Delhi District Court
Vinay Kumar Kapoor vs Jagjit Singh Sawhney on 28 October, 2024
IN THE COURT OF
DISTRICT JUDGE-01 (CENTRAL), THC, DELHI.
RCA No. 65/18
CNR No: DLCT 01-004354-2018.
Shri Vinay Kumar Kapoor
S/o Shri Shiv Dutt Kapoor
R/o: House No. 2454-55
Basti Punjabi
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
S/o Late Kamal Jeet Singh Sawhney
RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 1/31
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
JUDGMENT
1. The present appeal was filed by the appellant (since deceased now represented through his LRs) challenging the order dated 17.03.2018 in CS No 606833/2016 vide which the Ld. Trial Court had decreed the suit.
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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 respective plaintiffs.
3. The plaintiff had filed the suit being CS No. 6833/2016 for recovery of possession, mesne profits/ damages for use and occupation against the defendants on 03.09.2001 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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 3/31 Singh, W/o Ranjit Singh, R/o WZ-22, Plot no. 85, Shyam Nagar ext. Vishnu Garden, New Delhi 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 defendant in order to legitimate his unauthorized occupation of the rooms taken on GPA, filed the suit for injunction bearing CS No. 152/2000 in the Court of Senior Civil Judge, Delhi which was assigned to the court of Sh. G.P Singh, Civil Judge, Delhi inter alia alleging that he has become the adverse owner of the suit property by virtue of his long possession for more than 30 years and is residing with his family members in the suit property. vi. That the plaintiffs have challenged the right of the defendant to seek injunction on the basis of the adverse possession on the various grounds amongst others which are delineated in the following paras wherein the plaintiffs claim to the suit is mentioned as under :-
a) That the plaintiffs claim that the defendant cannot allege and claim adverse possession on the basis of long 30 years which is disputed because from inception of the possession of the RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 4/31 defendant, it was unauthorized and it was not adverse to the true owners of the property.
vii. That the plaintiffs came to know only in the month of May-2000 that the illegal and unauthorized possession of the defendant when the summons of the suit in CS no. 152/2000 were served and thereafter a detailed written statement was filed by the defendants viii. That in order to legitimate his unauthorized occupation of the property, the defendant in pursuance to the notice under Section 126 of the DMC Act enhancing the rateable value from Rs. 1090/- to Rs. 26,000/- w.e.f 01.04.1986 due to the addition of interim floor, first floor and terrace floor, appeared on his own and agreed and requested the Assessor and Collector, MCD to fix the rate able value on merits and he admitted the accommodation including the unauthorized construction as shown in the assessment order dated 10.01.1997. ix. That the plaintiffs stated that this act of the defendant in getting the house tax voluntarily fixed was done with the singular object of legitimizing his illegal possession on the ground floor and in respect of the unauthorized construction done at the interim floor, first floor and terrace floor which legally he was not authorized to do so. x. That the sales through GPA which are not even registered documents could not be effected legally in as much as the persons executing the GPA had no authority over the property in respect of which these were executed consequently the entire transaction is a sham, illegal and void which have not legal sanctity and do not convey any title in favour of the defendant.
RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 5/31 xi. That the plaintiffs state that the defendant cannot hold this property against the true owners and his continued occupation over 30 years and that he does not legitimate his rights to be in possession of the suit property and that his possession has to be shown hostile to the true owners till the date of filing of the suit for injunction. xii. That the defendant has made a wrong claim of over 30 years in the said suit because of the ration card issued to the defendant in 1997 therefore computing the present age of 44 years plus 3 years, the defendant cannot became the owner by adverse possession at the time of 17 years as against the true owners.
