Delhi District Court
Gulab Mehboon Subhani vs Dr. Nand Lal on 21 December, 2023
IN THE COURT OF Ms BHARTI GARG, CIVIL JUDGE 07
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Civil Suit No. : 96/06
CNR No. : DLCT03-000007-1975
Date of Institution: 10.11.1975
Date of Reserving Judgment: 30.10.2023
Date of Decision: 21.12.2023
1. Mr. Gulam Mahboon Subhani (deceased)
1A. Smt. Mahfooza Subhani (expired) (No LRs.)
1B. Hakim Gulam Jillani Niazi (expired) (No LRs.)
1C. Badar Rabhani Qutbi
1D. Badar Samdani Qutbi (since deceased)
Through LRs.
(i) Smt. Kaniz Ayisha
W/o Late Sh. Badar Samdhani Qutabi
1E. Masood Paraze Qutbi
1F. Habibur Rehman Qutbi (since deceased)
Through LRs
(i) Smt. Ghousia Habbib
W/o Late Habibur Rehman Qutbi
(ii) Sh. Syed Shabihul Husan
S/o Late Habibur Rehman Qutbi
(iii) Sh. Syed Mehdi Husaain
S/o Late Habibur Rehman Qutbi
(iv) Ms. Sayeda Mahin Jamal
D/o Late Habibur Rehman Qutbi
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through
LRs Civil Suit No:- 96/06 Page 1 of 36
(v) Ms. Tahoor Gul
D/o Late Habibur Rehman Qutbi
(vi) Ms. Sayeda Bushra
D/o Late Habibur Rehman Qutbi
1G. Naseema Begum (expired) (No LRs)
1H. Shamina Nayyar (expired) (No LRs)
1I. Nasima Begum (expired) (No LRs)
1J. Ahmad Jahan Begum (expired) (No LRs)
1K. Ghizala Yasmine (expired) (No LRs)
1L. Aziz Fatma
All R/o Dargha Sharif,
Mehrauli, New Delhi.
.........Plaintiff
Versus
1. Dr. Nand Lal (deceased)
1A. Sohan Lal Sabharwal (since deceased)
1A1. Smt. Sheel Rani Sabharwal
W/o Sh. Sohan Lal
1A2. Mrs. Bela Puri
D/o Sh. Sohan Lal
1A3. Mrs. Rajni Khullar
D/o Sh. Sohan Lal
1A4. Mr. Pradeep Sabharwal
S/o Sh. Sohan Lal
1A5. Mr. Dalip Sabharwal
S/o Sh. Sohan Lal
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through
LRs Civil Suit No:- 96/06 Page 2 of 36
1A6. Mrs. Indra Bhawan
D/o Sh. Sohan Lal
All resident of
H. No. 533, Ward No. 5
Mehrauli, New Delhi.
1B. Sh. Vijay Sabharwal
S/o Dr. Nand Lal
1C. Sh. Ramesh Sabharwal
Both R/o H. No. 533, Ward No. 5,
Mehrauli, New Delhi.
1D. Mrs. Krishna Soni
D/o Dr. Nand Lal
R/o H. No. 533, Ward No. 5,
Mehrauli, New Delhi.
1E. Mrs. Raj Rani Chadha
D/o Dr. Nand Lal
R/o No. 63, West Patel Nagar,
New Delhi.
1F. Mrs. Janki Rani,
5, Munirka Vihar,
5, FS Flats, New Delhi
2. The Union of India
Through Secretary
To the Government of India,
Ministry of Work and Rehabilitation Delhi.
..........Defendants
SUIT FOR RECOVERY OF POSSESSION
JUDGMENT
1. This is the suit for recovery of possession of the property bearing Municipal no. 533 Ward no.5, Mehrauli, New Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 3 of 36 Delhi (hereinafter, referred to as 'suit property no.1') and the adjoining Khandar (hereinafter, referred to as 'suit property no.2'), as depicted with red ink in the site plan annexed with the plaint.
