Delhi High Court
Harbans Kaur And Ors. vs Bhola Nath And Anr. on 1 December, 1994
Equivalent citations: 1995IAD(DELHI)272, 57(1995)DLT101, 1995(32)DRJ262
JUDGMENT Mohd. Sharnim, J.
(1) The appellants/defendants (hereinafter referred to as the appellants for the sake of convenience) have preferred this appeal against the judgment and order passed by the first appellate court dated September 1,1973 whereby the judgment and decree passed by the learned lower court were set aside and a decree for possession over the plot shown by red colour in the plan Ex.P8 was passed in favor of the respondents plaintiffs ( hereinafter referred to as the respondents for the sake of brevity).
(2) Brief facts that gave rise to the present appeal are as under: "THAT one Shri Amar Nath who was the father of the respondent No.1 and the husband of the respondent No.2 purchased plot No. 4790, Roshan Ara Road, Aryapura, Delhi, in a court auction held on January 15,1965. The said auction was subsequently confirmed in favor of the deceased Shri Amar Nath Seth on February 24,1965 by Shri Dalip Singh, Sub Judge 1st Class, Delhi, in a case entitled as Hira Lal Seth v. Shri Amar Nath. On enquiries it was revealed that one Shri Harnam Singh was in an unauthorised occupation over the said plot since January 1962 fully shown by red lines in the plan Ex.P8 annexed with the plaint. The said Shri Amar Nath breathed his last on January 5,1967 and left for his heavenly abode on the said date leaving behind the respondents as his legal heirs. Shri Harnam Singh was duly served with a registered notice to vacate the above-said plot and to hand over the peaceful vacant possession over the same to the respondent and to pay damages for use and occupation of the same. Shri Harnam Singh paid little heed to the said notice. He neither vacated the said plot and delivered its vacant possession over the same to the respondent nor paid damages for its use and occupation. The respondents' are entitled to damages for use and occupation of the said plot from January 5,1965 onwards at the rate of Rs. 20.00 per mensern. A sum of Rs.295.00 is due to the respondents from the appellants for the period from January 5,1965 to March 7,1968. However, the respondents claimed a sum of Rs. 200.00only on the said score. Hence arose the necessity for the institution of the suit."
(3) Shri Harnam Singh Sethi, defendant died during the pendency of the suit and the appellants who are his legal heirs were brought on record vide order dated December 8,1971. passed by the learned lower court.
(4) The appellants put in contest, inter alia, on the following grounds: that the suit is not properly valued for the purposes of court fee and jurisdiction; the appellants are in occupation over the said plot as owners thereof since the partition of the country. They have perfected their-title to the suit property by adverse possession. It- is false and preposterous that the appellants are in occupation over the disputed property since January 1962. The fact is that Shri Harnam Singh Sethi who was their predecessor - in- interest was a displaced person. He has been in occupation over the disputed property since the year 1957. He had been running a school over the said plot of land in the name of Ashoka High School and was residing therein Along with his family members. He raised structures on the said plot of land at his own cost consisting of four rooms, a kitchen, a bath room, a latrine and anoffice. The deceased in this way expended a sum of Rs. 10,000.00 in raising the said structures. The deceased had been paying the house tax and water tax in respect of the said premises and now the same is being paid by the present appellants.
(5) The learned lower court was of the view that the respondents have perfected their title to the disputed property by adverse possession and as such, the suit was barred. He thus dismissed the suit Oh February 23,1973.
(6) On appeal the learned Additional District Judge reversed the judgment, and decree passed by the lower court. He held the respondents herein entitled to recovery of possession over the plot shown by red lines in the plan Ex.P8 annexed with the plaint ( hereinafter referred to as the disputed property ).
(7) Aggrieved and dis-satisfied with the judgment and order passed by the first appellate court the appellants have approached this Court.
(8) It has been urged by Mr. N.S.Sistani, learned Senior counsel for the appellants that the learned first appellate court fell into a grave error by coming to the conclusion that the respondents are entitled to recovery of possession over the disputed property. In fact, the appellants have been in uninterrupted peaceful occupation over the disputed property since the year 1947. Thus they have perfected their title by adverse possession and it should have been held as such by the learned first appellate court.