Xiii. That the plaintiffs thus sent a notice dated 14.07.2000 to the defendant thereby calling upon him to restore the possession in respect of the site plan which shows two rooms, verandah, bath, latrine, kitchen on the first floor of the suit property and that the defendants are enjoying the fruits of the portion under his occupation as an unauthorized occupant and trespasser therefore he is liable to pay damages for use and occupation to the true owners i.e. the plaintiffs from the date of the service of the summons of the suit in CS No. 152/2000.
xiv. That the plaintiffs moderately assessed the damages at Rs. 2000 per month in respect of the portion under the occupation of defendant from May, 2000 when the notice of the suit for injunction was served upon the plaintiffs when they came to know about the unauthorized occupation of the defendant and thus the present suit was filed by the plaintiffs seeking following reliefs :-
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a) a decree for possession in respect of the portion shown in red colour in the site plan annexed with the plaint forming part of property no. 2454-55, Basti Punjabian, Subzi Mandi, Delhi.
b) a decree for damages for use and occupation from May-2000 to November-2000 at the rate of Rs. 2000/- per month.
c) to pass a decree for permanent injunction inter alia restraining the defendant not to part with the possession or to create any third party interest in respect of the portion in his occupation till the final disposal of the suit.
d) to award the costs of the proceedings.
e) any other relief or such other relief to which the plaintiffs are entitled may also be granted.
AMENDED WRITTEN STATEMENT
4. The defendant filed its written statement before the Ld. Trial Court challenging the suit of the plaintiff on the ground that the present suit is not maintainable as the same is without any cause of action and is liable to be dismissed u/o 7 Rule 11 CPC and that the plaintiffs purchased the suit property by way of two registered sale deeds dated 18.11.1972 and 16.11.1972 and the suit property came to the share of the plaintiffs after a partition.
5. The defendant further stated that he as well as his LRs came into possession after the same has been parted out by the original tenant as per the Assessment record of the MCD of the year-1986 and that the predecessor-in-interest of the defendant had purchased the suit property therefore there exists a relationship of landlord and tenant and in view of the provisions of Sec. 14(1) (b) of the DRC Act read with Sec.50 of the DRC Act.
6. On Merits, it has been submitted that the plaintiffs have no rights to challenge the ownership or the possession of the defendant in the suit RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 7/31 premises and that the defendant is in possession of the suit property for the last more than thirty years.
7. It has been further been denied that the defendant in order to legitimate his unauthorized occupation, has filed the suit pending in the Court of Sh. G.P Singh, CJ, Delhi and that the defendant has become the owner of the property because of his uninterrupted long adverse possession in the suit premises.
AMENDED REPLICATION
8. A replication was filed by the plaintiff/respondent reiterated the averments mentioned in the plaint and denied those of the written statement.
9. On the basis of the aforesaid pleadings, the following issues/additional issues were framed by the Ld Trial Court :-
1. Whether the suit of the plaintiff is not valued properly for the purpose of court fee and jurisdiction? OPD
2. Whether the plaintiff is entitled to mesne profit/damages?If so, at what rate and to what amount? OPP
3. Whether the plaintiff is entitled to recovery of possession? OPP
10. Issues were again framed on 27.11.2003 and aforesaid issues were reiterated with one new issue i.e. 4. Whether the suit is barred by law of limitation? OPD
11. After amendment of pleadings, additional issues were framed on 14.08.2013 which are as under :-
5. Whether the suit is barred by Section 50 of the DRC Act? OPD
6. Whether the suit is barred by Section 41(h) of Specific relief Act?
OPD RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 8/31
7. Relief.
PLAINTIFF'S EVIDENCE
12. Plaintiff, in order to prove his case examined one Sh. Naresh Kumar Parashar, UDC from the office of Sub-Registrar I, Kashmere Gate, Delhi as PW-1 who brought the sale certificate and stated that he do not know the property number however the registration number is 51 in Book No. 1, Vol No. 206, page 133 dated 23.11.1972. The certified copy of the sale certificate is Ex. PW1/A and Ex. PW1/B and that he also brought 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 and the certified copy of the same is Ex. PW1/C.
13. Plaintiff examined Sh. N.K Maurya, Record Keeper, House Tax Department, Civil Lines Zone, MCD, Delhi as PW-2 and exhibited the true copy of mutation letter dated 17.09.1993 as Ex. PW2/A.
14. Plaintiff examined one Mr. Sanjeev Kumar, UDC, A&C, Civil Lines Zone as PW-3 who deposed that certified copy of Survey report Ex. PW3/1 is issued by his office and the original of the same is in his record. He had also seen the record relating to earlier Survey Report regarding fixing of the house tax at the annual value of Rs. 650/- and the certified copy of the survey report Ex. PW3/2 was issued from his office.