PLAINT:-
2. The averments of plaint in brief are that the suit properties are the ancestral properties of plaintiff which stood in the name of his father Sh. Gulam Dustgeer who paid house tax during his lifetime and after his death, the plaintiff had paid the same up to 1964-65. The father of plaintiff died at Delhi on 08.05.1941 leaving behind plaintiff as his only legal heir and as such, plaintiff is the owner of suit properties. The plaintiff was a retired school teacher and had been living a Dargah Hazrat Kutubuddin Bakhteer Kaki Mehrauli, New Delhi. He shifted to the camp in the year 1947 due to the disturbances at that time, but never migrated to Pakistan. Defendant no.1, who was probably employed in the Rehabilitation Department, had approached the plaintiff for taking the suit properties on rent. Accordingly, the plaintiff allowed defendant no.1 to occupy the suit properties at a rent of Rs.20/- per month. The plaintiff was not in a position to manage the properties due to litigation with his brother-in-law and used to collect rent only once or twice a year. Defendant no.1 started harassing the plaintiff and got some notices issued from the Rehabilitation Department which were withdrawn after investigations and defendant no.1 offered to pay monthly rent of Rs.100/- which was agreed by the plaintiff. However, after two months, defendant no.1 started avoiding the payment of rent and later, refused to pay the same. The plaintiff Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 4 of 36 could not sue defendant no.1 due to litigations with his brother- in-law and defendant no.1 got the suit properties recorded as evacuee properties in connivance with the Rehabilitation Department without his knowledge. When the plaintiff requested defendant no.1 to vacate the suit properties in 1968, he refused to do so. The plaintiff then sent a notice to defendant n o.1 in February 1974 asking him to pay the rent. But he was surprised to learn from his reply in March 1974 that the suit properties had been sold to defendant no.1 by the Custodian Department without any notice to him. The plaintiff made enquiries about it and issued notice to defendant no.2 but nothing was found from their record and no reply was received. It is averred that suit properties cannot be declared as Evacuee Property as no notice was given by the Custodian of Evacuee Property as required and any such declaration, if any, is illegal and void as the prescribed procedure has not been followed. Only one notice relating to the suit property no.2 was received from the Custodian which, after contest, was withdrawn by defendant no.2. Therefore, the present suit has been filed seeking the relief as mentioned in paragraph no.1 of the judgment.
WRITTEN STATEMENT:-
3. Defendant no.1:- In the written statement, defendant no.1 took the preliminary objections that the suit is not valued properly for the purpose of court fee and jurisdiction, suit is barred under Section 50 of Delhi Rent Control Act, no notice has been served upon defendant no.2 and suit properties were not described properly. On merits, it is denied that plaintiff is the owner of suit properties or that defendant no.1 was his tenant Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 5 of 36 therein. It is stated that defendant no.1 is the owner of two properties, i.e. property bearing no.533 and other described as Khandar, bearing Custodian no.42. It is further stated that defendant no.1 was employed in the office of Chief Claims Commissioner for some time and not in the office of Custodian Evacuee Property and retired around 16 years ago. It is denied that he had got any notice issued to the plaintiff in connivance with the Rehabilitation Department. It is averred that the suit properties were Evacuee Properties and sold to defendant no.1 by the President of India vide two sale deeds viz. one dated 13.02.1967 registered on 27.03.1967 with respect to property no.533 and other dated 31.08.1962 registered on 21.09.1962 with respect to Custodian property no.42 (against claims) and stated as Khandar, now bearing no.497A, situated within the limits of Delhi Municipal Corporation, of which he has been paying taxes.
In any case, defendant no.1 is a bonafide transferee for value and has invested substantial amount in the properties. Further, the market value of the suit property is over Rs.80,000/- as on the date of filing of suit. All the other averments of plaint are refuted and it is prayed that the suit be dismissed.
