Delhi District Court
Presiding Officer: Mr. Rupinder Singh ... vs ) Sh. Noor Mohammed on 17 September, 2020
IN THE COURT OF CIVIL JUDGE-06, (CENTRAL), TIS HAZARI COURTS,
DELHI
DATE OF INSTT: 26.10.2015
CIS NO. : 600274/2016
CNR NO. : DLCT03-003124-2015
DATE OF DECISION : 17.09.2020
PRESIDING OFFICER: Mr. RUPINDER SINGH DHIMAN
Sh. Mujahiduddin Bashi,
S/o Late Sh. Ghaziuddin Bashi,
R/o H.No. 1564, Gali Chhoti Peepal Wali,
Pahari Bhojla Chitli Qabar, Jama Masjid,
Delhi - 110006. .......Plaintiff.
Versus
1) Sh. Noor Mohammed,
S/o Sh. Nazar Mohammed.
2) Mst. Shagufta Begum,
W/o Sh. Noor Mohammed ,
Both r/o H.No. 1564, Gali Chhoti Peepal Wali,
Pahari Bhojla Chitli Qabar, Jama Masjid,
Delhi - 110006.
Also at: H.No. 837, Gali No. 30/4,
Near Mohammadi Masjid,
Indra Chowk, Jaffrabad,
Seelampur, Delhi - 110053. .........Defendants.
Argued:
(1) Sh. Shoaib, counsel for plaintiff.
(2) Sh. R.K. Singh, counsel for defendants.
CNR No. DLCT03-003124-2015 1of19
SUIT FOR RECOVERY OF POSSESSION/MESNE PROFITS/DAMAGES AND
PERMANENT INJUNCTION.
JUDGMENT:
1. Present suit has been filed by the plaintiff against the defendants for recovery of possession of portion of property bearing no. 1564, Gali Chhoti peepal Wali, Pahari Bhojla, Chitli Qabar, Jama Masjid Delhi 110006. (Suit property) with the averments that :
" Plaintiff is the absolute owner of the suit property. Plaintiff purchased the suit property in public auction from his own self acquired income. The suit property was previously a custodian property and prior to purchase of the suit property by the plaintiff, plaintiff and predecessors of defendant were residing in the suit property. Plaintiff permitted his sister Firdaus Jahan Begum and her son i.e. defendant no.1 after her divorce to reside in the suit property. However, after the death of Firdaus Jahan Begum, defendant no.1 acquired property bearing no. 837, Gali No. 30/4, near Mohammadi Masjid, Indira Chowk, Zafrabad, Seelam Pur, Delhi - 110053. Thereafter, plaintiff requested defendant no.1 to vacate the suit property as he had acquired sufficient accommodation. But defendant no.1 for one reason or the other lingered the matter. Hence plaintiff is constrained to file the suit for recovery of possession, mesne profits, damages and permanent injunction, against the defendants."
2. On notice defendants appeared and filed their written statement wherein they denied the allegations of the plaintiff. In the written statement they averred that "Plaintiff has no right, title or interest in the suit property. Defendant no.1 has been residing in the suit property since his birth 13.08.1966 and defendant no.2 has been residing in the suit property after her marriage i.e. 11.03.2007. Defendant no.1 is in use, occupation and possession of the premises in his own right and therefore, the question of permission of plaintiff does not arise at all. Further the said use, occupation and possession qua the premises in question is absolutely uninterrupted, continuous and hostile for more than of 12 years. Defendant no.1 is therefore, the owner of the part of the suit property in his occupation by virtue of law of adverse possession. Hence, it is prayed that the suit may be dismissed."
3. Thereafter replication to the written statement was filed by the plaintiff wherein CNR No. DLCT03-003124-2015 2of19 he denied the allegations of the defendant.
4. Based on the preliminary objections raised following issues were framed as preliminary 29.02.2016:
Issues a. Whether the present suit is barred by U/o 2 Rule 2 CPC? OPD. b. Whether the present suit is liable to U/o 7 Rule 11 CPC? OPD.