15. 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.
16. Plaintiff again examined Mr. N.K Maurya as PW-4 who brought the original record pertaining to property no. 2452-56, Basti Punjabian, Subzi RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 9/31 Mandi, Delhi-110007 and had seen the photocopies of the attested true copies of the survey reports bearing no. 35210, 35211, 35212, 35213 and he brought the original of the same in the summoned file brought by him. He exhibited the survey report no. 35210 to 35213 as Ex. PW4/1 to Ex. PW4/4 and the attested true copy of the mutation certificate as Ex. PW4/5.
17. After recording of evidence upto PW-4 vide order dated 05.11.2012, the court ordered that the sales certificate dated 18.11.1972 shall be read as Ex. PW1/A, sales certificate dated 16.11.1972 shall be read as Ex. PW1/B and the partition deed dated 01.02.1982 shall be read as Ex. PW1/C. The mutation certificate dated 17.09.1993 shall be read as Ex. PW4/5 instead of Ex. PW2/A. Smt. Neeta Sawhney shall be read as PW-5 and she will file her fresh affidavit incorporating the exhibit numbers in her affidavit in terms of present order.
18. Plaintiff no. 2 Neeta Sawhney again examined herself as PW-5 and tendered her evidence by way of affidavit Ex. PW5/A and she relied upon the documents Ex. PW1/A, Ex. PW1/B and Ex. PW1/C and the documents Ex. PW4/1 to Ex. PW4/5.
19. Plaintiffs examined Suresh Kumar as PW-6 who proved the site plan ex. PW6/1.
DEFENDANT'S EVIDENCE
20. Defendant examined himself as DW-1 who tendered her evidence by way of affidavit Ex. DW1/A and he relied upon the following documents :-
MARK A i.e. GPA dated 21.03.1985.
MARK B i.e. GPA dated 12.03.1987.
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21. Vide Order/Judgment dated 17.03.2018, the learned Civil Judge held that the Defendant had failed to establish adverse possession or landlord tenant subsisting between the Plaintiff and Defendant and further held the Plaintiffs to be entitled to a decree of possession since the Plaintiffs in the suit were able not only to prove their ownership based upon the Registered Sale certificates (Ex PB 1/B) but also the partition deed (EX PW1/C) whereby the suit property ( property No XII/2452-256) came to the share of Sh Gurcharan Singh and Sh Jagjit Singh. The Learned Civil Judge while returning finding on issue No 4 further held that the Defendant had failed to prove his plea of having become the owner by virtue of adverse possession or the Plaintiffs knowledge of the possession of the Defendant having become adverse to the Plaintiffs for a period longer than 12 years who on the other hand held that the Plaintiff was able to establish the knowledge gained by the Plaintiff from the survey report which survey report was not disputed by the Defendant. It was accordingly held by the Learned Civil Judge that the Defendant had failed to prove that the suit as filed by the Plaintiff was beyond the period of limitation. The Learned Civil Judge while returning finding on issue No 5 held that the Defendant had failed to establish his defence of his having become the tenant under the Plaintiffs since the Defendant failed to establish his plea that he stepped into the shoes of the original tenant since none of the two GPAs could be proved on record and none of the GPAs were executed by the alleged earlier tenants of the earlier owner of the suit property. It was accordingly held that since the Defendant had failed to prove the fact of his acquiring tenancy rights under any of the previous tenants under the previous owner hence the suit was RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 11/31 maintainable before the civil court and would not be barred due to the applicability of section 50 of the Delhi Rent Control Act, 1950.
22. 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 exclu- sive owner thereof without any interference from any court.
(b) That the Ld Trial Court failed to appreciate the import of Section 27 of the In-
dian 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 extin- guished.
(c) That the Ld Trial Court returned erroneous findings on issue no 5 and has failed to appreciate 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
23. 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 by way of his remaining in adverse possession and also that the Respondent herein since was aware of the possession of the Appellants since the year 1982 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 since it was filed after a period 22 years from the date of subletting, parting with possession or assigning in favour of the predecessor in interest of the Appellant and thereafter to the Appellant. It was further argued that the suit as filed by the RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 12/31 Plaintiffs was not maintainable in view of section 50 of the Delhi Rent Control act since the Defendants/ Appellant herein stepped into the shoes of the original tenant after having purchased the same from the predecessor in interest of the Defendants.
