Delhi District Court
Sh. Vakil Chand vs Saraswati Sahitya Mandir on 30 September, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE01
( WEST), TIS HAZARI COURTS, DELHI
SCJ No. 612478/16/00
Date of Institution: 09.05.2000
Date of reservation 24.09.2016
Date of passing the Judgment 30.09.2016
Sh. Vakil chand
S/o Late Sh. Hansraj
R/o C72, Shivaji Park
New Delhi26.
............Plaintiff
vs.
1. Saraswati Sahitya Mandir
Through Sh. Swami Yogeshwar Videhi Hariji
583584, Madipur ( Shivaji Park)
Rohtak Road
New Delhi.
2. Sh. Tarsem Chand
3. Sh. Makhan Lal
both sons of Late Sh. Hans Raj
R/o C72, Shivji Park New Delhi26.
4. Sh. Deputy Chand
S/o Late Sh. Hans Raj
R/o C72, Shivaji Park
New Delhi
5. Sh. Sahib Chand
S/o Late Sh. Hans Raj
R/o H85/1, Shivaji Park
New Delhi26.
6. Delhi Power Company Limited through its
Principal Office
Regd. Office : ITO, New Delhi
Also at : Defence Colony, Delhi.
.............Defendants
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir
& Vakil Chand vs Delhi Transco Ltd. 37 /37
SCJ No. 607880/16
Date of Institution: 31.08.2001
Date of reservation 24.09.2016
Date of passing the Judgment 30.09.2016
Sh. Vakil chand
S/o Late Sh. Hansraj
R/o C72, Shivaji Park
New Delhi26.
...............Plaintiff
vs.
1. Delhi Transco Ltd.
through its CMD
Having its office at
5th Floor, Shakti Sadan Building
Kotla Road, I.T.O
New Delhi 110002
2. Municipal Corporation of Delhi
Through : Its Commissioner
Town Hall, Chandni Chowk
Delhi110006
3. Saraswati Sahitya Mandir
Through Sh. Swami Yogeshwar Videhi Hariji
583584, Madipur ( Shivaji Park)
Rohtak Road
New Delhi.
.............Defendants
SUITS FOR DECLARATION AND PERMANENT
INJUNCTION
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir
& Vakil Chand vs Delhi Transco Ltd. 37 /37
Judgment
Vide this common judgment, I shall dispose off the above two suits
i.e. SCJ bearing no. 612478/16 and SCJ bearing no. 607850/16 as the facts and
allegations in both the suits are almost similar. For clarity and in order to avoid
any confusion, the parties have been referred in the same manner as they are
mentioned in the memo of parties in suit bearing SCJ no. 612478/16 i.e. Sh.
Vakil Chand as Plaintiff, Saraswati Sahitya Mandir as defendant no.1, Sh.
Tarsem Chand, Sh. Makhan Lal, Sh. Deputy Chand, Sh. Sahib Chand as
defendant 2 to 5 respectively and Delhi Transco Ltd. as defendant no.6, besides
their original names.
BRIEF FACTS OF THE SUITS
Brief facts in case bearing SCJ No. 612478/16
1. As per plaint, plaintiff claims that he and defendant no.2 to 5 (who are his own brothers) have been in possession of one bigha of suit property out of khasra no. 584 situated in the revenue estate of Village Madipur, Delhi (hereinafter referred to as the "suit property)". He and defendant no.2 to 5 came in possession of the suit property in the year 1981 and their names was recorded in revenue records as being in possession from year 1982 onwards.
2. It is further stated that the suit property was owned by defendant no.1, however Government issued a Notification for acquisition of the suit property vide Notification no. F.15 (31) 50MLT dated 30.12.1950 under SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 Section 3 of Resettlement of the Displaced Persons ( Land Acquisition) Act, 1948, and the suit property alongwith other land, was acquired by the Government. The land was acquired for resettlement of displaced persons by the Government for giving it to Refugee Cooperative Housing Society Ltd., which society later on developed into colony known as Punjabi Bagh. Further states that on representation by defendant no.1 for release of land, the Government agreed to release the same and the aforesaid land was denotified and released from acquisition proceedings.
3. Being aggrieved with the order of releasing the suit property from acquisition, the said Refugee Cooperative Housing Society Ltd. filed a Writ Petition No. 44D/53 in the Hon'ble High Court of Punjab & Haryana, Delhi Bench, against the said order. However the said Writ Petition was dismissed by the Hon'ble High Court. During this period, the aforesaid one bigha of land out of the said total land, always remained in actual physical possession of plaintiff and defendant no.2 to 5.
4. Further states that he and defendant no.2 to 5 raised constructions in the suit property from time to time and also got it registered as Singhal & Sons ( India) Pvt. Ltd., 584, Shivaji Park, New Delhi. He (plaintiff) also got the suit property demarcated from revenue authorities, which was carried out on 22.01.1986 i.e. about 14 years ago. In the demarcation, revenue authorities confirmed that plaintiff was in actual, physical possession of one bigha of land in Khasra No. 584 of Village Madipur, Delhi. The suit property is also assessed by Municipal Corporation for property tax in the name of plaintiff.
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
5. Further states that the suit property was recorded in the revenue records in the name of Refugee Cooperative Housing society as owner of the suit property even though the land was later on released from acquisition. Defendant no.1 moved several applications before the said Divisional Magistrate ( Punjabi Bagh) for the correction of the entires in the revenue records with regard to the ownership of the suit property and subsequently vide order dated 08.03.1989, the suit property was again mutated and was shown in the ownership of defendant no.1 in the revenue records. However the said Refugee Cooperative Housing Society Ltd. transferred land measuring 1295 Sq.Yards including the suit property in possession of plaintiff, to Delhi Electric Supply Undertaking later on known as Delhi Vidyut Board vide a registered Sale deed inspite of the fact that the society was left with no right, title and interest, either as owner or in possession of one bigha of the said land.