5. The aforesaid issues were decided against the defendant vide order dated 20.05.2016. It was held by the Ld. Predecessor of this Court that since the earlier suit was not disposed off on merits and was simply withdrawn by the plaintiff, bar of Order II Rule 2 CPC would not apply. Further second objection was also rejected on the ground that in view of the section 17(2)(12) of the Indian Registration Act 1908, any certificate of sale granted to the purchaser of any property sold by public auction, by a Civil or Revenue officer is not compulsorily registrable.
6. Thereafter, on the basis of pleadings of the parties, following issues were framed on 05.09.2016:
Issues I. Whether the suit of the plaintiff is without any cause of action?
OPD.
II. Whether the plaintiff has no locus standi to file the present suit?
OPD.
III. Whether the suit is barred under law of limitation? OPD. IV. Whether the suit property is properly valued for the purpose of Court Fee and jurisdiction? OPD.
V. Whether the plaintiff is the owner of the suit property? OPP. VI. Whether plaintiff is entitled for the relief of possession? OPP.
CNR No. DLCT03-003124-2015 3of19 VII. Whether the plaintiff is entitled for mesne profit/damages? OPP. VIII. Relief.
7. Matter was thereafter, fixed for plaintiff's evidence (hereinafter referred to as PE). In PE, plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit Ex. PW-1/1 wherein he reiterated the averments of the plaints. The same are not repeated herein for the sake of brevity. In addition, he relied upon the following documents: -
Ex. PW-1/A : Certificate of sale in favour of plaintiff. Ex. PW-1/B : Certificate of sale registered with Sub-Registrar.
Ex. PW-1/C : House Tax Receipt.
Ex. PW-1/D : House Tax Receipt.
Ex. PW-1/E : House Tax Receipt.
Ex. PW-1/F : Site Plan.
Ex. PW-1/G : Legal Notice.
Ex. PW-1/H : Reply of notice.
Ex. PW-1/I : Suit for possession filed by the plaintiff.
Ex. PW-1/J : Plaint.
Mark A : Certified True Copy of certificate of sale.
Plaintiff was duly cross examined by counsel for plaintiff. In his cross- examination plaintiff stated that the original of Ex.PW1/A does not bears signatures of any person. He also admitted that the document Ex.PW1/B not signed. He also stated that he got the suit property mutated in him in the record of MCD but was unable to recall the time. Further, in his cross examination he could remember whether the property was purchased from Custodian of Evacuee Property or Custodian of Enemy Property but he did state that the property was purchased the property from custodian whose office at that time was at Jaislamer House, New Delhi. He further deposed that at the time of purchase of the property in question, he CNR No. DLCT03-003124-2015 4of19 paid the initial amount of final auction at the rate of 7% which amounted to Rs. 399/- but could not produce the receipt of Rs. 399/-. He also admitted that prior to notice dated 19.08.2015, he had not sent any legal notice. He denied the suggestion that that Ex.PW1/A was forged and fabricated by me in order to claim the ownership of property no. 1564, Pahari Bhojla, Delhi. With respect to source of funds for purchasing the property he stated that he had garnered around Rs. 4,000/- by savings from his own earning and took a loan of Rs. 1,700/- from his friend Md. Azhar, R/o 1168, Mahal Sarai, Churiwalan, Matiya Mahal, Delhi. He conceded that his father bore all family expenses and in the year 1961, the family was joint. During cross- examination, Plaintiff was also shown the site plan filed by the defendant which was marked as Ex.PW1/D-1. After glancing to the site plan filed, he submitted that it correctly shows the area/portion under the occupation the defendant though the Dalan depicted in the site plan marked Ex.PW1/D-1 is equally shared (50:50) by the defendant and him. He also could not the exact date or year when he had first permitted the defendant to stay in the suit property as a licensee though he denied that the defendant has been living in the suit property since his birth. He further denied the suggestion that the suit property had been purchased by his father.
