or that consequent upon the expiry of the period of limitation by virtue of Section 27 of the Indian Limitation Act, the plaintiff has been left with no rights in the suit property, it is deemed appropriate to quote the relevant case law as follows:
28. In T Anjanappa Vs Somalingappa & Ors (2006) 7 SCC 570 the Hon'ble Supreme Court of India had set aside the finding of the Hon'ble High Court that the defendants claiming adverse possession do not have to prove who is the true owner. If the defendants are not sure who the true owner is, the question of them being in hostile possession as well as of denying the title of the true owner does not arise. The Court held as under:
"12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:
"24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co- owners." (See Vidya Devi v. Prem Prakash [(1995) 4 SCC 496] , SCC p. 504, para 24.) RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 15/30
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
"14. ... Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to 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. ...
15. Where possession can 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. (See Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543, p. 554 : AIR 1995 SC 895, p. 902] , SCC p. 554, paras 14 15.)"
29. In Brijesh Kumar & Anr. v. Shardabai (Dead) by Legal Representatives & Ors., (2019) 9 SCC 369 the Court held as under:
"13. Adverse possession is hostile possession by assertion of a hos- tile title in denial of the title of the true owner as held in M. Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] . The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 16/30 lay on the respondent to establish when and how he came into pos-
session, the nature of his possession, the factum of possession known and hostile to the other parties, continuous possession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the re- spondent to establish possession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The respondent plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao v. Palle Venkata Subba Rao [Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : (2012) 1 SCC (Civ) 452] , on adverse possession observing as follows:
(SCC p. 322, para 15) "15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse pos-
session is required to establish the date on which he came in posses- sion, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equi- ties in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts neces- sary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law."
30. In Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani Kamma; Civil Appeal No. 4788/2008, the payment of tax receipts and mere possession for some years was found insufficient to claim adverse possession. It was held that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient. The Court held as under:
"19. The defendant claimed that he had perfected his title by adverse pos- session by being in open, continuous and hostile possession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence, both the courts have entered a con-
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 17/30 current finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient to claim ad- verse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient and he had to show that his pos- session was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and the High Court also held that the appellant was only managing the proper- ties on behalf of the plaintiff and his occupation was not hostile posses- sion."
31. In a recent judgment by Hon'ble Supreme Court of India in M Rad- heshyamlan Babu Vs V. Sandhya & Ors (Civil Appeal No 4322-4324/2024), it has been held that in order to prove the plea of adverse possession (a) it must be pleaded and proved that the possession is being claimed adverse to the true owner, (b) it must be pleaded and proved that the long and continuous possession was known to the true owner, (c) it must also be pleaded when the person claim- ing adverse possession came into possession, and (d) it must be established that the possession was open and undistrubed and the wrongful continuous posses- sion was for a period for more than 12 years.
' 12 Therefore to prove the plea of adverse possession:
(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into possession; and
(d) The plaintiff must establish that his possession was open and undisturbed."
"It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff."
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 18/30
32. In Annasaheb Bapu Saheb Patil Vs Balwant AIR 1995 SC 895 held that Ar- ticle 65 of the Schedule to the Limitation Act 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 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 prove affirmatively. A person who bases his ti- tle on adverse possession must show by clear and unequivocal evidence i.e pos- session 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. 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.
33. In Saroop Singh Vs Banto 2005 (8) SCC 330 has been held that in terms of Article 65 the starting point of limitation does not commence from the date when RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 19/30 the right of ownership arises to the plaintiff but commences from the date defen- dants possession became adverse.
34. In Vasantiben Prahladji Nayak and Others and Others vs. Somnath Muljib- hai Nayak and Others (2004) 3 SCC 376] 'Animus possidendi' is one of the in- gredients of adverse possession. Unless the person possessing the land has a req- uisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [See Md. Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1 SCC 271, para 21].
35. Yet again in Karnataka Board of Wakf vs. Government of India and Others [(2004) 10 SCC 779], it was observed :
"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his ad- verse possession."
