Delhi District Court
Shri Vijay Singh vs Municipal Corporation Of Delhi on 28 March, 2011
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST)
Suit No. 225/08
Unique Case ID No. 02402C0824942008
1. Shri Vijay Singh
2. Shri Sant Singh
both sons of Late Shri Om Singh
r/o House No. 85, village Babarpur,
Shahdara, Delhi110032.
........... Plaintiffs.
VERSUS
Municipal Corporation of Delhi
through its Commissioner,
Town Hall Chandni Chowk, Delhi110006.
......... Defendant.
Date of institution of the suit : 18.11.2008
Date on which order was reserved: 16.03.2011
Date of decision : 28.03.2011
SUIT FOR POSSESSION, DECLARATION AND INJUNCTION.
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiffs are native residents of village Babarpur, Illaqa Shahdara, District NorthEast, Delhi. It has been further stated that Shri Om Singh, the father of the plaintiffs and predecessorininterest of the plaintiffs was in actual physical possession, use and occupation of land measuring 1 bigha and 10 biswas forming part of khasra no. 428/309 situated in the Revenue Estate of village Babarpur, Delhi32. It has been further stated that Shri Om Singh encircled the suit property by raising the boundary wall and later on constructed the eight rooms to cater the growing needs and so was in settled possession of the suit property. It has been further stated that the super structure was assessed to house tax by the defendant and the electricity connection was sanctioned and installed by DVB after verification and completion of the formalities. It has been further stated that in the revenue record, Gaon Sabha Babarpur was shown as Bhumidar in respect of khasra no. 428/309 in the column of Bhumidar and the name of Shri Om Singh was shown in the column of possession and the entries in the revenue record remain unchallenged and uncontroverted. It has been further stated that on account of continuous, uninterrupted and long possession, the right of Gaon Sabha extinguished. It has been further stated that the Gaon Sabha did not initiate any proceedings against the said Shri Om Singh whose possession was upon the land otherwise than in contravention of the provisions of the law. The case of the plaintiffs is that the local police of P.S. Shahdara, initiated the proceedings under section 145 of the Cr. P.C. against Shri Om Singh as party no.1, the MCD and the Gaon Sabha as Parties no. 2 and 3. It has been further stated that on the basis of reference to the Civil Judge, the possession of Shri Om Singh was established and proved and a finding was returned to that effect and the attachment was withdrawn in favour of Shri Om Singh. It has been alleged that the defendant and its officials without any right, title or interest in the land, partly demolished the super structure on 03.04.1995 and Shri Om Singh was forced to file a Civil suit under section 6 of the Specific Relief Act on the basis of wrongful dispossession and later on , during the pendency of the proceedings, the MCD officials further raised the boundary wall on previous structure on 28.11.1996 and then put the lock and gate illegally and the entry was prevented. It has been further stated that Shri Om Singh expired on 24.02.1997 living behind the plaintiffs as his legal heirs and the plaintiffs thus succeeded all the rights, title and interests in the estate of late Shri Om Singh by the operation of law. It has been further stated that the provisions of the MCD Act are not applicable upon the suit land and the demolition dated 03.04.1995 was illegal, unlawful and till date the possession of the defendant has not been entered in the revenue records in any capacity. It has been alleged that the plaintiffs continuously approached the defendant time and again to remove the locks and to allow them to use the suit property but of no use. It has been further alleged that the plaintiffs issued the legal notice dated 21.08.2008 which was duly served upon the defendant but the same was not complied with.
On the basis of the abovesaid allegations as contained in the plaint, the plaintiffs have prayed for a decree of possession in respect of the land measuring 1 bihga, 10 biswas forming part of khasra no. 428/309 situated in the revenue estate of village Babarpur, Delhi as shown in red colour in the site plan annexed with the plaint.
The plaintiffs have also prayed for a decree of Declaration to the effect that the defendant is not having any right, title or interest in the suit property and the possession of the defendant in the suit property is without any sanction and authority.