6. Plaintiff further states that defendant no.1 never raised any objection with regard to the entries of possession in his name. He asserts that his possession alongwith that of defendant no.2 to 5, has been open, overt and hostile against defendant no.1 and all other concerned. Further the possession was adequate, in continuity, in publicity and in extent. Hence on account of open, overt, hostile and continuous possession which is much over 12 years, he (plaintiff) and defendant no.2 to 5 have become owners of the suit property by doctrine of adverse possession. Plaintiff further states that defendant no.2 to 5 have no objection if he alone is declared as the exclusive owner of suit property (now known as 584, Shivaji Park, New Delhi).
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
7. It is further stated that defendant no.1 had started interfering in his peaceful possession and was trying to do all such acts within its power so as to evict him and if required, was willing to take possession even by force.
8. Hence through this suit, plaintiff has prayed that a decree for declaration declaring him as owner of suit property be passed in his favour and against defendant no.1. Further prays that defendant no.1, his agents, employees, etc. be permanently restrained from interfering in his peaceful possession over suit property.
9. Written statement was filed on behalf of defendant no.1 contending that the suit was barred under the provisions of Specific Relief Act and as such plaintiff cannot file a suit for declaration that he should be declared as owner by adverse possession. Further as per the own averments of plaintiff, the suit property stands mutated and shown to be in the ownership of defendant no.1 in the revenue records from March, 1989 onwards and the suit has been filed in the month of May, 2000 i.e. twelve years had not elapsed. The suit was also liable to be dismissed on the ground that the market value of suit property was more than Rs. 10 lacs and beyond pecuniary jurisdiction of the court.
10. Further contends that no cause of action arose in favour of plaintiff in filing the suit against defendant no.1. The plaintiff was in permissive possession of suit property and it is well settled law that permissive possession, cannot by itself become hostile by long lapse of time. Further avers that a person who claims title over a property by adverse possession must prove as to how and when, the adverse possession commenced and what was the nature of SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 possession and whether the fact of adverse possession was known to the real owners. The mere fact that a person is in uninterrupted possession for several years, the same is not enough to raise the plea of adverse possession so as to acquire title. It is also contended that the suit appeared to be collusive between plaintiff and defendant no.2 to 5 who are own men of plaintiff.
11. On merits, it is stated that defendant no.1 is the owner in possession of suit property which is apparently a Muafi land attached to a temple. It is admitted that a notification was issued on 30.12.1950 vide which land including 2 khasra numbers, total measuring 12 bigha 16 Biswas in the area of Village Madipur was acquired by Government. However, the land including the suit property, being a Muafi land attached to a temple, the same were released from acquisition vide fresh notification issued by Government on 02.04.1953. Refugees Cooperative Housing Society Ltd. challenged the order of Land Acquisition Collector and the subsequent notification through a Writ Petition before Punjab & Haryana High Court but the same was ultimately dismissed vide Judgment dated 21.10.1953. Subsequently, Sh. M.M. Swamy Yogeshwar Bedhi Hareji, Saraswati Sahitya Mandir, filed a petition before SubDivisional Magistrate, Punjabi Bagh, for mutation of property and vide Judgment dated 08.03.1989 of Ld. SDM, the suit property was mutated in the name of defendant no.1.
12. It is reiterated that defendant no.1 was the owner of suit property and plaintiff had no legal right, title or interest in the same. The plaintiff, who was in permissive possession of the property, was liable to be removed from SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 the suit property, which he was illegally occupying without any legal right, title or interest. Prayer was made for dismissal of the suit.
13. Defendant no.2 to 5 were proceeded exparte. Written statement was however been filed on behalf of defendant no.6 again reiterating the same averments made in plaint though in detail that vide notification bearing no.F.15 (31) 50 MLT dated 30.12.50, the then Chief Commissioner, Delhi, acquired land measuring 987 bighas 5 biswas in which Khasra no. 583 and 584 of Village Madipur, Delhi Estate was also proposed for acquisition. Thereafter a corrigendum dated 23.03.1953 was issued by CSD, Delhi Administration wherein Khasra no. 583 and 584 appearing in column No.3, was deleted from the acquisition proceedings. Against the said Notification/corrigendum dated 23.03.1953, Refugee Cooperative Housing Society Ltd. filed a civil writ bearing no. 44 D53 but the said civil writ was dismissed by the circuit bench of Hon'ble Punjab & Haryana High Court, Delhi, on 21.10.1953.
14. However further states that the aforesaid Society thereafter preferred an appeal against Order dated 21.10.53 vide LPA No. 107D/1953 and during the course of proceedings in the above LPA, respondent Sh. Bishamber Dayal Mahant Ganga Dass appeared in person alongwith Mr. Jitendra Lal, Advocate on 22.04.1959 and gave a statement that he had no objection to the appellant society acquiring Khasra no. 584 as proposed by Chief Commissioner in the original Notification dated 30.12.1950. In view of the statement given by respondent, the appeal was dismissed as withdrawn by from the Hon'ble Chief Justice, Punjab & Haryana High Court on 22.04.1959.
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
15. Subsequently, after dismissal of above appeal, another Corrigendum dated 02.02.1960 was again issued by the then OSD, Delhi Administration, in which it was clearly mentioned that for the words and figures field no. 583 and 584, only Field No. 583 was to be read and in place of figures 97412, the same was to be read as 98216. After going through the contents of the said corrigendum dated 02.02.1960, it was crystal clear that the acquisition of Khasra no. 584 as proposed in notification dated 30.12.1950 was confirmed and the same was acquired. Thereafter Refugee Cooperative Housing Society Ltd became the owner of suit property measuring 1295 Sq. Yards.