8. With respect to damages and mesne profits, he conceded that he had placed on record any document to show as to what would be the present monthly rental for the suit property. He did not admit or deny whether the suit property would gather monthly rental of Rs. 150/- per month if let out at present. He denied the suggestion that the defendants are living in the suit property as they have an independent right in the same.
9. Further plaintiff examined Sh. Shyam Sunder from House Tax Department as PW-2 to prove the property tax receipts of the suit property paid by the plaintiff. Same were exhibited as Ex. PW-2/1 Colly. Plaintiff also summoned certificate of CNR No. DLCT03-003124-2015 5of19 sale and copy of challan of the suit property from the Land and Building Department to prove his purchase of the suit property in public auction and payment of purchase price. Same were exhibited as Ex. PW-3/1 and Ex. PW-3/2. Plaintiff also summoned sale certificate from the department of archives to prove the validity of his title and it was again exhibited as Ex. PW-5/1. Thereafter, plaintiff closed its evidence on 13.03.2018 and matter was then fixed for evidence of defendants (hereinafter referred to as DE).
10. In DE, defendant no.1 examined himself as DW-1 and tendered his evidence by way of affidavit Ex. DW-1/A wherein he reiterated the averments made in the written statement, therefore, the same are not repeated herein for the sake of brevity. In addition, he relied upon the following documents:
Ex. DW-1/1 : Site Plan.
Ex. DW-1/2 : Copy of birth certificate.
(de-exhibited and
marked as Mark A).
Ex. DW-1/3 (OSR) : Nikahnama.
Ex. DW-1/4 (OSR) : i.e. copy of passbook of SBI.
Ex. DW-1/5 (OSR) : Copy of Pass Book of Bombay Mercentile
Bank Ltd.
Ex. DW-1/6 (OSR) : Copy of passport bearing no. 4810932 and R-
Colly. 737586.
Ex. DW-1/7 (OSR) : Copy of envelope sent by regional passport
office Bhikaji Cama Place, New Delhi.
Ex. DW-1/8 (OSR) : Copy of speed post envelope sent from the
office of Food and Civil Supply, Minto Road,
New Delhi.
Mark B : Copy of passport issued on 06.09.1984 in the
name of defendant no.1.
CNR No. DLCT03-003124-2015 6of19
Ex. DW-1/9 : Copy of election ID Card of defendant no.2.
de-exhibited & marked
Mark C
Ex. DW-1/10 (OSR) : Election ID card of defendant no.1.
Ex. DW-1/11 (OSR) : Copy of aadhar card of defendant no.1.
Ex. DW-1/12 (OSR) : Copy of aadhar card of Abdul Samad (minor
son).
Ex. DW-1/13 A (OSR) : Copy of aadhar card in the name of baby Falak
Noor.
Ex. DW-1/14 (OSR) : Copy of ration card issued in the name of
defendant no.1 on 04.12.2012.
Ex. DW-1/15 (OSR) : Copy of Indane Gas connection form.
Mark D : Copy of Ration Card in the name of Firdos
Begum.
Mark E : Copy of ration card in the name of Najmuddin
Bashi bearing no. 319486.
Mark F : Copy of ration card in the name of Najmuddin
Bashi bearing no. APL58120512.
He was duly cross examined by counsel for plaintiff. In his cross examination he stated that the property in question was purchased by my mother in the name of the plaintiff and the permission was given by my mother to the plaintiff to reside in suit property and thereafter the property in question transferred in the name of the defendant. Though he conceded that he had not filed any title documents to show his ownership. He admitted that the property no. 837, gali no. 30/4 near Mohammad Masjid, Indira Chowk, Seelampur, Delhi was in the name of my mother and after her death, the property was divided amongst two brothers. However, he stated the said property was presently under his possession since last 4-5 years. He denied receiving any notice from the plaintiff regarding termination of license. He also stated that Plaintiff never asked him either orally or in writing to vacate the suit property.