(9) Learned counsel for the respondents Ms. Bharati Patney has contended to the contrary with all zeal and fervour at her command.
(10) It is manifest from the facts canvassed above that a short yet very important question which falls for decision in the present appeal is as to whether the appellants have perfected their title by adverse possession over the disputed property and as such they are entitled to remain in occupation over the same?
(11) It is manifest from above that the fate of the present appeal hinges on the reply by this Court to the above question. In view of the above I would first like to deal with the point as to what is adverse possession? Under what circumstances a party would be deemed to have completed his/her title to a property by adverse possession?
(12) Adverse possession implies a hostile possession whereby the title-of the true owner is denied. There is a consensus of opinion amongst all the High Courts with regard to the ingredients which a party in adverse possession over a property belonging to another must prove in order to claim. title on the basis of the same: (a) He must show that he has been in continuous possession over a particular property for more than 12 years, without a break and without interruption. (b) His possession was to the exclusion of all the other persons. (c) Possession was of such a nature that it involved the exercise of rights so irreconcilable with that of the true owner as to afford him an opportunity to dispute that possession during the 12 years when he was in the process of perfecting his title. (d) Adverse possession must have commenced in wrong and maintained against the right. (e) It must be open and hostile to the true owner. (f) Possession must be nec vi, nec clam, nec presario i.e. for the perfection of title it must be adequate in continuity, in publicity and extent. The above question came up for decision before quite a good number of High Courts, Privy Council and the Supreme Court and is the subject matter of a large number of decisions. It would thus be in the fitness of things to refer to a few judgments to illustrate the above requirements.
(13) The above matter came up for consideration before a Full Bench of the Punjab High Court as reported in Ganda Singh and others v. Ram Narain Singh, Lxi P.L.R.(1959) 374 ( at page 377) ...."The plea of adverse possession is not always a legal plea. Indeed, it is always based on facts which must be asserted and proved. A person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession continued. He must also show whether his possession was open and un-disturbed. These are all questions of fact and unless they are asserted and proved, a plea of adverse possession cannot be inferred from them.......An attribute of adverse possession is that it begins with disseisin or ouster of the owner. It is an act of displacement of the owner by the adverse claimant. Disseisin or ouster of the real owner is the foundations of the title by adverse possession. It remains an inchoate title, or a growing title till the expiration of 12 years of its continued, open and hostile assertion and enjoyment. Before title of adverse possession is perfected, all presumptions and intendments are in favor of the real owner. There are a very large number of hurdles before the adverse claimant, which he has successfully to clear. It is only after those obstacles are overcome, that the claimant of title, by adverse possession, receives the protection of law after the expiration of twelve years. Till then the law withholds its support from the wrong-doer".
(14) Their Lordships of the Privy Council opined in Ejas Ali Qidwai and others v.Special Manager, Court of Wards, Balrampur Estate and others, ,.. .."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 a denial of his title to the property claimed. This onus the appellants have failed to discharge. Neither the entry of Nawazish Ali's name in the revenue records as the owner of the taluka, nor his possession thereof, could, in the circumstances of the case, affect the title of the person or persons who had the right to inherit it".
(15) The above view was also given vent to by a Division Bench of the Punjab High Court as reported in Ram Lal and others v Chetu alias Chet Ram and others, Lix P.L.R. (1957) 497 ( at page 499 ......."Adverse possession, as the words imply, must be actual possession of another's land with intention to hold it and claim it as his own. It must commence with the wrongful dispossession of the rightful owner at some particular time; it must commence in wrong and must be maintained against right. It must be actual, open, notorious, hostile, under claim of right, continuous and exclusive and maintained for the statutory period. Indeed, it should be so open and exclusive as to leave no doubt as to the intention of the occupant, so notorious that the owner may be presumed to have knowledge of the adverse claim and so continuous as to furnish a cause of action every day during the required period".