The plaintiffs have also prayed for a decree of Permanent injunction restraining the defendant and its agents etc. from transferring, selling, alienating or raising construction, super structure or creating third party interest in any manner in the suit property. The plaintiffs have also prayed for the costs of the suit as well.
2. Written statement has been filed on record by the defendant stating therein that the suit of the plaintiffs is bad for want of notice u/s 477 / 478 of the DMC Act; the suit of the plaintiffs is without any cause of action; plaintiffs have not come to the court with clean hands; the suit of the plaintiffs is barred by section 11 of the CPC; the suit of the plaintiffs is barred by Order 2 Rule 2 of the CPC. It has been further stated by the defendant that the plaintiffs had also filed the suit on the basis of the same cause of action in the court of Shri Sanjay Kumar and the said suit was dismissed on 12.03.2003 and as such, the present suit is not maintainable. It has been further stated that the suit land was duly acquired and thereafter the same was handed over to the AEO of Shahdara North Zone, MCD on 03.08.1995. The copy of the handing over and taking over report has been filed by the defendant alongwith the written statement. It has been further stated that the suit land was plot at the time when the same was acquired and moreover, no house tax was ever assessed and therefore, the question of depositing the house tax does not arise at all. It has been further stated that w.e.f. 03.08.1995, the suit land is in exclusive possession of the defendant. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiffs be dismissed.
3. Replications has been filed on record by the plaintiffs reiterating and reaffirming the stand as taken by the plaintiffs in the plaint and denying the contents of the written statement. It has been stated by the plaintiffs in the replication that the suit under section 6 of the Specific Relief Act is a special suit and tried in a summary way and the same does not come in the way of filing the present suit on the basis of title. It has been denied by the plaintiffs that the land was acquired and was handed over to the AEO, Shahdara Zone, as alleged. It has been further stated that the suit before Shri Sanjay Kumar, Ld. Civil Judge, Delhi was on a differing footing which has no bearing on the present case which is based on title.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 19.03.2009.
1) Whether the plaintiff is entitled for decree of possession as prayed in the suit ? OPP
2) Whether the plaintiff is entitled for decree of Declaration as prayed in the suit ? OPP
3) Whether the plaintiff is entitled for decree of Permanent Injunction as prayed in the suit ? OPP
4) Relief.
In order to prove their respective cases, the plaintiffs have examined plaintiff no.1 Shri Vijay Singh as PW1, Shri Ram Kumar as PW2 and Shri Kishan Singh as PW3. The defendant MCD has examined its Deputy Education Officer, Shahdara North Zone, MCD Shri Kanwar Singh as DW1. The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
5. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties. The plaintiffs and the defendant as well have also filed on record their written final arguments. I have also carefully gone through the written final arguments filed on record by the parties.
6. My issuewise findings on the abovesaid issues are as under:
Issues No. 1, 2 and 3.
All these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit.
Ld. counsel for the plaintiff, in the written final arguments, has argued that the defendant took two self contradictory defence, one that the suit land was acquired and handed over to them and secondly, that the suit land was gifted by the Gaon Sabha in 1952. It has been further argued that the defendant failed to place any document in support of his claim. It has been further argued that the defendant is not claiming any independent right. It has been further argued that DW1 Shri Kanwar Singh has admitted that the father of the plaintiffs was in possession from 1973 to 03.04.1995 when the suit property was forcibly demolished and possession was illegally taken by the MCD. It has been further argued that the defendant failed to rebut the cogent evidence adduced by the plaintiffs and as such, adverse presumption arises against the defendant. It has been further argued that the father of the plaintiffs remained in adverse and hostile possession of the suit property upto 03.04.1995 and title of the Gaon Sabha extinguished and the father of the plaintiffs perfected his title by prescription. It has been further argued that the plaintiffs have examined as many as three witnesses and the testimony of all the three PWs is not shaken and as such, the PWs have proved the case of the plaintiffs. It has been further argued that DW1, the only witness examined by the defendant has failed to prove the case of the defendant. It has been further argued that the plaintiffs have always denied the title of the defendant and asserted their own title by way of adverse possession. It has been further argued that no proceedings for eviction were ever filed by the defendant in any court of law against the plaintiffs despite the fact that the defendant was very much aware about the adverse possession of the plaintiffs over the suit property since the very beginning. It has been further argued that there is no evidence on record which convey any title to the defendant. It has been further argued that the plaintiffs have been able to prove their case and suit of the plaintiffs be decreed. Ld. Counsel for the plaintiffs has relied upon the following authorities.