16. Later on, the Society executed a Sale deed on 16.06.1970 in favour of DESU the predecessor of defendant no.6 herein and the same was registered on 13.12.1973. Further the possession of suit property was handed over by the Society to DESU on 31.08.1967 itself and Sh. R.K. Gupta, AE of defendant, took over the possession on behalf of DESU.
17. It was further averred that the suit was not maintainable under Specific Relief Act besides being barred by the provisions of Public Premises Act and the same was liable to be dismissed as the suit property is a Government property. It is further contended that this court does not have jurisdiction to entertain the present suit. Further the plaintiff being an unauthorized encroacher on the Govt. land, had no legal right in respect of the suit property and he was also not in possession of any legal document. It was denied that the plaintiff had any right, title or interest in the suit property. Prayer was made for dismissal of the suit.
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
18. Replication was also filed by the plaintiff wherein the averments made in written statement were denied and the contents of plaint were re affirmed.
Brief facts in case bearing SCJ No. 607850/16
19. Besides reiterating the facts already mentioned in suit bearing no. 612478/16 (not repeated herein for the sake of brevity), the other allegations made in this suit by plaintiff are that later on, Delhi Transco Ltd. (defendant no.1 in this suit) started claiming that they have become owner of the property as they had purchased it from Refugee Cooperative Group Housing Society vide Sale Deed dated 16.06.1970. Plaintiff contends that Refugee Cooperative Group Housing Society was never admitted to be owner of the suit property nor they had any right to transfer the same in favour of defendant Delho Transco Ltd. As the earlier notification of 1950 was withdrawn by subsequent notification of 1953. However defendant was trying to interfere in its possession despite having no right to do so.
20. Further states that his (plaintiff's) rights were also admitted and accepted by above defendant while sanctioning the electricity connection in the suit property in the year 1995 even though defendant was now claiming to be in possession of suit property since year 1967 on the basis of Sale deed dated 16.06.1970. It is further stated that relying upon the above sale deed dated 16.06.1970, defendant wanted to take possession of the suit property with the help of MCD (defendant no.2 in this suit) and police and for that reason, they wanted to disconnect the electricity supply of plaintiff in the suit property, SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 even though he was paying its bills regularly and had not violated the terms of Electricity Act.
21. It is further alleged that with the help of MCD, defendant also wanted to demolish the suit property despite the fact that MCD had no right to demolish it as he was paying the house tax of suit property since its occupation nor any notice was served. It is further contended that the sale deed dated 16.06.1970 is a vague document wherein mutation of the suit property is not described properly and from the date of execution of sale deed till date, defendant never applied for sanctioning of mutation in its favour.
22. Further states that on 27.08.2001, some officials who claimed themselves to be the officials of defendant no.1 and 2 (Delhi Transco Ltd and MCD) visited the suit property for the purpose of taking possession and when plaintiff tried to convince them that the land in question had been denotified, they left the suit property extending threat that they will come again with force for taking possession from him and that they will also demolish the suit property.
23. Vide this suit, plaintiff has prayed for permanent injunction against the defendants thereby restraining them from interfering and disturbing his peaceful use and occupation of the suit property. Prayer is also made for permanent injunction in his favour thereby restraining the defendants from demolishing or dispossessing the plaintiff from the suit property.
24. Written Statement was filed only on behalf of Delhi Transco Ltd.
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
i.e. defendant no.1 and defendant no.2 was proceeded exparte whereas the opportunity to defendant no.3 to file written statement was closed.
25. In the Written Statement, defendant Delhi Transco Ltd. has taken the same defence as has been taken by it in the suit property bearing SCJ no. 612478/16, hence the same has not been produced herein for the sake of brevity. However it is also contended that since defendant had to complete its formalities for the construction of staff quarters on the said piece of land but it took considerable time because of several queries raised by LOSC, MCD and DDA. In the meantime, some tresspassers unauthorizedly occupied the land without having any legal right in the same. The matter was taken up by the Task Force of Delhi Government for removal of encroachment from the Govt. land. However the then Deputy Commissioner, West, Delhi Govt., ordered that before taking action for demolition of suit property, the electricity connection given to the encroachers be disconnected, so as to avoid any electrocution during the process of demolition. Accordingly action was initiated by the predecessor of defendant i.e. Delhi Vidyut Board, for disconnection of supply.
26. Further states that two of the encroachers namely Sh. Kishan Chand and M/s Singhal & Sons India Pvt. Ltd. had filed a suit for injunction bearing Suit no. 1255/99 and 1350/99 which were pending before the court of Sh. Sanjay Kumar, the then Ld. Civil Judge, Delhi and in both of these cases, the Hon'ble court had dismissed the stay application vide its order dated 18.08.2001. It is alleged that the plaintiff has filed this suit concealing the factum of filing of those suits. Other averments made in the plaint are denied SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 and prayer is made for dismissal of the suit.
ISSUE FRAMED AND THE EVIDENCE LED BY PARTIES.