4. Defendant no.2:- Defendant no.2 also traversed the pleadings of plaint in its written statement. Apart from taking the preliminary objections regarding the bar of limitation, bar of jurisdiction under the provisions of Evacuee Administration Act as well as Displaced Persons (Compensation and Rehabilitation) Act, non-compliance of Section 80 CPC and undervaluation of suit, it is submitted that suit properties belonged to evacuees Sh. Mohd. Ishaq and Gulam Dustageer and transferred to defendant Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 6 of 36 no.1 as displaced person by the Managing Officer vide order dated 18.05.1966. It is reiterated that the suit properties are Evacuee Properties and prayed that the suit be dismissed.
REPLICATION:-
5. In pursuance of the written statements filed by defendants, plaintiff filed separate replications in which the averments of plaint have been reiterated and the allegations of written statements have been denied.
ISSUES:-
6. On the basis of the pleadings of the parties, following issues were framed vide order dated 07.11.1978:-
Issue no.1- Is the plaint properly valued for purposes of court fees and jurisdiction? OPP Issue no.2- Are the plaintiffs owners of the property described in para 1 of the plaint? OPP Issue no.3- Whether the Civil Courts have jurisdiction to try the suit in view of the admission in the plaint that the property in suit was declared Evacuee property and sold to defendant no.1 as such? OPD Issue no.4- Is the suit within limitation? OPP Issue no.5- Whether no notice u/s 80 CPC was served upon defendant no.2? OPD2 Issue No.6- Relief.
7. Notably, plaintiff and defendant no.1 expired during the pendency of proceedings and their legal representatives were substituted vide order dated 03.02.1978 and 19.05.1987 Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 7 of 36 respectively, who continued the further proceedings in suit.
PLAINTIFF EVIDENCE:-
8. In order to prove his case, the plaintiff firstly examined Sh. Hakim Ghulam Zilani Niazi Qutubi as PW1 who proved the following documents:- site plan as Ex.P1, order of Asst. Custodian Judicial as Ex.P2, house tax receipts as Ex.P3 and Ex.P4, notices as Ex.P5 to Ex.P7, postal receipts as Ex.P8 and Ex.P9, AD card as Ex.P11, Ex.P12 and Ex.P13, receipt as Ex.P14, receipt dated 27.04.1892 as Ex.PW1/X1, receipt dated 28.02.1909 as Ex.PW1/X2, receipt dated 28.02.1909 as Ex.PW1/X3, agreement dated 21.04.1892 as Ex.PW1/X4, agreement dated 15.03.1909 as Ex.PW1/X5, agreement dated 15.03.1909 as Ex.PW1/X6 (Ex.PW1/X1 to Ex.PW1/X6 are in Urdu language and the English translation thereof was taken on record vide order dated 03.05.1997), notice issued by MCD to Gulam Dustgeer for the year 1962-63 as Mark A and notices issued to plaintiff as Mark B, Mark C and Mark D.
9. The plaintiff further examined Sh. S.C.Srivastava as PW2, Sh. R.N.Gupta as PW3, Sh. S.K.Srivastava as PW4, Sh. Rehmad Qutubi as PW5, Sh. Prem Narain as PW6 and Sh. Phool Chand Goel as PW7. PW7 tendered the documents of site plan as Ex.PW7/1 and Ex.PW7/2 and also the report prepared by him as Ex.PW7/3. All the witnesses were duly cross-examined by defendants whereafter, the Ld. counsel for plaintiff closed the plaintiff evidence vide statement dated 03.02.1993.