(16) With the above background let us now see as to how far the appellants herein have succeeded in substantiating their averment that they have become owners by adverse possession of the disputed property. Shri Harnam Singh Sethi, predecessor-in-interest of the present appellants no doubt has asserted vide para 4 of the written statement that he has become the owner of the disputed property by adverse possession inasmuch as he has been in occupation thereof since the time of partition. A close scrutiny of the written statement, however reveals that it has nowhere been stated therein as to on what particular date and even in which month the said disputed property was occupied. Thus, the pleadings are conspicuously silent on this point. Furthermore, he has nowhere pleaded that his possession over the disputed property was open, hostile and continuous.
(17) DW10 Smt. Harbans Kaur has tried to substantiate the above averments of the Written statement through her statement on oath. According to her, she has been in occupation of the disputed property for the last 22 years and her husband was running a school in the disputed property under the name and style of Ashoka High School. Her statement was recorded on August 14,1972. If the period of 22 years is computed on the basis of the said date then it would come to August 14,1950. Subsequently, I feel on a second thought, she' goes on to state that she has been in occupation over the same since the creation of Pakistan. That can at the most be the year 1947.
(18) Then there is the statement of DW3 Ram Lubhaya on the point of adverse possession. According to him, the husband of the appellant No. 1 was running a school at the disputed property. He taught over there for 8 or 9 months. On being cross-examined he admitted that an appointment letter was issued to him. However, he was not in possession of the same. Thus his statement is not of much assistance to the appellants. The other witnesses examined by the appellants in order to prove their adverse possession over the disputed property are DW1 Harnam Singh and DW2 Shyam Narain. Dwi Harnam Singh has deposed to the fact that the deceased Harnam Singh Sethi has been in occupation over the disputed property since the year 1950-51. He has been running a school over there. To the same effect is the statement of DW2 Shyam Narain. None of them was in a position to state the exact date and month as to since when the appellants are in occupation over the disputed property. Furthermore, their statements are contradictory and inconsistent with the statement of DW10 Smt. Harbans Kaur who states that she Along with her family members has been in occupation over the disputed property since the year 1947.
(19) DW4 Bansi Lal has asserted that Shri Harnam Singh purchased G.E.C. sheets on October 6,1956. The cash memo was issued in connection therewith is Ex.D1. However, on being asked as to where the said G.E.C. sheets were used, he pretended his ignorance. Thus his statement is of no avail to the appellants. Besides that Ex.DI was not proved in accordance with law inasmuch as he was not in a position to state as to who signed and prepared the cash memo Ex.D1.
(20) DW5 Kasturi Lal is an employee of Vohra Timber Store wherefrom Shri Harnam Singh Sethi is alleged to have purchased timber vide Ex.D2 and Ex.D3. On being cross-examined, he admitted that he never went to the spot. Thus I feel his statement is not of much help to the appellants inasmuch as it cannot be said as to where the said timber was used.
(21) Gauri Shankar, DW6 is a Record Keeper of the House Tax Department. DW7, on the other hand, is Murari Lal from the House Tax Department. DW9 Ram Pal is again a clerk from the office of the Municipal Corporation of Delhi, House Tax Department. All of them produced record of the Municipal Corporation of Delhi at the instance of the appellants in order to substantiate the defense version of the appellants.
(22) They have got no personal knowledge with regard to the facts of the present case. Furthermore, the mere oral evidence is not sufficient enough to substantiate the claim of adverse possession by a party. The party who pleads adverse possession must show something more than that. I am supported in my above view by the observations as reported in Gajadhar Prasad and others v. Mst.Dalhin Gulab Kuer and others A.I.R.1921 Patna 234 that no Court should take the plea of acquisition of title by adverse possession casually and no importance should be attached to the evidence of witnesses who simply deposed that the land was in possession of somebody or other. Burden of proving adverse possession is a very heavy one.
(23) EXTS. DW9/1 to Ex.DW9/33 are the house tax bills and receipts. 'They are for the period from 1956 onwards. Ex.DW7/l is a copy of the R.R. for the year 1957. The said receipts go to show that Shri H.S.Sethi deceased has been paying the house tax in respect of the disputed property since 1956. It has thus been vehemently argued by Mr.Sistani that the factum of the payment of the house tax in respect of the disputed property goes a long way to show and prove that the appellants were in occupation over the disputed property in their own right as an owner thereof and their title is adverse to that of the real owner and has thus matured into a claim by adverse possession. The contention of the learned counsel, I feel, is .pill" devoid of any force. Admittedly, the suit in the instant case was instituted on April 2,1968. The oldest document in connection therewith is a notice under Section 65 of the Punjab Municipal Act dated November 13,1956. Thus the statutory period of 12 years if computed from the said date would come to November 13,1968. I have already observed above that the suit was instituted on April 2,1968. Thus the suit is within time and the said documents are of no avail to the appellants.