CNR No. DLCT03-003124-2015 7of19
11. Defendant further examined Sh. Vineet Aphi from the health department MCD as DW-2 to prove the death of Firdaus Jahan and Sh. Rattan Singh from Food and Supply department to prove the ration card bearing old no. APL-58120512 and New No. 077000047675 issued in the name of Shaheen Parveen. They were duly cross examined by the counsel for plaintiff and thereafter defendant closed his evidence on 29.03.2019.
12. Matter was then fixed for final arguments.
13. I have heard the arguments and perused the record and my issue wise findings are as under. Since the crux of the dispute between the parties relates to acquisition of title by prescription, I firstly proceed to decide the issue of ownership of plaintiff.
Issue No.5.
Whether the plaintiff is the owner of the suit property? OPP.
14. The onus to prove this issue was on the plaintiff. For proving his ownership, plaintiff has deposed that he purchased the suit property at the public auction held on 07.01.1961 in pursuance of evacuee interest (Partition Act 1951). Plaintiff relied upon Ex. PW-1/A i.e. copy of the certificate of sale and Ex. PW-1/B description of suit property. Certified true copy of sale was marked as Mark A. However, to discredit his testimony, counsel for defendant relied upon his cross-examination dated 25.02.2017. Ld. Counsel for defendants raised contention that PW-1 has stated in his cross- examination that Ex. PW-1/B was not signed but plaintiff summoned record from Land and Building Department and Department of Archives to prove the Certificate of Sale. PW-3 Sh. Nagender Sah from Land and Building Department produced certificate of sale dated 26.06.1961 and the copy of challan Ex. PW-3/2 showing the payment made by the plaintiff for the purchase of suit property at public auction. The CNR No. DLCT03-003124-2015 8of19 said certificate of sale was corroborated from the record brought by the Department of Delhi Archives i.e. Ex. PW-5/1.
15. It is trite to state that a Civil Case is decided on the balance of probabilities. In every case there may be bare inconsistencies in the deposition of the witnesses. However, the depositions have to be taken as a whole. Minor inconsistencies which do not affect the main substance of case are to be taken in the correct perspective along with other evidences, including documentary evidence which is led in the present case. The inconsistencies which have been pointed out by the Ld. Counsel for defendants not in any manner whittle down the legitimacy of certificate of sale. Given the fact the suit property was purchased about 50 years at auction purchase, it is logical that the plaintiff may not be able to recall the exact particulars of purchase and consideration. Certificate of sale has been corroborated from the records of Department of Land and Building as well as Department of Archives. It is not in dispute that the suit property was purchased in public auction. One of the plea set up during the cross examination of Plaintiff was that consideration for purchase was given by father of the plaintiff. The onus to prove this fact was on defendant as it has been asserted by him. But other than making a bald averment, no evidence was led in this respect. This in conjunction with the fact that the DW1 in his cross examination raised the plea that his mother was the owner of the suit property. But no documents were produced by him to show that she was the owner of the suit property. The contradictions do not end here. DW1 has also taken the plea that he has acquired title to the suit property by prescription as Plaintiff did not take any action within 12 years of purchase of suit property. All these inconsistencies in the testimony of DW1 coupled with the fact that Plaintiff has proved the certificate of sale by corroborating the same with Revenue records clearly show implicit admission of title of the plaintiff by the defendant. Therefore, in the considered opinion of this court, plaintiff has successfully proved that he has purchased the suit property in a public auction on CNR No. DLCT03-003124-2015 9of19 07.01.1961 and is the recorded owner of the suit property.
Accordingly, issue no.5 is decided in favour of plaintiff.
Issue No. I and II.
Whether the suit of the plaintiff is without any cause of action? OPD. Whether the plaintiff has no locus standi to file the present suit? OPD.
16. The onus to prove these issues was on the defendants. However, the defendants did not lead any evidence with respect to these issues nor were these issues pressed during the time of final arguments. It appears that these objections were taken as a matter of routine in the written statement. Bare averments without any proof to substantiate the charges levelled would not disloge the locus standi of the plaintiff to file the present suit nor shall it prove that plaintiff has no cause of action in his favour. Plaintiff has established that is the recorded owner of the suit property. Therefore, the onus on the defendants remained undischarged.