Issues & Evidence in suit No. 612478/16
27. Vide Order dated 16.01.2009, following issues were framed by Ld. Predecessor :
1. Whether this suit is not valued correctly and properly for the purposes of court fees and jurisdiction of this court ? OPD1
2. Whether this suit is not maintainable in its present form, being barred under provisions of Specific Relief Act ? OPD 1 and OPD6
3. Whether this court has no jurisdiction to adjudicate upon the relief claimed being barred under Public Premises Act ? OPD 6
4. Whether plaintiff is entitled to decree of declaration as prayed for ? OPP
5. Whether plaintiff is entitled to decree of permanent injunction as prayed for ? OPP
6. Relief
28. Plaintiff has examined seven witnesses in support of his case. PW1 is plaintiff himself, PW2 is Sh. Rakesh, patwari from the office of SDM, Punjabi Bagh, PW3 is Sh. Chattar Pal Singh, Kanoongo, Record Room, Mehrauli, PW4 is Sh. D.N. Mehto, Naib Tehsildar, SDM Office, Punjabi Bagh, PW5 is Sh. Narender Kumar, Record Keeper, Revenue Department, Tis SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 Hazari Court, PW6 is Sh. Suresh Kumar, UDC from Department of Trade and Tax, Vyapar Bhawan, IP Estate, New Delhi and PW7 is Sh. Hukum Singh, AGII, Delhi Transco Ltd., CGO complex, Lodi Road. The witnsees relied on following documents :
" The Affidavit of PW1 is Ex. PW 1/1 wherein the averments made in plaintiff were reiterated, Site plan is Ex. PW 1/1, Copies of Khasra girdawaris is mark A, copy of demarcation report dated 22.01.1986 is Mark B, the electricity connection bearing K.No. 0249218046 is Mark C, copy of identification and correction of mutation entry dated 11.02.1988 is Mark X and the registration certificate dated 02.12.1981 is Ex. PW1/2, which were exhibited in the testimony of PW1. The documents exhibited by other witnesses are the Khasra girdawaris w.e.f 1986 to 1990, 1990 to 1999, 2003 to 2007, 2007 to 2011, 2011 to 2013 which are Ex. PW 2/A (colly), the copy of demarcation report dated 22.01.1986 is Ex. PW 3/1 (colly), Mark X to X 1 is the addition made in demarcation report, the attested copy of Order dated 08.03.1989 of SDM in case titled as Sh. M.M. Swami Yogeshwar Bedehi Hareji vs Refugee Cooperative Housing Society is Ex. PW 4/A, copy of mutation Order dated 08.03.1989 is Ex. PW5/A, copy of registration certificate dated 06.10.1981 issued in favour of Singhal & Sons India Pvt. Ltd. is Ex. PW 6/A."
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 All the plaintiff witnesses were examined and discharged. Thereafter PE was closed.
29. On the other hand defendant examined five witnesses. D1W1 is Maha Madelwhswar Swami Bhakat Hari as D1W1, Sh. Sumesh Tangri, DGM (T) as D6W1, Sh. Deepak Suri, Kanoongo as D6W2, Sh. Vishal Singh, JJ, Asst. Record Room ( Civil ), Tis Hazari Court as D6W2 ( inadvertently mentioned instead of D6W3), Sh. Anup Singh , UDC , office of Subregistrar II, Kashmiri Gate as D6W3 (inadvertently examined as D6W3 instead of D6W4). In their testimonies, following documents were exhibited: "The affidavit of D1W1 is Ex. D1W1/A, the affidavot of D6W1 is Ex. D6W1/A, the copy of notification is Mark A, copy of corrigendum dated 23.03.1953 is mark B, copy of statement and order dated 22.04.1959 is Mark C, copy of corrigendum dated 02.02.1960 is Mark D, copy of Sale Deed dated 16.06.1970 is Ex. D6W1/5, copy of application dated 11.02.1988 moved in the office of Tehsildar Mehrauli for correction of mutation entry is Mark E, the certified copy of Award no. 21/8384, Village Madipur, Delhi is Ex. D6W2/A. copy of Order U/o 39 rule 1 and 2 CPC dated 18.08.2001, passed by Sh. Sanjay Kumar, the then Ld. Civil Judge, Delhi is Ex. D6W2/1, copy of written statement dated 25.1.2000 filed by the then DVB in connected suit bearing no. 607850/16 is Ex. D1W2/2, copy of sale deed dated 16.06.1970 is Ex. D6W3/1. "
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 All the witnesses were duly crossexamined and discharged and DE was closed.
ISSUES & EVIDENCE IN SUIT NO. 607850/16
30. Vide Order dated 26.09.2002, following issues were framed in this suit by the Ld. predecessor of this court :
1. Whether the plaintiff is entitled to relief of permanent injunction as claimed ? OPP.
2. Relief.
31. In plaintiff evidence, plaintiff examined seven witnesses i.e. PW1 is plaintiff himself, PW2 is Sh. Rakesh, patwari from the office of SDM, Punjabi Bagh, PW3 is Sh. Chattar Pal Singh, Kanoongo, Record Room, Mehrauli, PW4 is Sh. D.N. Mehto, Naib Tehsildar, SDM Office, Punjabi Bagh, PW5 is Sh. Narender Kumar, Record Keeper, Revenue Department, Tis Hazari Court, PW6 is Sh. Suresh Kumar, UDC from Department of Trade and Tax, Vyapar Bhawan, IP Estate, New Delhi and PW6 is Sh. Jarrar Haider, Field Associate, BSES RPL, AFO Office, Punjabi Bagh (inadvertently examined as PW6 instead of PW7) . They relied on following documents :
" The affidavit of PW1 is Ex. PW1/1 wherein the averments made in plaintiff were reiterated, copies of khasra girdawaris are marked as Mark A and B, the demarcation report dated 22.01.1986 is Mark C, the electricity connection bearing K.No. 0249218046 is Mark D, license issued by MCD is Mark E, the SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 copy of mutation is Mark F, the copy of order of Punjab & Haryana High Court is Mark G, copy of sale deed dated 16.06.1970 is Mark H and Notification no. F 15(31) 50MTCE part II, dated 02.04.1953 is Mark I. The documents exhibited by other witnesses are the khasra girdawaris w.e.f 1986 to 1990, 1990 to 1999, 2003 to 2007, 2007 to 2011, 2011 to 2013 are Ex. PW2/A (colly), the copy of demarcation report dated 22.01.1986 is Ex.
PW 3/1 (colly), Mark X to X1 is the addition made in demarcation report, the attested copy of Order dated 08.03.1989 of SDM in case titled as SH. M.M. Swami Yogeshwar Bedehi Hareji vs Refugee Cooperative Housing Society is Ex. PW 4/A, copy of mutation Order dated 08.03.1989 is Ex. PW5/A, copy of Registration certificate dated 06.10.1981, issued in favour of Singhal & Sons India Pvt. Ltd. is Ex. PW 6/A and the copy of current bill of CA No. 100164557 is Ex. PW 6/1 (though it should have been Ex. PW7/1)."