(24) Furthermore, a close scrutiny of the said documents reveals that there is a mention in a number of documents alluded to above that Shri H.S.Sethi, Head Master of the School is the owner of the super- structures only.( vide Ex.DW9/l dated December 29,1958). Ex.DW9/2 is a notice under Section 65 of the Punjab Municipal Act dated November 13,1956 addressed to the Head Master, Ashoka High School i.e. the deceased defendant who alleged himself to be the Head Master. He has again been shown therein as owner of the super-structures. To the same effect are Ex.DW9/3, Ex.DW9/6, Ex.DW9/8, Ex.DW9/10, Ex.DW9/12, Ex.DW9/14, Ex.DW9/16, Ex.DW9/19, Ex.DW9/21 and Ex.DW9/33. It is manifest from above that what Shri Harnam Singh Sethi, defendant was claiming was the ownership of the super- structures which he is alleged to have raised over the disputed property and not the ownership of the plot whereon the said super-structures stood. The said documents are very much relevant and material inasmuch as the appellants have themselves filed the same. Thus they are very much bound by the same. The said documents, this Court feels, instead of substantiating the case of the ap- pellants cut at the very root of their defense version. Thus I am of the view that the necessary animus to claim adversely to the true owner was utterly lacking. Thus the requisite condition that the possession in question must be hostile to the true owner is not there.
(25) Moreover, the mere fact that the appellants were paying the house tax does not lead us any where. Whosoever is in occupation of a house is liable to pay house tax and water tax. It thus cannot be inferred there from that the possessor/occupier of a house is claiming adversely to the true owner. The above view was given vent to by the observations of a Division Bench as reported in Suraj Bali v. 'Lala Mahadeo Prasad, A.I.R. 1932 Oudh 46 ......" Every occupier of a house is liable to pay water and house taxes. The payment of these by person pleading adverse possession is not irreconcilable with the plaintiff's ownership of property in a suit for possession".
(26) The appellants have placed on record school registers vide Ex.DX1 to Ex.DX21. DW8 Shri Ajab Singh has deposed to the fact that the said registers pertain to the Ashoka High School. Same were being maintained by Harnam Singh Sethi and subsequently by him. The learned counsel on the basis of the said registers has contended that the said registers are a conclusive proof of the fact that the school was being run on the disputed property in a building and the appellants are in occupation of the disputed property. The contention of the learned counsel I feel is of no assistance to the appellants inasmuch as there is no mention of the number of the disputed property in the said registers. Thus it cannot be said that the Ashoka High School was in fact being run on the disputed property. Furthermore, a close scrutiny of the said registers reveals that they have not been maintained properly. One register has not been devoted to one class. In fact, every register is meant for every class. A perusal of Ex.DX1 reveals that the names of students of IInd Standard have been given there in besides the names of the students of 1st Standard. The same register also contains the names of the children of K.G. The same is the condition of the other registers also.
(27) IT. has next been contended that the deceased defendant Shri Harnam Singh Sethi raised structures and got built rooms over the disputed property. According to DW10, there are four rooms on the disputed property, one kitchen, one bath room, one shed and an office. She has further stated that the above said property is also being used for residential purposes as well as for running a. school. The learned counsel thus wants to conclude there from that the appellants are in occupation over the same, if not from the year 1947 at least from the year 1950. The contention of the learned counsel is devoid of any force inasmuch the appellants have themselves placed on record a copy of the R.R. for the year 1960-61 which goes to show that till then only temporary wooden sheds were there and not any permanent structure. Moreover, I have already observed above that the raising of the super-structures on the property belonging to someone else would not ipso facto prove the factum of adverse possession. Whosoever raises a structure on a property other than his, does so at his own risk and cost. The said property would become the property of the owner of the land. To the same effect are the observations of a Division Bench as reported in Gurcharan Singh v. Chairman, Delhi improvement Trust, New Delhi.LVl P.L.R. -(1954) 480.. .."If a trespasser puts up a structure on a plot of land belonging to another without the permission of the owner, the structure becomes the property of the owner of the land".