(1) Cited as (2007) 11 SCC 75 titled as S. Nazeer Ahmad Vs. State Bank of Mysore & Ors. Wherein it has been held that "The burden of proof is on the defendant to prove bar of order 2 rule 2 of CPC."
(2) AIR 2004 SC 3354 titled as Sanjay Kumar Pandey & Ors. Vs. Gulbahar Sheikh & Ors. Wherein it has been held that "The remedy of a person unsuccessful in a suit under section 6 of Specific Relief Act is to file a regular civil suit." (3) 1901 ILR 157 titled as Govind Prasad Vs. Mohan Lal, wherein it has been held that "A person in possession of land without title has an interest in the property which is heritable and good against all the world except true owner, an interest which unless and until the true owner interferes, is capable of being disposed off by deed of Will or by execution sale just in the same way as it could be dealt with it, the title were unimpeachable."
(4) AIR 1968 SC 1165 titled as Nair Service Society Ltd. Vs. K.C. Alexender & Ors.
Wherein it has been held that, "A person in possession of land is assumed character of owner and after the statutory period he acquired title." (5) AIR 1970 SC 846 titled as Somnath Berman Vs. Dr. S.P. Raju, wherein it has been held that, "Action for ejectment : prior possession of plaintiff is sufficient title against trespasser."
(6) AIR 1970 SC 2320 titled as Dindayal & Ors. Vs. Raja Ram Limitations Act (1908) wherein it has been held that, "Section 28 (Now 27) applies also to suits to which limitation is provided in the Act."
(7) AIR 1971 SC 2320 titled as Hatti Vs. Sunder Singh, wherein it has been held that, "Under the Delhi Land Reform Act, 1954 only Bhumidar, Asami or Gaon Sabha are entitled for recovery of possession."
(8) AIR 1979 SC 1142 titled as Padminibai Vs. Jangavva & Ors. Wherein it has been held that, "Perfected title by remaining in adverse possession, exclusive and open possession for exceeding 12 years."
(9) AIR 1966 SC 1603 titled as Sarang Deva Periya Matam & Ors. Vs. Ramaswami Goundar (dead) by LRs. : Plaintiff acquired title by prescription. (10) AIR 1998 SC 2995 titled as Muneshwar (dead) by L. Rs. Vs. Raja Mohmmad Khan Khan, wherein it has been held that, "suit for ejectment filed beyond prescribed period or decree however not executed."
(11) AIR 2001 SC 700 titled as Bal Krishan Vs. Satya Prakash & Ors., wherein it has been held that, "Mere passing of order of ejectment which was not executed adn not acted upon. Possession ripen into adverse possession after statutory period." (12) AIR 2003 SC 1905 titled as Bondar Singh & Ors. Vs. Nihal Singh & Ors., wherein it has been held that, "Plaintiff perfected title by adverse possession for more than 12 years before dispossession.
(13) AIR 2005 SC 4407 titled as Saroop Singh Vs. Banto, wherein it has been held that, "Adverse possession: Burden of proof is on defendant. (14) AIR 1998 HP 43 titled as Rajinder Singh Vs. Dalbir Singh and Ors. Wherein it has been held that, "Adverse possession is a question of fact which must be specifically pleaded and proved."