All the plaintiff witnesses were duly examined. Thereafter PE was closed.
32. In defendant evidence, only defendant no.1 i.e. Delhi Transco Ltd. examined three witnesses. Sh. Sumesh Tangri, its official as D1W1, Sh. Vishal Singh, JJA, Record Room ( Civil ) as D1W2, Sh. Anup Singh, UDC from office of SubregistrarII, Kashmiri Gate as D1W3 and Sh. Deepak Suri, Kanoongo, LAC office, as D2W2. They relied on following documents :
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 "The Affidavit of D1W1 is Ex. D1W1/A, the copy of Notification is Mark A, copy of Corrigendum dated 23.03.1953 is Mark B, copy of statement and order dated 22.04.1959 is Mark C, copy of Corrigendum dated 02.02.1960 is Mark D, copy of Sale Deed dated 16.06.1970 is Ex. D1W1/5, copy of Application dated 11.02.1988 moved before Tehsildar, Mehrauli for correction of mutation entry is Mark E, copy of Order U/o 39 rule 1 and 2 CPC dated 18.08.2001, passed by the then Ld. Civil Judge, Delhi, is Ex. D1W2/1, copy of Written statement dated 25.01.2000 filed by the then Delhi Vidyut Board is Ex. D1W2/2, the certified copy of Award No. 21/8384 is Ex. D2W2/A, copy of sale deed dated 16.06.1970 is Ex. D1W3/1. "
The witnesses were crossexamined and thereafter DE was closed.
33. I have heard the arguments advanced by Ld. counsels for parties as well as perused the evidence on record in both the cases. I will firstly decide the issues as framed in SCJ No. 612478/16.
JUDGMENT ON ISSUES IN SUIT BEARING SCJ NO.
612478/16 SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 34. My issuewise findings are as under: ISSUE No. 1
Whether this suit is not valued correctly and properly for the purposes of court fees and jurisdiction of this court ?
The onus to prove this issue was upon the defendant no.1.
The contention of defendant no.1 was that the suit was not properly valued for the purposes of court fees and jurisdiction as its market value was more than Rs.10 lacs but the suit was valued only at Rs. 200/ for the purposes of declaration and Rs. 130/ for the purpose of permanent injunction. Having perused the record, in my opinion this issue was inadvertently framed by Ld. Predecessor of this court.
35. Perusal of record shows that this contention was raised on behalf of defendant on 06.10.2004 that the suit was not properly valued for the purposes of court fees and jurisdiction and the matter was put up for arguments on the aspect of court fees on 17.11.2004. Thereafter vide Order dated 21.05.2005, Ld. Predecessor directed the plaintiff to value the suit as per the market value of suit property and pay appropriate court fees accordingly. Thereafter in Order dated 16.08.2005, it is recorded that the plaintiff had amended the valuation clause and paid the appropriate court fees. After amendment, the suit has been valued at Rs. 2,50,000/ for the relief of declaration and at Rs.130/ for the relief of injunction. In view of the same, this issue regarding the valuation of suit and filing of court fees has already been dealt and decided by the Ld. SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 Predecessor of this court.
Under such circumstances, I cannot look into the aspect of valuation of suit and payment of appropriate court fees afresh. Even otherwise no evidence has come on record to suggest that the market value of suit property was Rs. 10 lacs at the time of filing of suit.
Hence this issue is decided in favour of plaintiff and against the defendant no.1.
36. ISSUE NO. 3.
3. Whether this court has no jurisdiction to adjudicate upon the relief claimed being barred under Public Premises Act ? The onus to prove this issue was upon defendant no.6.
The undisputed facts are that defendant no.1 was undisputed owner of suit property with some other land till year 1950. Thereafter a notification dated 30.12.1950 was issued whereby land measuring 987 Bigha 5 Biswa including that of Khasra No. 583 and 584, Village Madipur, Delhi was acquired and allotted to Refugee Cooperative Housing Society Ltd. However subsequently a corrigendum dated 23.03.1953 was issued by Delhi Administration whereby Khasra No. 583 and 584 was released from acquisition proceedings and it was ultimately ordered to be denotifed. The Writ petition preferred by Refugee Cooperative Housing Society Ltd was dismissed by Hon'ble Punjab and Haryana High Court vide its Order dated 21.10.1953 in Civil Writ No. 44 D53.
37. However the contention of defendant no. 6 is that after the above SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 proceedings, Refugee Cooperative Housing Society Ltd preferred an appeal against Order dated 21.10.1953 vide LPA No. 107/D of 1953. In the said appeal, the then Mahant of defendant no.1 appeared and gave a statement on 22.04.1959 Mark C that he had no objection to the appellant society acquiring Khasra No. 584. In view of the said statement, the appeal was withdrawn and another corrigendum dated 02.02.1960 Mark D was issued by OSD, Delhi Administration, whereby Khasra No. 584 was deleted from subsequent notification dated 23.03.1953 and its effect was that the first notification dated 30.12.1950 was confirmed with respect to Khasra no. 584 and hence the suit property falling in Khasra No. 584 was acquired by Refugee Cooperative Housing Society Ltd. Subsequently 1295 Sq. Yards out of the suit property was sold to it by Refugee Cooperative Housing Society Ltd through Sale deed dated 16.06.1970 Ex. D6W1/5 which was duly registered on 13.12.1973. Since, defendant no.6 was a government body, the suit property was a government land and hence the jurisdiction of the court did not lie in view of provisions of Public Permises Act.