DEFENDANT EVIDENCE:-
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 8 of 36
10. On the other hand, defendant no.1 examined Sh. Vijay Prakash as DW1, who tendered the sale deed dated 13.02.1967 as Ex. DW1/1, sale deed dated 31.08.1962 as Ex.DW1/2, original receipts issued by Addl. Regional Settlement Commissioner/Add. Custodian of Evacuee Property as Ex.DW1/3 to Ex.DW1/5, documents in the register of the Office of Regional Settlement Commissioner as Ex.DX/1 to Ex.DX/5, document in register of evacuee properties as Ex.DX/6 and Ex.DX/7 and survey report as Ex.DX/8. Lastly, Sh. Ramesh Prakash Sabbarwal was examined as DW2 and he additionally tendered the house tax receipts as Ex.DW2/1 and Ex.DW2/2, carbon copy of notice as Ex.DW2/3 and letter received from Regional Settlement Officer as Ex.DW2/4. Defendant no.2 chose to not lead any evidence. Thereafter, evidence was closed by defendants and the matter was then taken up for final arguments.
JUDGMENT DATED 21.11.2012 of Ld. PREDECESSOR:-
11. The judgment was pronounced by Ld. Predecessor on 21.11.2012 whereby the suit of plaintiff was dismissed by holding that the suit was barred under The Administration of Evacuee Property Act, 1950 (hereinafter, referred to as 'Act' for brevity) and accordingly, deciding issue no3 in favor of defendants. However, it was held that the suit was not barred under Section 50 of The Delhi Rent Control Act, 1958.
APPEAL AGAINST JUDGMENT DATED 21.11.2012:-
12. The plaintiff preferred an appeal against the judgment and decree dated 21.11.2012 of Ld. Predecessor, which was allowed by Ld. Appellate Court vide order dated 30.05.2023, Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 9 of 36 while reversing the finding on issue no.3 and affirming the finding on issue of bar of jurisdiction under Section 50 of Delhi Rent Control Act, 1958. It was held that the suit was not barred under The Administration of Evacuee Property Act and the judgment dated 21.11.2012 was set aside and the matter was remanded back with the direction to adjudicate the issue nos.
1,2,4,5 and 6 on the basis of evidence already led.
13. Final arguments have been heard on behalf of both the parties at length. The case file has been perused. The issue- wise adjudication and the findings of the Court are as under :-
ISSUE NO.1:-
14. The onus to prove this issue lies on the plaintiff. The plaintiff has filed the present suit for possession on the basis of his ownership. Therefore, the suit has to be valued for the purpose of court fee according to Section 7(v) of The Court Fees Act, 1870 at the value of the suit properties. Similar valuation has to be made for the purpose of pecuniary jurisdiction in terms of Section 3 of The Suit Valuation Act, 1887. Now, in the original plaint, the plaintiff had valued the suit at Rs.240/-, i.e. 12 times the annual rent paid by defendant no.1. However, later he amended the suit valuation by filing an amended plaint on 03.09.1997, wherein the relief for possession has been valued at Rs.80,000/-, being the market value of suit properties and appropriate court fee has been paid. It is trite that the amendment relates back to the date of filing of suit.
15. Defendant no.1 in paragraph no.16 of his written statement, had objected to the suit valuation made in the original Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 10 of 36 plaint by himself averring that the market value of the suit properties was over Rs.80,000/-. Defendant no.2, on the other hand, pleaded the value to be Rs.9,000/-. However, after the new valuation was incorporated in amended plaint, the defendants did not file any reply thereto to rebut the suit valuation. Further, it is an admitted position that suit property no.1 was purchased by defendant no.1 vide conveyance deed dated 13.02.1967 for a consideration amount of Rs. 7,839 and suit property no.2 was purchased for Rs.370/- vide conveyance deed dated 31.08.1962.
16. The Ld. counsel for defendant no.1 has drawn the attention of this Court to the cross-examination of PW1 Hakim Ghulam Zilani wherein he deposed that the market value of suit properties as on date was Rs.1 lakh. However, this statement was made by PW1 on 21.11.1979 and the suit was filed on 10.11.1975. It is the value of suit properties which prevailed as on the date of institution of suit that is relevant for arriving at the suit valuation and not any subsequent date. It is not the case of defendant that the suit properties were of the same value in the year 1975 and 1979. Therefore, the plaintiff has discharged his initial onus that the suit has been valued correctly at the market value as on the date of filing of suit. No material is brought on record by the defendants to controvert the same. Thus, issue no.1 is decided against the defendants and in favour of plaintiff.