36. The Plaintiff maintained the suit for possession, damages and permanent injunction against the Defendant by pleading that the property bearing no. XII/2452-56, 2472-76 and 2482, Basti Punjabian, Roshnara Road, Subzi Mandi, Delhi-07 and was sold in public auction by way of two registered sale deeds dated 18.11.1972 and 16.11.1972 in favour of Jagdish Rai and Parvesh, Sons of RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 20/30 Shri Mulkh Raj, M/s Dharam Singh through their LRs namely Basant Kaur, Jagjit Singh Sawhney and Gurcharan Singh Sawhney, sons of Late Shri Ram Singh Sawhney in equal shares which was later partitioned whereby the property no. 2452-56 came to the share of the plaintiffs by virtue of partition deed.
iii. That the name of the plaintiffs have been duly mutated in the record of Municipal Corporation of Delhi in respect of the suit property. v. That the Plaintiffs came to know about the unauthorized occupation of the Defendants when the Defendants filed the suit for injunction bearing CS No. 164/2000 in the Court of Senior Civil Judge, inter alia alleging that the Defendant has become the owner/landlord in occupation of the suit property by adverse possession.
vii. That the plaintiffs came to know only in the month of May-2000 about the illegal and unauthorized possession of the defendant when the summons of the suit in CS no. 164/2000 were served upon the Plaintiffs.
Xiii. On coming to know about the illegal and unauthorised possession of the Defendant thereafter the plaintiffs sent a notice dated 02.01.2001 to the defendant thereby calling upon him to restore the possession of the suit property.
37. The entire Defence set up by the Appellant in the present matter can be summarized as follows:
(a) That the Defendant is in the possession of the suit premises for the last more than 30 years and by way of adverse possession, the Defendant has become the owner of the suit property.
(b) The Defendant is in possession of the suit property and residing therein for the last more than 30 years and the possession of the defendant was within the knowledge of the plaintiffs since the year 1972 and no other person has challenged the possession of the appellant and the defendant has become RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 21/30 owner of the suit property because of his uninterrupted long adverse possession.
(c) It was specifically denied by the defendant/appellant that the defendant is a trespasser or unauthorized occupant.
38. The Court of Learned Civil Judge while returning a finding on issue No 1 held that adverse possession claimed by the defendant merely on the basis of long possession which does not necessarily means adverse possession. It was further held that the Defendant has failed to plead and prove as to how and when the possession of the appellant/defendant became adverse to the knowledge of the plaintiffs. It was further held that the defendant has not been able to prove that fact as to when the possession of the defendant came to the knowledge of the plaintiff including the date thereof. It was further held that accordingly the defendant has not been able to show the knowledge of the plaintiff about the possession held by the defendant adverse to the interest of the plaintiff since more then 12 years prior to the filing of the suit.
39. Ld counsel for the appellant has argued that the knowledge of the plaintiff can be demonstrated vide letter Mark A vide which the joint owners of the suit property prior to its partition had issued a notice dt 05.09.1980 to one of the occupant i.e. Gurbachan Singh. The Ld Civil Judge while dealing with the aforesaid contention has clearly held that the said letter dt 05.09.1980 has neither been proved by the defendant nor the same demonstrates the knowledge of the plaintiff qua the occupation of the defendant in the suit property.
40. The Ld Civil Judge came to the conclusion that defendant has clearly failed to plead and prove his title being perfected by adverse possession for the RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 22/30 past 12 years or more. As per the Ld Civil Judge the plaintiff on the other hand duly proved their ownership and also the knowledge gained by the plaintiff about the unauthorized occupation of the defendant upon service of summons of the suit as filed by the defendant against the plaintiff in the year 2000. The Ld Civil Judge accordingly held that the suit as filed by the plaintiff/respondent herein was within the period of limitation since the defendant failed to plead and prove that the defendant was in adverse possession of the suit property or that the aforesaid fact was in the knowledge of the Plaintiffs.
41. Thus in the light of the ratio of the aforesaid authoritative pronouncements, the Appellant/Defendant who was seeking to defeat the rights of the Plaintiff/Respondent was thus required to plead and prove the following facts:
(a) on what date he came into possession
(b) what was the nature of his possession
(c) whether the factum of possession was known to the other party
(d) how long his possession has continued, and
(e) his possession was open and undisturbed
42. In the present case the Defendant in his written statement has merely mentioned the fact of his having become the owner and his remaining in possession for the past 30 years by way of adverse possession. Adverse possession is being claimed by the Defendant merely on the basis of long possession. The Defendant is completely silent as to how and when the possession of the Defendant became adverse to the title of the Plaintiff or whether the Plaintiff had knowledge about the possession of the Defendant. The pleading of the Defendant in his written statement is completely silent on this aspect. Since the defendants were unable to demonstrate holding of the RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 23/30 possession hostile to the real owner and also the knowledge of the owner about the same as per their defence, their mere long possession cannot be said to have ripen into possessory title for want of the animus possidendi as held by the Hon'ble Supreme Court in the matter of T Anjanappa Vs Somalingappa & Others (2006)7 SCC 570, Brijesh Kumar & Anr Vs. Shardabai ( Dead) By LRs & Ors (2019) 9 SCC 369, Kurella Naga Druva Vudaya Bhaskara Rao, M Radheshyam Ian Babu vs Sandhya & Ors . Since the defendants have failed to demonstrate their possession adverse to the title of the plaintiff, it cannot be said that the period of limitation of 12 years as prescribed under Article 65 of the schedule to the limitation act began to run for want of the requisite animus and thus it cannot be said that the right of the plaintiff became extinguished since the period of prescription had not even commenced as held by the Hon'ble Supreme Court of India in the matter of Saroop Singh vs Banto ( 2005) 8 SCC 330. In view of the aforesaid discussion, it is clear that the reliance placed by the appellant on the judgments of Ravinder Kaur Grewal vs. Manjeet Kaur, 2019, SCC 729, Sh. Balraj and anr vs. Sh. Rajbir and anr; 2016 SCC Online Del 3883, Lata Chauhan vs. L.S Bisht; 2010 (117) DRJ 715 is clearly misplaced since in the present case, the period of limitation did not commence at any time prior to the service of summons in the year-2000.