38. On the other hand, defendant no.3 claims itself to be the owner of the suit property stating that in view of Notification/corrigendum dated 23.03.1953 Mark B, the land in Khasra no.584 and 584 were denotified and released from acquistion proceedings and even the Writ petition of Refugee Cooperative Housing Society Ltd was dismissed, so it again became owner of the land. Further the land was also mutated in its name vide Order dated 08.03.1989 of the then SDM. It is also worth stating that the said Order of SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 SDM has been challenged by defendant no. 6 before appropriate forum but it is yet to be decided.
39. From the above it is clearly apparent that both defendant no.1 and defendant no.6 are claiming their respective title over the suit property. Without deciding the rival claim of ownership of defendant no.1 and defendant no.6, this court cannot arrive at a conclusion as to whether the land is covered under the Public Premises Act or not. So the real question is whether in this suit, the court can decide as to which of the defendants is the real owner of suit property ?
40. In my considered opinion, the answer is in the negative. Evidence has been produced both by defendant no.1 and defendant no. 6 in order to prove their respective title and ownership over the suit property. However, it has to be stated that the present suit is not a title suit where the actual owner is to be decided among the contesting plaintiff and defendants. Rather this is a suit filed by plaintiff to declare him as owner by way of adverse possession on the basis of his self confessed admission that he is an encroacher in the suit property belonging to defendant no.1. The court has to confine itself in arriving at a conclusion as to whether plaintiff had managed to prove his case or not. The court cannot go into inter se dispute of ownership between the defendants themselves which would be a subject matter of separate litigation. Hence the defendants herein are required to file a separate suit among themselves to decide as to who is the real owner of the suit property. Further no issue has been framed in this regard in this suit.
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
For this reason, this court cannot give a finding as to whether the suit property falls under Public Premises Act or not since the title of defendant no. 6 is not admitted either by plaintiff or defendant no.1. Accordingly this issue is decided against defendant no. 6.
41. ISSUE No. 2 and 4.
2. Whether this suit is not maintainable in its present form, being barred under provisions of Specific Relief Act ?
4. Whether plaintiff is entitled to decree of declaration as prayed for ?
Both these issues are based on similar set of facts and evidences, hence are taken together. The onus to prove issue no.2 was upon defendant no.1 and 6 and that of issue no.4 was upon plaintiff.
42. The plaintiff wants himself to be declared as owner on the basis of adverse possession over suit property but on the other hand, defendants submit that no such declaration can be granted to plaintiff as per law.
43. Perusal of material on record shows that the contention of plaintiff is that he is in possession of suit property since year 1981 alongwith defendant no.2 to 5 and their names have also been recorded in the revenue records since year 1982 as the persons who are in possession of the suit property. Though the suit property was under the ownership of defendant no.1 but despite that after obtaining actual physical possession, he (plaintiff) and his brothers i.e. defendant no.2 to 5 had raised construction in the suit property from time to time and also got it registered as Singhal & Sons ( India) Pvt. Ltd. at the same SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 address. The plaintiff further contends that he is in continuous physcial possession of suit property which was open, overt, hostile and to the exclusion of all others.
44. At the outset it is pertinent to mention that this suit is bad for mis joinder of necessary and proper parties since defendant no.2 to 5 (brothers of plaintiff) have no concern whatsoever with the suit property as they are neither its owner nor are they claiming any right in the same. They are not even proforma defendants since their presence is not at all required for deciding any matter in controversy in this suit. Infact, it appears that plaintiff had impleaded his brothers in a collusive manner so as to elicit admissions of facts from them, in his favour. Moreover, defendants no.2 to 5 have been proceeded exparte which further shows that they had no concern with the suit property.
45. Be that as it may, since plaintiff is claiming himself to be the owner on the basis of adverse possession, the question before the court is whether plaintiff is entitled to seek relief of declaration of his ownership on the basis of adverse possession or not. The law is well settled regarding adverse possession. In T. Anjanappa & Others v. Somalingappa & Another (2006) 7 SCC 570 the Hon'ble Supreme court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that 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. Possession must SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 it was observed by Hon'ble Supreme court as under: "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
However the law is also well settled that this plea of adverse possession is only available to a defendant in a suit filed against him and the plaintiff cannot claim ownership over an immovable property on the basis of adverse possession. In Bhim Singh And Ors. vs Zile Singh and Ors. AIR 2006 PH 195, the above aspect was dealt with in detail and the Hon'ble Punjab and Haryana High Court held as follows: "Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein, based on title, can be field by a person claiming title within 12 years. The limitation under this Article commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of adverse possession is a defence available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein, in column 3 it has been specifically mentioned "when the possession of the defendant becomes adverse to the plaintiff." Thus, a perusal of the aforesaid Article 65 shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession."
In Prem Nath Wadhawan vs Inder Rai Wadhawan (1993) 105 PLR 70, the Hon'ble Delhi High Court held as follows: SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 "I do not find any merit in the contention of the learned Counsel for the plaintiff that the plaintiff has become absolute owner of the suit property by virtue of adverse possession as the plea of adverse possession can be raised in defense in a suit for recovery of possession but the relief for declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession."
In a recent judgment in the case titled as Gurudwara Sahib vs Gram Panchayat Village Sirthala & Anr (2014) 1 SCC 669, the Hon'ble Supreme Court reaffirmed the above proposition of law in following words: "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 filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
So the law is amply clear that the plaintiff is not entitled to seek relief of declaration on the basis of adverse possession. Under such circumstances, I am not even required to appreciate the evidence filed on record by plaintiff on this aspect. Infact in Hemaji Waghaji Jat Vs Bhikhabhai Khengarbhai Harijan & Others AIR 2009 SC 103, the Hon'ble Supreme Court expressed its anguish and disapproval of concept of Adverse possession in following words : "Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
35. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation."
With these observations, in my opinion, the plaintiff is not entitled to seek declaration of his ownership on the basis of adverse possession. Both these issues are decided in favour of defendants and against the plaintiff.
46. ISSUE NO. 55. Whether plaintiff is entitled to decree of permanent injunction as prayed for ?
The onus to prove this issue was upon the plaintiff.