(28) Learned counsel for the respondents Ms. Bharati Patney, on the other hand, has contended that the appellants have been in unauthorised occupation over the disputed property since the year 1962 only. The instant suit was filed in the year 1968. Thus the suit is well within time. She has in support of her contention led me through the electoral rolls for the year 1961 ( vide Ex.P1). A perusal of the same reveals that Shri Harnam Singh Along with his wife is in occupation of house No. 12/4803, Gali Mitra, Roshan Ara Road, Delhi. Ex.P3, according to the learned counsel is also an electoral list pertaining to the year 1961 which shows the names of all the persons who are in occupation over the disputed property. A close scrutiny of the same reveals that neither the name of the deceased Harnam Singh defendant nor of his wife finds a mention therein. Had the appellants been residing in the disputed property at that time their, names would have definitely found a mention in the electoral list of the year 1961 as occupants of the disputed property i.e. 12/4790. The respondents have then placed on record an extract from the house tax assessment list pertaining to the year 1954. A perusal of the same reveals that property bearing No.4790 is a vacant plot and nobody is in occupation of the same. The said documents are very much material and relevant inasmuch as they are ante litem motem. They came into existence much prior to the existence of the suit. Thus it can be safely concluded from above that the disputed property was a vacant plot till 1954. Thus, the constructive possession over the said plot would be deemed to be with the owner of the same.
(29) Admittedly, the plot No. 12/4790 was initially a joint property of the respondents and their other family members and subsequently two suits were filed, namely Suit Nos. 669/59 and 612/59. The said suits were consolidated and a preliminary decree for partition was passed. Sub- sequently a local commissioner was suggest the mode of partition vide Ex.P5. The property was ordered to be auctioned and ultimately an order was passed by this Co.urt on July 17,1968 whereby it was ordered that the sale certificate in respect of the property in suit be issued in favor of the respondents. Thus, it is manifest from above that a litigation was going on the disputed property in between the family members since 1959. Thus the parties to the said suit were agitating their rights over the said property. Hence the respondents would be deemed to be in constructive possession over the said property till the same was occupied by the appellants in an unauthorised manner. PW5 Bhola Nath one of the respondents has deposed that the disputed property was auctioned on January 15,1965. There was no construction at that time on the disputed property except certain temporary huts. There was no permanent structure at that time belonging to the appellants. There is absolutely no reason, whatsoever, to disbelieve him on this point. If the truth with regard to any part of the case of the respondents remained in penumbral region that came to light fully through Ext. DW7/2 which is a document placed on record by the appellants themselves and which goes a long way to prove and show that till the year 1960-61 the disputed property was a plot with wooden sheds thereon. I am thus of the view that the appellants have miserably failed to prove their adverse possession. I am tempted here to cite the illustrious lines oft quoted from Emile Zola in regard to propensity of truth," If you shut up truth and bury it under the ground, it will but grow, and gather to itself such explosive power that the day it bursts it will blow up everything in its way".
(30) This brings me to the cross-objections filed by the respondents. PW5 Bhola Nath has deposed to the fact that the disputed property in case let out would fetch Rs. 20.00 per month. He has not been cross- examined on the said point. Thus his statement goes un-challenged and remains un-controverter. There is no evidence to the contrary led by the appellants. Thus I feel that the respondents are entitled to damages at the rate of Rs. 20.00 per month. The respondents have claimed damages for the period from January 5,1967 to March 27,1968 at the rate of Rs. 20.00 per month to the tune of Rs. 200.00 only. Thus, they are entitled to the same. The respondents would also be entitled to pendente lite and future damages at the rate of Rs. 20.00 per month.
(31) The appeal is dismissed with costs. The cross-objections are allowed. The respondents are held entitled to Rs. 200.00 by way of damages. They would also be entitled to pendente lite and future damages at the rate of Rs. 20.00per month.