43. Accordingly, as rightly held by the Learned Civil Judge the defendant failed to plead and prove as to how the defendant was in adverse possession of the suit property and the plaintiff was able to prove that she gained knowledge of the unauthorized occupation of the defendant consequent upon the service of summons of the suit as filed by the defendant/appellant herein in the year-2000, hence the contention of the appellant/defendant to the effect that the defendant RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 24/30 became owner of the suit property by way of adverse possession cannot be accepted. Moreover the contention of the appellant to the effect that the present suit which as per the findings returned by Ld Civil Judge on issue no 3 to the effect that the suit is within the period of limitation cannot be said to be hit by the provisions of Section 27 of the Limitation Act. The period of limitation in the present suit commenced on the date the summons of the suit of the Defendant seeking injunction on the basis of adverse possession were served upon the Plaintiff as vide the said summons it was for the first time came to the knowledge of the Plaintiff that adverse possession is being claimed by the Defendant against the Plaintiff.
44. Accordingly, the contention of the appellant to the effect that Ld Trial Court has not considered the import of Section 27 of the Limitation Act merits outright rejection. As per section 27 of the Indian Limitation Act, the right to property becomes extinguished if suit for possession is not instituted during the period of limitation. Since in the present matter the cause of action arose only upon the service of the summons of the suit vide which the Appellant/ Defendant for the very first time claimed injunction on the ground of setting up adverse title against the Plaintiff and the present suit was filed within the statutory period of time of 12 years, section 27 of the Indian Limitation Act, 1963 has no application over the cause of action pleaded and proved by the Plaintiff. The Defendants have clearly not been able to prove the fact that the Plaintiff was aware about the occupation of the Defendants prior to the year 2000, hence the finding returned by the Learned Civil Judge holding the suit filed by the Plaintiff within the period of limitation cannot be said to suffer from any infirmity.
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 25/30
45. Another plea has been raised by the Ld counsel for the appellant to the effect that while deciding issue no 1 erroneous finding has been returned by the Ld Trial court with respect to the suit being barred under the provisions of Section 50 of the Delhi Rent Control Act read with Section 19 of the Slum Area (Improvement and Clearance) Act. The Plaintiff has filed the present title suit against the Defendant/appellant on the ground that the Plaintiff is owner of the suit property which is under the unauthorised possession of the Defendant and is being claimed by the Defendant by way of adverse possession. It was further pleaded by the Plaintiff that the fact of unauthorised occupation of the Defendant came to the knowledge of the Plaintiff upon the service of summons of the suit for injunction filed by the Defendant on the basis of his becoming the owner by way of adverse possession. The defendant in his written statement has at no place taken a plea of his being a tenant and whose application seeking amendment of the plaint incorporating the said ground was rejected by the LD Court which order was upheld by Hon'ble High Court of Delhi and the SLP against the same was dismissed as withdrawn.
46. On merits, the Defendant had at no place claimed any tenancy rights over the suit property who all throughout have pleaded that the Defendant has become the owner of the suit property on the basis of his uninterrupted continuous long possession for the last 30 years. Thus from the aforesaid, it is not the case of the Plaintiff or the Defendant as per the pleading of the present case that the Defendant is the tenant who has all throughout claimed ownership of the suit property on the basis of his having become the owner of the same on the basis of his long possession by way of adverse possession. Thus the present suit as per RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 26/30 the pleading of the parties is a suit based upon title where rival titles have been set up qua the suit property by the parties.
47. The present plea of the suit being barred under Section 50 of the Delhi Rent Control Act is also mutually destructive of the defence of the appellant/defendant who had all throughout not claimed to be a tenant under the plaintiffs and has all throughout claimed ownership by setting up a title in himself by adverse possession.