The allegation of plaintiff is that defendant no.1 was interfering in his peaceful possession and wanted to take possession of the suit property even forcefully. Though the plaintiff is a self confessed encroacher of suit property which admittedly belongs to defendant no.1 but this fact is denied by defendant no.1 that he is an encroacher. In this regard, defendant no.1 has stated in its written statement that plaintiff was in permissive possession of suit property and permissive possession howsoever long, cannot by itself become hostile by long lapse of time. This fact is also mentioned in the Affidavit Ex.
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
D1W1/A. I am aware that in the crossexamination of present successor of defendant no.1 as D1W1, he has alleged that plaintiff is an unauthorized occupant and it was also denied that any permission was given to plaintiff to occupy the suit property. However it is trite to observe that a party cannot be permitted to travel beyond its pleadings at the time of evidence. Further in order Ex. D6W2/1 which was passed in another suit between the same parties bearing CS No. 1350/99, it is recorded at page 1 that as per plaint, plaintiff i.e. M/s Singhal & Sons (India) Pvt. Ltd., had "taken" the suit property from defendant no.1 Saraswati Sahitya Mandir and this suit was filed by plaintiff himself in his capacity of managing director. This also shows that possession was by permission.
47. As far as encroacher's right if any, are concerned, the law is well settled. An encroacher/tresspasser cannot seek a discretionary relief of injunction against a true owner. This legal aspect has been discussed in detail by me while deciding Issue No. 1 as framed in Suit bearing SCJ No. 607880/16. However the law also mandates that a person in settled possession cannot be dispossessed without due process of law. Since defendant no.3 himself states in the written statement that plaintiff was a permissive user of suit property so, evenif later on, the possession of plaintiff became adverse or hostile and that of a tresspasser, still he cannot be dispossessed by defendant no.3 without resorting to due process of law. At the same time, plaintiff also cannot claim an absolute relief that he cannot be permanently dispossessed by defendant no.1 because every person including defendant no.1, is entitled to SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 take assistance of law to assert his legal rights and especially considering the fact that plaintiff has not been declared owner of suit property by way of adverse possession while deciding issue no.4 as above. So protection can only be granted against forcible dispossession and not lawful dispossession.
48. Accordingly this issue is decided in favour of plaintiff and against defendant no.1. At the same time, it is also clarified that this issue is decided in favour of plaintiff due to admissions made by defendant no.3 that plaintiff was in permissive possession of suit property and not strictly on merits of the case.
JUDGMENT ON ISSUES IN SUIT NO. 607850/16 Now I shall decide the lone issue as framed in the connected suit bearing SCJ No. 607850/16.
49. ISSUE No. 1 in SCJ No. 607850/16
1. Whether the plaintiff is entitled to relief of permanent injunction as claimed ?
The onus to prove this issue was upon the plaintiff.
At the outset it is again being reiterated that plaintiff is claiming a discretionary relief of injunction from a court of law so as to protect his possession which is admittedly that of an encroacher or trespasser. The law is well settled that a person who seeks a discretionary relief from court, must come to the court with clean hands. A person who admittedly encroaches upon another's property being fully aware of its owner, cannot be deemed to be a person coming to court with clean hands and hence such a person cannot be SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 granted discretionary relief from court.
However, as already stated above, the law protects settled possession from forcible dispossession even if it is that is of a tresspasser, in view of Section 6 of Specific Relief Act. At the same time, the law also mandates that an encroacher cannot seek injunction against true owner. Both the above concepts of law have been dealt in detail by Hon'ble Delhi High Court in the celebrated judgment of Thomas Cook (India) Limited vs Hotel Imperial And Ors. 127 (2006) DLT 431, where the Hon'ble Delhi High Court discussed a plethora of judgments and ultimately held as follows: "It is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. This principle is laid down in Section of the Specific Relief Act, 1963. That Section says that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in "settled" possession as against mere fugitive possession, can get back possession if forcibly dispossed or rather, if dispossed otherwise than by due process of law, has been laid down in several cases. It was so held by the Supreme Court in Yashwant Singh v. Jagdish Singh AIR 1968, SC 620; Krishna Ram Mohale v. Mrs. Shobha Venkata Rao , Ram Rattan v. State of U.P. and State of U.P. v. Maharaja Dharmender Prasad Singh . The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India .
13. We shall now refer to the other aspect of the matter. Assuming a trespasser ousted can seek restoration of possession under SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 Section 6 of the Specific Relief Act, can the trespasser seek injunction against the true owner? In our view this question does not entirely depend upon Section 6 of the Specific Relief Act but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunctions? Recently, the law in this behalf has been clarified by the Supreme Court in clear terms in Maladeo Savlaram Shelke v. Pune Municipal Corporation. It was there held by Ramaswamy. J., after referring to Woodroffe on`Law relating to injunction; L.C. Goyle' Law of injunctions; David Bean `Injunction' Joyce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context the Supreme Court quoted Shiv Kumar Chandha v. MCD wherein it was observed that injunction is discretionary and that:
Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court His Lordship Ramaswamy, J. also referred to Dalpat Kumar v. Prahlad Singh in regard to the meaning of the words `prima facie case' and `balance of convenience' and observed in Mahadevo Savlaram Shelke (supra) at p.39:
It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession. Therefore as pointed by the above decision of the Supreme Court it is settled law that a trespasser cannot seek injunction against the true owner. It has been so held also by several High Courts stating that an injunction cannot be granted in favor of a person who is a trespasser against the true owner (Hoshiar Singh v. Gaon Sabha . In K.V. Narayan v. S. Sharana Gowda , Alamelu Achi v. Ponnaiah . Biswabam Pvt. Ltd. v. Santosh , Bishni v. Bahadur Singh ; Padmanabha v. Thomas . The above decisions accord with the view taken by the Supreme Court in Shiv Kumar Chadha's case and in Mahadeo Savlaram Shelke's case.
SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37
15. In our view injunction is an equitable relief and the Court must see whether a person who is a trespasser can seek the helping hand of the Court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to Court with clean hands. When he does these things there will be no occasion for him to seek an injunction inasmuch as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the Court to protect his illegal possession."
Coming to the facts of the case, though in my considered opinion, plaintiff is not entitled to discretionary relief of injunction in view of his own admission of being an encroacher, however even on merits, this relief of plaintiff is not maintainable. Now the question before the court in order to grant relief of permanent injunction is whether plaintiff was in settled possession of suit property or not ?
In Puran Singh & Ors vs State Of Punjab 1975 AIR 1674, the Hon'ble Supreme Court held: The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession"
does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession."
50. In the plaint, plaintiff has contended that he is in possession of suit property since year 1981 alongwith his brothers, who were impleaded as defendant no.2 to 5 in connected suit bearing SCJ No. 621478/16/00, so SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 admittedly he was not in exclusive adverse possession of suit property. Evenif defendant no.2 to 5 have given up or relinquished their alleged claim in the suit property but still plaintiff cannot acquire any such deemed right from them since the adverse possession of defendant no.2 to 5 is not transferrable possession or right, as it is yet to culminate in a complete right in favour of the persons in adverse possession.
51. Infact plaintiff is himself not in adverse possession which is clear from the evidence on record. The plaintiff has himself stated in his plaint that he and defendant no.2 to 5 had made constructions in the suit property and got it registered as Singhal & Sons (India) Pvt. Ltd. In his crossexamination dated 01.11.2013 in the connected suit bearing CS No. 612478/16/00, plaintiff as PW1 has further admitted that it was his company M/s Singhal & Sons (India) Pvt. Ltd. which was the encroacher and in possession of suit property. He also deposed that M/s Singhal & Sons India Pvt. Ltd. was a private Ltd. company and he was its Managing Director and in his capacity as Managing director, he was in possession of suit property. It is trite to observe that a limited Company whether public or private, is a separate legal entity in the eyes of law. The company can acquire, possess, use and dispose off assets in its own name. Furthermore, the assets of the company do not become the private property of directors of the company by any stretch of imagination. So evenif plaintiff was managing director of M/s Singhal & Sons India Pvt. Ltd., it is the company which can claim to be in adverse possession of suit property and not the plaintiff herein. Plaintiff is merely a representative of the company as far as the SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 suit property is concerned and nothing beyond that.
52. Further the factum of company being in possession of suit property is corroborated from the fact that Registration certificate Ex. PW 6/A of Department of Trade and taxes which was issued in the name of company on 06.10.1981 bears the same address as that of suit property. He was also paying all charges to the Delhi Sales Tax Department in his capacity of being manager and director of said company. Furthermore, the said company had also filed a separate suit against predecessor of defendant no.6 i.e. Delhi Vidyut Board bearing CS No. 1350/99 wherein it had sought permanent injunction to restrain defendant no.6 from disconnecting the electricity supply which was allotted in the name of company itself, at the suit property which was taken from Saraswati Sahitya Mandir. The interim application was dismissed vide Order Ex. D1W2/1. Later on the said suit was also dismissed.
53. Though I am aware that in order to prove his private possession, plaintiff had examined PW3 who exhibited the demarcation report Ex. PW3/1 which was prepared after demaraction dated 22.1.1983. As per plaintiff, this document shows him to be in actual and physical possession of suit property as an encroacher. Further he had been paying property tax, the receipts of which are Ex. PW 1/4. Plaintiff also examined Patwari as PW2 who has exhbited Khasra Girdawaris w.e.f 1986 to 1999, 20032013 which are Ex. PW 2/A ( colly.). As far as the revenue record i.e. demarcation report Ex. PW 3/1 and Khasra girdwaris Ex. PW 2/A are concerned, in my opinion, the said records are not reliable for the reason that they are contradictory to the other documents SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 which show the possession of Singhal & Sons (India) Private Ltd. Further Khasra Girdawari is a document, in which the patwari enters the name of owner, name of cultivator, land/khasra number, area, kind of land, cultivated and non cultivated area, source of irrigation, name of crop and its conditions, revenue and rate of revenue. However the admitted fact is that plaintiff was not cultivating any crop on the suit property but rather he was running a company by the name of Singhal & Sons India Private Ltd. This itself proves that Khasra Girdwari and demarcation report are not reliable to prove possession of plaintiff. Lastly house tax can be paid by anyone and that also does not prove the possession of plaintiff.
54. In view of the same, in my considered opinion, the plaintiff cannot be said to be settled possession of suit property, so as to claim this relief against Delhi Transco Ltd. Even otherwise being a trespasser, he cannot claim a discretionary relief against an owner Accordingly this issue is decided in favour of defendant and against the plaintiff.
55. RELIEF In view of aforementioned observations and findings, the suit of the plaintiff bearing SCJ No. 612478/16/00 stands partly allowed qua the relief of permanent injunction against defendant no.1 i.e. Saraswati Sahitya Mandir and the said defendant is restrained from forcibly dispossessing the plaintiff from the suit property i.e. one bigha of suit property out of khasra no. 584 situated in the revenue estate of Village Madipur, Delhi, as shown in the red colour in site plan Ex. PW1/1, without due process of law. However the relief of declaration SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37 sought by plaintiff to declare him as owner of the suit property stands dismissed as not maintainable. As regards suit bearing SCJ No. 607850/16 is concerned, the same also stands dismissed against all the defendants. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court ( A.K. Agrawal) today on 30.09.2016 Civil Judge 01 ( West)/Delhi SCJ No.612478/16 & 607880/16 Vakil Chand vs Saraswati Sahitya Mandir & Vakil Chand vs Delhi Transco Ltd. 37 /37