(15) AIR 2008 SC 363 titled as C. Natrajan Vs. Ashimbai & Ors. Wherein it has been held that, "Burden is on the defendant to prove that he has acquired title by adverse possession."
(16) AIR 1976 Mad. 124 titled as Bhagavathy Pillai & Ors. Vs. Savarimuthu & Ors. Wherein it has been held that, "The case of title set up on written statement has been found against the defendant."
(17) AIR 2003 SC 4548 titled as RVE Venkatachala Gounder Vs. Arilmigu Vishwesvaraswami, wherein it has been held that, "Once plaintiff is able to create high decree of probability to shift onus on defendant. It is for defendant to discharge his onus."
(18) AIR 1973 Raj 322 titled as Shahi Jama Masjid Merta Vs. Kanhaya Lal Bhagat, wherein it has been held that, "Long possession may be evidence of title as well." (19) AIR 1961 SC 1570 titled as Bishan Dass & Ors. Vs. State of Punjab & Ors., wherein it has been held that, "Possession taken by executive action is destructive of the basic principal of the rules of law."
(20) All India Rent Control 1970 SC 95 Mohan Lal & Ors. Vs. The State of Punjab wherein it has been held that, "Under over jurisprudence even an Unauthorized occupant can be evicted only in the manner authorized by law." (21) AIR 1996 Orissa 180 titled as Guru Naik Vs. Arjun Charan Dash, wherein it has been held that, "Defendant failed to prove to be related as claimed in written statement to party through which he laid claim."
(22) AIR 1983 P & H 83 titled as Inder Singh & Ors. Vs. Ujagar Singh, wherein it has been held that, "It is for defendant to prove adverse possession of the suit land for more than 12 years."
(23) 2004(1) M.P. LJ 180 titled as Moh. Syed Vs. Hindustan Petroleum, wherein it has been held that "If allegation in the plaint is not denied specifically or only no knowledge is pleaded it amounts to an admission."
(24) AIR 1992 M.P. 1 titled as Hariram Lehrumal Sindhi Vs. Anandrao Narayanrao Mukati and ors., wherein it has been held that "Denial of allegations for want of knowledge amount to admission."
(25) AIR 1963 SC 1633 titled as Madamachi Ramappa & Ors. Vs. Muthaluru Bojjappa, wherein it has been held that "Evidence Act (1872) Section 77, Certified copies of a public document. Admissible in evidence without being proved by calling a witness."
(26) AIR 1964 SC 136 titled as A. Raghavamma & Ors. Vs. A. Chenchamma & Ors. Wherein it has been held that "Evidence Act (1872) Section 114 All relevant documents admitted to have been in existence but not placed before court by party concerned. Adverse inference has to be drawn against that party." (27) AIR 1968 SC 1413 titled as Gopal Krishan Ji Kettar Vs. Moh. Haji Latif, wherein it has been held that "Evidence Act 114(g) & 103 A party in possession of best evidence withholding it, court ought to draw adverse inference against him." (28) 2010 RLR 36 (SC) titled as Maruthi Jaiwant Vs. Eknath G. Navrekar, wherein it has been held that "The statutory presumption arising out of revenue record should be given due importance."
(29) 2009(2) PLR 50 titled as Nathu Ram Vs. Akhara Panchayat Jamabandi wherein it has been held that "Regarding possession: Such entries comes presumption of truth, until and unless rebutted the khasra girdvaries, carrying such entries comes a presumption of correction, until proved to the contrary."
(30) 169 (2010 DLT 361 titled as Ashok Chopra Vs. Syndicate Bank wherein it has been held that "Documents cannot lie: Documentary evidence has to be read in super session and over and above oral testimony of a witness." (31) AIR 1996 SC 112 titled as Abubakar Abdul Inamdar (dead) by LRs and others. Vs. Harun Abdul Inamdar and others, wherein it has been held that "Plea as to, not raised in pledings No amount of proof can substitute pleadings, which are the foundation of claim of a litigating party."