Hence, these two issues are decided against the defendants.
17. Issue No.3 Whether the suit is barred under law of limitation? OPD.
The onus to prove this issue was on the defendant. In the written statement defendant no 1 has taken the plea of adverse possession. He has averred that he been residing in the suit property since his birth in 1966 and his possession has been continued, uninterrupted and hostile to the plaintiff. Therefore, he has become the owner of portion of suit property in his occupation by prescription. Hence, I find it relevant to refer to the law of adverse possession before proceeding further.
18. The concept of adverse possession contemplates a hostile possession i.e. the possession which is expressly or impliedly in denial of the title of the true owner to CNR No. DLCT03-003124-2015 10of19 the knowledge of the true owner and claiming the title as an owner- in- himself by the person claiming to be in adverse possession. The adverse possession must 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. This shows that the possession must be nec vi nec clam nec precario i.e. in continuity, in publicity and in extent.
19. In general, in order to ripen into title for the possessor, adverse possession must be:
a. Continuous; this means continual;
b. Hostile to the interests of the true owner - the "adverse" part of adverse possession;
c. Open and notorious -in order to put the true owner on notice that a trespasser is in possession;
d. Actual - so that the true owner has a cause of action for trespass, on which the true owner must act within the number of years defined by the state;
e. Exclusive- no one else is using the property.
20. To prove adverse possession, a squatter must establish that he has both the physical possession of the land and the required intention to possess it (animus possidendi). In Powell v McFarlan (1977) 38 P & CR 452, Slade LJ said:
"Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus, an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time."
21. It is trite to state that the question of possession by a trespasser is a question of fact, hinging on all circumstances, especially the nature of the land and the manner in which it is usually enjoyed. Exclusive control is essential to establish adverse possession. Apart from showing factual possession, he must also establish the CNR No. DLCT03-003124-2015 11of19 requisite intention i.e. an intention for the time being to possess the land to the exclusion of all other persons, including the owner. The required intention must be determined objectively i.e. the intent has to be inferred from the acts themselves. If the acts are equivocal, he will not be treated as having the requisite animus possidendi. In cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation then those acts will be insufficient to establish the intention to possess.
22. Section 3 of the Limitation Act, 1963 stipulates that a Court will not take cognizance of any suit, which is barred by limitation even if the issue of limitation is not taken as a defense. Thus, the law of limitation ordinarily bars the remedy but not the right. However, section 27 of the Limitation Act, 1963 is an exception to the general principle of law of limitation and it constitutes the bedrock of the concept of adverse possession in India. According to it, if a person fails to file a suit for recovery of possession, within the prescribed period of limitation, his right to recover the possession of that property is also extinguished. If such a situation occurs, a true owner extinguishes not only his remedy but also his ownership right over the property. To acquire prescriptive title, a person must allege open, hostile, notorious uninterrupted possession of a property for 12 years.
23. The purpose of statutes of limitation as well as the legal recognition given to adverse possession, was explained in "Adnam v. Earl of Sandwich" (1877) 2 QBD 485 as under:
"The legitimate object of all Statutes of Limitation is no doubt to quiet long continued possession, but they all rest upon the broad and intelligible principle that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for so long a time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties ..."
CNR No. DLCT03-003124-2015 12of19
24. The plea of adverse possession been raised before the our Apex court too many times and its ingredients are no longer res integra. Hence, I find it relevant to refer to some of the important judgments of the Hon'ble Supreme court in this respect.
25. In "Annasaheb v. B.B.Patil", AIR 1995 SC 895, the Hon'ble Supreme Court of India held that:-
"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."
26. In "Karnataka Board of Wakf v. Govt. of India" (2004)10 SCC 779, it was held by the Hon'ble Supreme Court that: -
"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 part;
(d) How long his possession has continued, and
(e) His possession was open and undisturbed.
A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
27. In "T. Anjanappa & others v. Somalingappa & another" (2006)7 SCC 570, it was held that: -
CNR No. DLCT03-003124-2015 13of19 "It is well recognized 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 formers hostile action."