ISSUE NO.2:-
17. The onus to prove this issue lies on the plaintiff. In order to prove the ownership of suit properties, the plaintiff has adduced the documentary evidence of sale deeds and receipts Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 11 of 36 Ex.PW1/X1 to Ex.PW1/X6, certain house tax receipts of MCD Ex.P3 and Ex.P4, Notified Area Committee Mehrauli receipt Ex.P14 and MCD documents Mark A to Mark D. Apart from this, he has also relied upon the ocular evidence of the plaintiff witnesses.
18. First and foremost, the receipts Ex.P3 and Ex.P4 evince that these have been issued by MCD on 25.03.1963 and 16.02.1965 respectively, in respect of some amount received from Gulam Dustgeer through the plaintiff, and also contain the description of suit property no.1. However, the purpose for which these were executed is not mentioned, meaning thereby, it is not clear if these allude to payment of house tax of suit properties, as is suggested by plaintiff. Likewise, the receipt Ex.P14, issued by Notified Area Committee Mehrauli, though mentions the name of plaintiff, but neither specifies the property details nor the nature of transaction. Further, vide documents Mark C and Mark D, the plaintiff was merely directed by MCD to submit the supporting documents in respect of his application for mutation of suit property no.1. Mark B is a photocopy document in Urdu language and as such, not admissible in evidence for want of original. In this manner, none of these documents throw any light upon the ownership of plaintiff (or his father) in the suit properties.
19. The document Mark A is the notice dated 16.11.1962 to Gulam Dustgeer by MCD, demanding the property tax of suit property no.1 for the year 1962-63. PW3 R.N.Gupta also brought the record of assessment list for the period 1967-
1969, and stated that the person primarily liable for payment of Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 12 of 36 house tax of suit property no.1 is recorded to be Gulam Dustgeer. He further deposed that Gulam Dustgeer was the recorded owner of suit property no.1 as per the MCD record for the year 1960-61. Pertinently, this record, although summoned, was not got tendered in evidence by the plaintiff.
20. It also deserves to be highlighted here that none of the receipts or records are in the name of plaintiff himself, rather all are in the name of his father. This assumes significance in as much as the plaintiff stated that after the death of his father in 1941, he had been regularly paying the house tax of the suit properties till 1964-65. If that were so, then it is inconceivable as to why his name was not got mutated in the municipal records because there is nothing on record to substantiate that the suit properties were eventually mutated in the name of plaintiff.
21. There is yet another reason why the genuineness of the record of MCD produced by plaintiff is dubious. Since it is the own case of plaintiff, as also proved by PW2 S.C.Srivastava, that Gulam Dustgeer had expired in 1941, the fact that his name continued to be in the revenue records as the person primarily liable for the house tax until after 20 years of his death, all the more constrains this Court to not attach any weight to these documents. In fact, the plaintiff has not adduced any document reflecting the name of Gulam Dustgeer in the municipal records for the period when he was alive.
22. Even otherwise, it is well-settled that an entry in municipal record is not evidence of title and merely shows the person who was held liable to pay the property tax to the Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 13 of 36 municipality. The Hon'ble Supreme Court has held in Union of India Vs. Vasavi Cooperative Housing Society Limited & Ors. (2014) 2 SCC 269 that:-
"21. This Court in several Judgments has held that the revenue records does not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 held that "it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law." In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 this Court has held that "that the entries in jamabandi are not proof of title". In State of Himachal Pradesh v. Keshav Ram and others (1996) 11 SCC 257 this Court held that "the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff."