48. Section 50 of the Delhi Rent Control Act is reproduced herein below for a ready reference as follows:
"50. Jurisdiction of civil courts barred in respect of certain matters.
(1)Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shalt be- granted by any civil court or other authority. (2)If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, such suit or proceeding shall, on such commencement, abate.
(3)If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 27/30 in possession of the premises or to pay him such compensation as the Controller thinks fit.
(4)Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."
49. A bare perusal of Section 50 (1) of the Delhi Rent Control Act that the said Section is applicable when the parties are in a relation of landlord and tenant and the plaintiff is seeking the eviction of a tenant. As per Section 50 (4) of the Delhi Rent Control Act no bar has been created upon the civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which the act applies. The present suit has been filed by the plaintiff against the defendant upon receipt of summons of the suit as filed by the defendant claiming injunction on the ground that the defendant has become the owner of the suit property and the cause of action is clearly pleaded in the suit as filed by the plaintiff/respondent herein to have arisen upon the receipt of the summons.
50. In order to appreciate the applicability of Section 50 of the Delhi Rent Control Act it would be relevant to refer to Section 111 (g) the Transfer of Property Act which is reproduced for ready reference as follow:
111. Determination of lease- A lease of immovable property determines:
(a) ...
(b)...
(c) ....
(d)...
(e) ...
(f) ....
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter 1[*]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 28/30 in himself; 2[or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;'
51. Vide the aforesaid Section, the relationship of landlord and tenant comes to an end the moment the tenant denies the title of the landlord. Keeping in view the fact that under the Delhi Rent Control Act a protection is given to a tenant only against eviction and once a person/tenant disputes the ownership of his landlord or instead claims ownership in himself, he ceases to be a tenant in the eyes of law. A person/tenant upon claiming title in himself by virtue of Section 111 (g) of the Transfer of Property Act ceases to be a tenant and his lease stands forfeited by operation of law and who cannot be permitted to plead that he be extended the benefits extended to a tenant upon forfeiture of tenancy. In view of the same and in view of the defendant having set up a title as owner in himself, the protection as afforded by Section 50 of the Delhi Rent Control Act if any, stood withdrawn and the present which has been filed by the plaintiff against the defendant stating that the defendant is in unauthorized occupation of the suit property is maintainable before the Ld Civil Court and the provisions of Section 50 of the Delhi Rent Control Act have no applicability to the facts and circumstances of the present case.
52. The Hon'ble High Court of Delhi in the matter of Naeem Ahmed Vs Yashpal Malhotra (deceased) through LRs & Anr in similar set of circumstances has held that the suit of the nature as filed by the plaintiff is well maintainable before the Civil Court and Section 50 of the Delhi Rent Control Act has no application.
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 29/30
53. The Hon'ble Supreme Court of India in the matter of Kurella Naga Druva Vudya Bhaskara Rao Vs Galla Jani Kamma Alias Nacharamma, 2008 (11) SCALE 160 while affirming the decision rendered in the case of Abdulla Bin Ali Vs Glappa (1985) 2 SCC 54 held that the suit treating the defendants as trespassers on the ground of the denial of title would only lie in a civil court and not in the revenue court under the tenancy act.
54. Accordingly, in view of the aforesaid, the contention of the appellant to the effect that the suit is barred by virtue of Section 50 of the Delhi Rent Control Act is without any merit and the reliance placed by the appellant on judgments i.e. Singer India Ltd vs. Chander Mohan Chadha and others (2004) 7 SCC 1, M/s Parasram Harnand Rao vs. M/s Shanti Parsad Narender Kumar Jain and anr (1980) 3 SCC 565, Fab India Overseas Pvt Ltd vs. S.N Sheupuria 2013 SCC Online Del 404, Suhash Chand Goel and others vs. Hans Raj Gupta and Company Pvt Ltd, 2019 SCC Online Del 9890 is clearly misplaced and which are distinguishable on facts since in all the cited cases, the relationship of landlord and tenant subsisted and in none of the cited cases, there is any application of Section 111(g) of the Transfer of Property Act on the ground of setting up of title thereby amounting to forfeiture of tenancy.
55. Accordingly, the present appeal being devoid of any merits is hereby dismissed.
56. TCR be sent back along with the copy of the order.
57. Appeal file be consigned to record room.
Announced in the open court (Sachin Sood)
28.10.2024. DJ-01 (Central)
THC, Delhi.
RCA No 68/18 Sant Singh Vs Jagjit Singh Sawhney & Ors Page no 30/30