28. In "Chatti Konati Rao and others v. Palle Venkata Subba Rao" (2010) 14 SCC 316, it was held: -
"In view of the several authorities of this court, few whereof have been referred above, what can safely be said is that were possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter."
29. In "Gurdwara Sahib v. Gram Panchayat Village Sirthala and another", (2014) 1 SCC 669, it was held by the Hon'ble Supreme Court that: -
"There cannot be any quarrel to this extent that the judgments of the courts, below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it CNR No. DLCT03-003124-2015 14of19 can use this adverse possession as a shield/defense."
30. In light of the law of adverse possession discussed herein above, let me examine therefore the evidence led by the respective parties to ascertain whether the plaintiff has lost title over the suit property and the defendants gained title over the same because of adverse possession. Since title is claimed by the defendant on the basis of adverse possession, all presumptions are in favor of the recorded title owner (i.e. the plaintiff herein), and to overcome such presumptions the adverse possessor has the burden of proving each of the elements of adverse possession by strict, clear and unequivocal evidence.
31. DW1 has averred that he been in possession of the portion in the suit property since his birth in 1966. To prove this, he has relied upon copy of his birth certificate, passport and bank passbook etc. However, it is not the possession of the defendant which is in dispute. The crucial question to be decided is the nature of possession and whether it was permissive or hostile. The onus is on the defendant to prove by cogent evidence that his possession was hostile to the plaintiff.
32. Plaintiff has asserted that he permitted his sister and her son i.e. DW1 to reside in the suit property whereas DW 1 has asserted that he resided in the suit property as owner. The documents produced on record by the defendant i.e. birth certificate, passbook, passport, Rashan card, Election card, Aadhar card of his daughter etc. only show possession of the defendant but not the animus that he was holding the property as owner. In his cross examination, he conceded that these are not title documents. The onus to prove the 'animus' was on the defendant but at the very outset, I must state he failed to discharge the said onus. Primary reason for this is that he was equivocal in his stand. On the hand, he claimed that his mother was the owner of the property and after her death, he inherited the property as owner. On the other, he claimed that consideration for purchase of the property was given by grandfather and CNR No. DLCT03-003124-2015 15of19 property was only purchased in the name of the plaintiff. But as discussed in issue no V, plaintiff has clearly established that he is the recorded owner of the suit property. The equivocal pleadings of the defendant necessarily imply that his possession cannot be objectively considered to be open and hostile to the plaintiff. More than one interpretation is possible and therefore, presumptions in favour of plaintiff i.e. recorded owner shall stand. This coupled with his admission in the cross examination that prior to legal notice dated 19.08.2015, plaintiff never asked him to vacate the premises, shows that his possession was permissive and not hostile to the plaintiff. Further support for this finding is lend from the fact that defendant is the nephew of the plaintiff. Therefore, it is not unreasonable to believe that after the divorce of his sister, plaintiff would have permitted his sister and her son i.e. the defendant to reside in the suit property. Hence, taking the totality of circumstances into account, and equivocal pleadings of the defendant, I find that possession of defendant was permissive in nature.
33. It is trite to state that permissive possession cannot be converted into adverse possession, unless some overt acts have been done which would have the effect of denying the title of true owner. This is more so if the possession at inception is permissive. It is not in dispute that defendant came into possession of the suit property through his mother. Though he also pleaded ownership in favour of his mother and claimed to inherit from her but no evidence was brought on record. On the other hand, plaintiff has established his title over the suit property as held in issue no V. No overt act of refusal of title of plaintiff or assertion of his own title till the legal notice dated 19.08.2015 has been either averred or proved by the defendant. The onus was on the defendant to show the overt act denying the title of the plaintiff and the time since when his possession became adverse to the plaintiff. Thus, he miserably failed to discharge the said burden.