(32) 2010 ACT 2568 titled as Darilian Passah Vs. Batricti Lyngoah & Ors. Wherein it has been held that "Evidence Act 1972: Section 101 and 102 legal position on burden of proof explained"
(33) 2009 (2) RCJ 64 titled as Roop Singh Vs. Murti Sri Radha Krishan Ji, wherein it has been held that "Transfer of property Act 1882: Registration Act 1908 Section 17(1) (a) and 49 regarding gift of property."
(34) 2010 (119) DRJ 57 S.S.P. Buildcon (P) Ltd. Vs. MCD & Ors. Wherein it has been held that "the plea of DDA of the land subject matter of petition having been acquired and vested in it, cannot sustained."
(35) 1972 MPLJ 969 Mst. Sultan Jehan Begum & Ors. Vs. Gul Mohammad & Ors., wherein it has been held that "It is well settled rule of law that the possession of one person cannot be distributed by any person except one having a better title." (36) AIR 1972 Del 29 titled as Municipal Corporation of Delhi Vs. Hiralal Tota Ram, wherein it has been held that "Delhi Municipal Corporation is only competent to remove encroachment on a public street u/s 320 & 321."
(37) 2010 (3) ALJ 93 (SC) Urban Improvement Trust Bikaner Vs. Mohan Lal, wherein it has been held that "Statutory authorities exist to discharge statutory functions in public interest, they should be responsible litigant. They cannot behave like some private litigants. "
(38) AIR 2007 SC 1575 titled Kandapazha Nadar & Ors. Vs. Chitraganiammal & Ors. Wherein it has been held that "withdrawal of the suit does not constitute Decree."
(39) 174(2010) DLT 177 titled as Amravati Vs. Dharamraj, wherein it has been held that "In passing an order under section 145(6), Criminal Procedure Code, the Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is an apprehension of the breach of the peace and with that object, he makes a temporary order irrespective of the rights of the parties which will have to be agitated and disposed off in the said manner provided by law. The life of the said order is conterminous with the passing of a decree by a civil Court and the moment a civil Court makes an order of eviction, it displaces the order of the criminal Court. The orders are thus merely police orders and decide no question of title."
Whereas on the other hand, Ld. counsel for the defendant in the written final arguments has argued that the Gaon Sabha had gifted the land to the defendant for running the school and accordingly the MCD has been running a school on the suit land since 1952 which was taken over by the MCD when it was founded under the DMC Act 1957. It has been further argued that later on the suit land was acquired by the Land and Estate department who formally handed over the possession of the land on 03.08.1995 and the handing over and taking over report is already there on record. It has been further argued that the father of the plaintiffs trespassed into the suit land in the year 1973 and the proceedings under section 86 A of the Delhi Land Reforms Act 1954 were initiated. It has been further argued that an order was passed and the proceedings were initiated in the year 1973 under section 145 of the Cr. PC. It has been further argued that the said proceedings were referred under section 146 (1) of the Cr. P.C. to the Ld. Civil Judge and the Ld. Civil Judge decided the issue of possession in favour of the father of the plaintiffs. It has been further argued that the father of the plaintiffs challenged the ejectment order passed against him by the Revenue Assistant by way of a revision petition and the same was dismissed. It has been further argued that on 12.12.1975, the father of the plaintiffs filed a suit for Declaration stating therein that the orders passed by the Revenue Authorities were without the jurisdiction. Interim injunction was prayed for and the same was declined. Appeal filed was also dismissed and the father of the plaintiffs filed a Civil Revision Petition which was also dismissed on 06.07.1988. It has been further argued that the father of the plaintiffs remained in illegal possession between the year 1973 to 1995 under the garb of stay orders obtained by him on false grounds. It has been further argued that Civil Writ Petition no. 593/2003 titled as Om Singh and Ors. Vs. MCD was preferred and the same was dismissed and the entire case of the plaintiffs has already been discussed in the orders passed by the Hon'ble High Court of Delhi on 17.04.2004. It has been further argued that the plaintiffs filed another suit under section 6 of the Specific Relief Act which was dismissed by Shri Sanjay Kumar Ld. Civil judge, Delhi on 12.03.2003. It has been further argued that the SLP bearing no. 398/89 preferred by the father of the plaintiffs was also dismissed as withdrawn. It has been further argued that by concealing all the abovesaid facts regarding the previous litigations, the plaintiffs have filed the present false suit on the basis of the plea of adverse possession and the same is also liable to be dismissed. It has been further argued that the present suit is barred by section 10 of the CPC as well as by section 185 of the Delhi Land Reforms Act 1954. It has been further argued that the present suit of the plaintiffs be dismissed.