Arguments by the Respondent/Plaintiff
24. 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 has further been submitted that the defendant had at no place in his entire defence has claimed any tenancy rights over the suit property who always has 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. It is thus argued that neither Section 27 of the Indian Limitation Act nor Section 50 of the Delhi Rent Control Act has any application in the present appeal and the Ld. Civil Judge has rightly decreed the present suit.
25. 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 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:
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26. 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 to the effect 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.)
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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 14/31 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.)"
27. In Brijesh Kumar & Anr. v. Shardabai (Dead) by Legal Representa- tives & Ors., (2019) 9 SCC 369 the Court held as under:
"13. Adverse possession is hostile possession by assertion of a hostile 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 peace- ful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of his possession, the factum of possession known and hostile to the other parties, RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 15/31 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 respondent 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 ingredi- ent 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 possession is required to establish the date on which he came in possession, nature of possession, the fac- tum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities 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 nec- essary 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."
28. In Kurella Naga Druva Vudaya Bhaskara Rao vs. Galla Jani Kamma; Civil Appeal No. 4788/2008, the payment of tax receipts and mere posses- sion 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 ad- verse possession by being in open, continuous and hostile posses- sion of the suit property from 1957. He also produced some tax re- ceipts 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, RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 16/31 both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defen- dant, 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 possession was also hostile to the title and possession of the true owner. After detailed analysis of the oral and documentary evi- dence, the trial court and the High Court also held that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession."
29. 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 pos- session (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 claiming adverse possession came into possession, and (d) it must be established that the possession was open and undistrubed and the wrongful continuous possession 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."
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30. In Annasaheb Bapu Saheb Patil Vs Balwant AIR 1995 SC 895, it was held that Article 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 asser- tion 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 affirma- tively. 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 as- certained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and un- equivocal 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 an- other'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 en- ters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.
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31. 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 the right of ownership arises to the plaintiff but commences from the date defendants possession became adverse.
32. In Vasantiben Prahladji Nayak and Others and Others vs. Somnath Muljibhai Nayak and Others (2004) 3 SCC 376] '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. [See Md. Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1 SCC 271, para 21].
33. 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 impor- tant 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 con- tinued, 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 adverse pos- session."
34. 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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 19/31 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 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. 152/2000 in the Court of Senior Civil Judge, inter alia alleging that the Defendant has become the owner of the suit property by adverse possession on the basis of his long possession for more than 30 years.
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. 152/2000 were served upon the Plaintiffs.
iii. On coming to know about the illegal and unauthorised possession of the Defendant thereafter the plaintiffs sent a notice dated 14.07.2000 to the defendant thereby calling upon him to restore the possession of the suit property.
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35. 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 no other person except the Defendant has any right, title and interest over the suit property. c. The Plaintiffs have no right to challenge the possession or the ownership of the Defendant as the Defendant has become the owner of the premises because of his uninterrupted, continuous and adverse possession for the last more than 30 years.
d. The Plaintiff has no cause of action and the suit of the Plaintiff is hit by section 50 of the Delhi Rent Control Act .
36. On the aspect of ownership of the Plaintiffs, it was held by the Learned civil judge that the Plaintiffs were able to prove the Registered Sale Certificate whereby the Plaintiffs were able to prove the factum of the purchase of property bearing No XII/2452-56 ( new) Roshanara Road Subzi Mandi, Delhi by Sh Jagdish Rai and Sh Parvesh Kumar ( Half Share) and M/s Dharam Singh Ram Singh (half Share). It was further held that the Plaintiffs were also able to prove the partition deed whereby property bearing No XII/2452-56 ( new) came to the share of Sh Gurcharan Singh and Sh Jagjit Singh.
37. As per the defense raised by the Defendant, the entire thrust of the arguments was on the aspect that the Defendant has become the owner of RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 21/31 the suit property since the Defendant is in the possession of the suit premises for the last more than 30 years by way of adverse possession.