34. Therefore, I find that the long possession of defendant did not give ownership CNR No. DLCT03-003124-2015 16of19 rights to the defendant as it was not adverse to the plaintiff. Rather his possession was permissive. Reference in this regard can be also be made to the judgement of Hon'ble apex court in Thakur Kishan Singh v. Arvind Kumar 1994 SCC (6) 591 wherein it was observed that for possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse, it must be established by cogent and convincing evidence that there exists hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.
35. Therefore, if the possession was permissive and not adverse, question of acquisition of title by 'prescription' does not arise at all. Therefore, it cannot be held that suit is barred by limitation. Accordingly, issue no III is decided against the defendant.
Issue No.4.
Whether the suit property is properly valued for the purpose of Court Fee and jurisdiction? OPD.
36. The onus to prove this issue was on the defendant. However, without providing any alternative valuation, the said objection remained as a bald averment. Nor was anything brought on record to substantiate the said claim. The burden was on the defendant to show that the suit has not been properly valued for the purposes of court fees and jurisdiction. Therefore, in the absence of any alternative valuation being provided by the defendant, the issue remained unproved.
Hence the said issue is decided against the defendant.
Issues No. VI and VII Whether plaintiff is entitled for the relief of possession? OPP. Whether the plaintiff is entitled for mesne profit/damages? OPP CNR No. DLCT03-003124-2015 17of19
37. The onus to prove these issues was on the plaintiff. As discussed above, plaintiff has established that he is the recorded owner of the suit property. The plea of adverse possession raised by DW1 has been negated. It is an admitted position that vide legal notice dated 19.08.2015 Ex PW1/G, licence of DW1 was terminated by the plaintiff with effect from 30.09.2015. DW1 in his cross examination has admitted the receipt of the notice and failed to show any right, title or interest in the suit property. Accordingly, defendants became unauthorized occupants of the suit property with effect from 01.10.2015 as permission to stay in the suit property stood revoked. Even otherwise, the onus was on defendant to plead and prove why he must not be ejected once the dispute of title is removed. Reference in this regard can be made to Maria Margardia Sequeria Fernandes v. Erasmno Jack de Sequeria 2012 (3) SCALE 550, wherein the Supreme Court held that the person resisting a claim for recovery of possession or claiming a right to continue in possession has to establish that he has such a right. The observations of the Supreme Court are as under: -
"66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim to continue in possession"
Admittedly, defendant has blown hot and cold and made equivocal pleadings. He failed to explain his entry and the capacity in which he is in possession of the suit property. Therefore, after revocation of permission, possession of the suit property should have been handed over by him to the plaintiff and in default, he became an CNR No. DLCT03-003124-2015 18of19 unauthorized occupant. Hence, the next question for consideration is the determination of mesne profits.
38. Plaintiff has claimed Rs. 9000/- per month as damages for unauthorized use and occupation of the premises. However, other than, his own deposition, no other evidence has been led in this behalf to show that Rs. 9000/- per month is reasonable use and occupation charges of the portion in the possession of the defendant. But judicial notice can be taken of the fact that real estate prices in Delhi have skyrocketed in the recent decades. Therefore, considering the area in occupation of defendants, locality of the suit property and unauthorized use of the same, in the considered opinion of this court Rs. 6000/- per month would meet the ends of justice of the present case.
VIII Relief
39. In the light of aforesaid discussion and findings, suit of the plaintiff stands decreed. Plaintiff is held entitled to the recovery of possession of the portion of the suit property in occupation of the defendants. Costs of the suit are also awarded in favour of plaintiff. Further, plaintiff is held entitled to mesne profits/damages @ Rs. 6000/- per month for unauthorized use and occupation of the premises from 1 October 2015 till the handing over of vacant and peaceful possession.
40. Decree sheet be prepared accordingly. File be consigned to record room after Digitally signed by due compliance. RUPINDER RUPINDER SINGH DHIMAN SINGH DHIMAN Date: 2020.09.21 16:22:31 +05'30' (Rupinder Singh Dhiman) Civil Judge -06 (Central)/THC Delhi/17.09.2020 CNR No. DLCT03-003124-2015 19of19