7. Now let us discuss the evidence led by both the parties.
The plaintiff no.1 has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiffs in the plaint. He has exhibited various documents such as the site plan, legal notice, postal receipt, UPC receipt, house tax bill, electricity bill, copy of the khasra girdawari, copy of the proceedings u/s 145 of the Cr. PC. and the affidavit of the MCD etc. In the cross examination, PW1 has stated that he is not aware about any case filed by his father in the court of Shri Sanjay Kumar, Ld. Civil Judge, Delhi, which was dismissed on 12.03.2003 or any case filed by him before the Hon'ble High Court of Delhi for the same cause of action and the same was also dismissed on 31.10.2006. PW1 further stated that he is not aware about the SLP pending in the Hon'ble Supreme Court. PW1 has admitted it to be correct that the khasra girdawari filed by him on record are after the year 1969. PW1 is unable to tell that before 1969, the MCD was in possession as shown in the Khasra girdwari. PW1 has further stated that all the house tax receipts filed by him on record were in the name of his father and the electricity bills were in the name of his mother. PW1 has further stated that he did not have any house tax receipt prior to 1995. PW1 further states that he does not have the mutation order in the name of his father nor he is aware regarding the said mutation.
The plaintiffs have examined Shri Ram Kumar and Shri Kishan Singh as PW2 and PW3 and both these witnesses, in their evidence by way of affidavit, have stated that the father of the plaintiffs was in possession of the land measuring 1½ bigha falling in khasra no. 428/309 and a boundary wall and eight rooms were constructed thereon. It has been further stated that in the said suit land, there was a electricity connection and the house tax was also being deposited. It has been further stated that on 03.08.1995, the MCD had broken the abovesaid suit property.
In the cross examination, both these witnesses have stated that they are not aware about any other case filed by the father of the plaintiffs either in the District Court, or in the Hon'ble High Court or in the Supreme Court. PW2 has stated that he is deposing at the asking of the counsel of the plaintiffs. To the similar effect, is the deposition of PW3 in his cross examination.