38. The appellant/defendants who have taken the defence in the written statement to the effect that they have become the owner of the suit property by way of adverse possession have not disclosed in the entire written statement as to how their possession became adverse to the plaintiff. The defendants only in the evidence of DW-1 have deposed that the alleged co-owners of the plaintiff i.e Sh Jagdish Rai and Pravesh Kumar Mehta had given a notice to another occupant Sh Gurbachan Singh their their Advocate Sh S N Grover to demonstrate the knowledge with respect to the possession of the defendant by the plaintiff.
39. DW-1 in his cross examination has clearly admitted the fact that he is not aware about the notice issued by the alleged co-owners to the defendant. Accordingly since the defendant who have clearly failed to plead in their written statement as to how and when the possession of the defendant became adverse to the plaintiff and also the fact that the plaintiff had knowledge about the adverse possession of the defendant for the past 12 years or more. The plaintiff on the other hand duly proved the status of the survey record as conducted by the MCD when the properly was under the rehabilitation department thereby proving on record the fact that the name of the defendant was not shown therein as one of the tenant 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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 22/31 defendant against the plaintiff in the year 2000. The Court of Learned Civil Judge while returning a finding on issue No 4 i.e as to whether the suit being barred by the period of limitation held that the Defendant failed to plead and prove as to how the possession of the appellant/defendant became adverse to the knowledge of the plaintiff. 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.
40. 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.
41. 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.
RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 23/31 The pleading of the Defendant in his written statement is completely silent on this aspect. Accordingly, 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 in the present suit the provisions of Section 27 of the Limitation Act is without merit since 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.
42. 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. Since the defendants were unable to demonstrate holding of the possession hostile to the real owner and also the RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 24/31 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 mis placed 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. 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 to be within the period of limitation cannot be said to suffer from any infirmity.
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43. Another plea has been raised by the Ld counsel for the appellant to the effect that while deciding issue no 5 no finding have 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. 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 unauthorized 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 unauthorized 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 taken a preliminary objection that as per the suit filed by the plaintiff there exists a relationship of landlord and tenant between the plaintiff and the defendant/appellant as the original defendant was handed over the possession by the original tenant as per the assessment record of the MCD in the year 1986 to the predecessor in interest of the defendants from whom the Defendant had purchased the suit property. 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 and adverse possession for the last 30 years. Even in the Examination in Chief of DW-1, the Defendant had claimed to have purchased the suit property and have denied the ownership of the Plaintiffs. 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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 26/31 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 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.
44. The Ld Trial Court while returning the finding on issue no 5, of which onus was on the defendant to prove, has clearly held that the defendant has failed to prove the fact that the possession of the suit premises was handed over to the defendant from the alleged tenants of the earlier owner of the suit property vide the two GPA's. As per the Ld Civil Judge the two GPA's were executed by one Sh Surender Singh and another by one Sh Paramjit Kaur and in neither of the GPA's the name of the original tenants under the Ministry of Rehabilitation has been mentioned and there is no connection of the aforesaid GPA's to the original tenants of the erstwhile owner of the suit property. It was accordingly held that the defendant/appellant herein since had failed to prove the fact that the defendant succeeded to the tenancy rights under the two GPA's allegedly executed by persons who had no connection with the original tenants or the sub tenants under the erstwhile owner of the suit property. Accordingly, it was held that Section 50 of the Delhi Rent Control Act had no application to the facts and circumstances of the present suit.
45. Besides the aforesaid, the plea of the suit being barred under Section 50 of th Delhi Rent Control Act, 1958 is 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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 27/31 a title in himself by adverse possession. 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 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."
46. 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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 28/31 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.
47. 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 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;'
48. 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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 29/31 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 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.
49. 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.
50. 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.
51. 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 RCA No 65/18 Vinay Kumar Kapoor Vs Jagjit Singh Sawhney Page no 30/31 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.
52. 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 also is without any merit.
53. Accordingly, the present appeal being devoid of any merits is hereby dismissed.
54. TCR be sent back along with the copy of the order.
55. Appeal file be consigned to record room.
Announced in the open court (Sachin Sood)
on 28.10.2024. DJ-01 (Central)
THC, Delhi.
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