The defendant has examined its Deputy Education Office Shri Kanwar Singh as DW1 and in his evidence by way of affidavit, DW1 has reiterated and reaffirmed the stand as taken by the defendant in the written statement. He has filed on record the photocopy of the handing over and taking over report dated 03.08.1995 as mark A, photocopy of the certified copy of the judgment passed in suit no. 403/02/1995 as mark B, true copy of the orders passed in CRP no. 193/05 as mark C. In the cross examination DW1 has stated that the land in dispute was acquired on 03.08.1995. DW1 further states that he does not remember and he cannot tell without seeing the records, the Award number by which the land in question was acquired. By way of volunteer, DW1 has stated that the land in question was acquired by the Land and Estate department and thereafter the possession was handed over to the Education department. DW1 further states that he cannot produce the records pertaining to the acquisition of the land in dispute. By way of volunteer, DW1 has further stated that because the same is under the control of Land and Estate Department. DW1 has admitted it to be correct that the handing over and taking over of the possession of the land in dispute did not take place in his presence. DW1 has further admitted it to be correct that no gift deed has been filed by him in the court record. DW1 further states that MCD did not carry out the proceedings u/s 86 (a) of the DLR Act 1954. DW1 further states that he is not aware as to who carried out the proceedings under section 86(a) of the DLR Act. DW1 has denied the suggestion that in the papers, the Gaon Sabha was the owner of the land in dispute, whereas, the father of the plaintiffs was in actual physical possession of the same adversely. DW1 has denied the suggestion that father of the plaintiffs was in possession of the suit land from 1973 till 03.04.1995. DW1 has admitted it to be correct that on 02.12.1978, Shri Nathu Singh, the then SDM of Shahdara Zone, had ordered for opening of the seal of the land in dispute in favour of the father of the plaintiffs but it is wrong to suggest that the possession of the land in dispute was also handed over to the father of the plaintiffs. DW1 further states that he is not aware as to whether the MCD got any mutation in its favour in the revenue record with regard to the land in dispute. DW1 is unable to admit or deny the suggestion that on 03.04.1995, when the demolition was done by the MCD, the suit land was having eight rooms and a boundary wall belonging to the father of the plaintiffs. DW1 is unable to tell as whether the MCD issued a notice to the father of the plaintiffs before the demolition of the suit property on 03.04.1995.
In the light of the abovesaid pleadings and the evidence led by the parties, the vital question to be considered by this court is as to whether the plaintiffs have been able to prove the plea of adverse possession, on the basis of which the present suit has been filed on record by the plaintiffs.
So far as the law of adverse possession is concerned, the law is well settled in the various judgments of the Hon'ble Superior courts.
In Saroop Singh v. Banto and Ors. (2005) 8 SCC 330, Apex Court held :
"In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. ......."Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite 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.
The said statement of law was reiterated in T. Anjanappa and Ors. v. Somalingappa and Anr. 2006) (8) Scale 624 : (2006) 7 SCC 570, stating :
"It is wellrecognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
Yet, in P. T. Munichikkanna Reddy and Ors. v. Revamma and Ors. (2007) 6 SCC 59, Apex Court noticed the development of law in other jurisdiction in the context of property as a human right to opine:
"Therefore, it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights."
Again Supreme Court in M. Durai v. Muthu and Ors. (2007) 3 SCC 114, noticed the changes brought about by Limitation Act, 1963, visavis, old Limitation Act, & held:
"The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 visavis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."
So it is very clear from above discussion that claim by adverse possession has two elements :
(1) The possession of the defendant should become adverse to the plaintiff; and (2) The defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession.
It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.
In "P. T. Munichikkanna Reddy v. Revamma" AIR 2007 SC 1753 it was held that adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and wilful neglect but also on account of possessor's positive intent to dispossess. Therefore, it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paperowner of the property.
As per the own assertions of the plaintiffs, their father Shri Om Singh was in settled possession of the land in dispute in between the period from 1973 till 03.04.1995. However, it has to be seen that in between the said period, the proceedings u/s 145 of the Cr. P.C. were initiated and the proceedings u/s 86 (A) of the Delhi Land Reforms Act were also initiated and as such, it cannot be said that the father the plaintiffs was in settled possession. I am of the opinion that the plaintiffs have utterly failed to prove on record the continuous, uninterrupted and settled possession in order to sustain the plea of adverse possession.
It has to be further seen that the present suit is directly hit by the findings of the Hon'ble High Court in Cr. No. 593/2003 which was dismissed by the High Court of Delhi vide orders dated 17.04.2004. It has also to be seen that the plaintiffs have also concealed the various grounds of litigations that were carried out with regard to the land in dispute.
In the light of the abovesaid discussions, I have no hesitation to hold that the plaintiffs have failed to prove both the abovesaid issues in their favour and as such, both the abovesaid issues are decided against the plaintiffs.
Relief.
In the light of my findings upon the foregoing issues, the suit of the plaintiffs is hereby dismissed but with no orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 28th day of March, 2011. JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.