23. Similar position has been reiterated in Smt. Bhimabai Mahadeo Kambekar (D) Through LR Vs. Arthur Import and Export Company & Ors. (2019) 3 SCC 191 as hereinbelow:-
"8. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni (Smt.) vs. Inder Kaur, (1996) 6 SCC 223, Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591)."
24. In view thereof, the title of plaintiff cannot be even slightly presumed on the basis of these receipts. The plaintiff has also traced his title to the sale deed dated 21.04.1892 Ex.PW1/X4 (executed by Zahiruddin in favor of Gulam Nizamuddin), sale deed dated 15.03.1909 Ex.PW1/X5 (executed by Husaini in favor of Gulam Nizamuddin) and sale deed dated 15.03.1909 Ex.PW1/X6 (executed by Saonli in favor of Gulam Nizamuddin), and the corresponding receipts Ex.PW1/X1 to Ex.PW1/X3.
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 14 of 36 Gulam Nizamuddin is, admittedly, the father of Gulam Dustgeer and grandfather of plaintiff. Be that as it may, it is inexplicable as to why the plaintiff did not refer to these sale deeds in his plaint to disclose how the title to the suit properties devolved upon his ancestors. For that reason, firstly, the plaintiff cannot be allowed to rely upon any evidence which traverses his pleadings.
25. Secondly, the minute reading of said documents brings to fore that these were executed in respect of sale of residential properties, situated at Mohallah Khadiman inside the abadi of Mehrauli. No evidence, however, has been led to insinuate that subject matter of these sale deeds is the same as suit properties. PW1 Hakim Gulam Jilani stated in his cross- examination that he did not bring any document which could independently show that the suit properties were situated at Mohallah Khadiman. In stark contrast, he admitted that suit property no.1 is situated at Imli Wala Bangla Doodh Wali Gali and suit property no.2 in Gali Imambada. Again, there is no document to show that these areas were called Mohallah Khadiman at any point in time.
26. Moving further, the boundaries of the suit properties depicted in the site plans Ex.PW7/1 and Ex.PW7/2 as well as in the conveyance deeds Ex.DW1/1 and Ex.DW1/2, also do bear any semblance with the boundaries described in the sale deeds Ex.PW1/X4 to Ex.PW1/X6. Accordingly, there is not even an iota of evidence to indicate that the title to the suit properties had devolved upon the predecessors of plaintiff pursuant to the said sale deeds. The veracity of these sale deeds is further shrouded with suspicion as PW1 took a contradictory stand in the witness Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 15 of 36 box by stating that the suit properties were constructed by Gulam Dustgeer, whereas, the documents purport to show that they were rather purchased by the father of Gulam Dustgeer. In addition to this, PW1 also stated that one of the properties was also unregistered, though there is an ambiguity on the point as to which of the suit properties was unregistered. It is also an indisputable position of law that an unregistered document is incapable of transferring any title.
27. In that regard, Section 54 of The Transfer of Property Act, 1882 categorically provides that ownership can be transferred only by virtue of a registered instrument. The said provision is reproduced as hereinbelow:-
"54. "Sale" defined-"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intang ible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale- A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
28. Further, Section 17 of The Indian Registration Act, 1908 also stipulates that an instrument of sale deed is required to be compulsorily registered, failing which, it is mandated under Section 49 that any immovable property comprised therein shall not be affected. There is no other cogent material on record to show that the grandfather of plaintiff had acquired ownership in Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 16 of 36 the suit properties through a registered sale deed.
29. As far as the testimonies of PW5 Rehmad Qutabi and PW6 Prem Narain Are concerned, their oral evidence cannot be admitted on the point of proving title of plaintiff. Section 91 of The Indian Evidence Act, 1872 lays down that "when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." Thus, in the absence of the documentary evidence of sale deeds on record, the plaintiff cannot seek any support from the ocular evidence of PW5 and PW6 to prove his ownership.
30. The plaintiff has also relied heavily on the testimony of DW1 Vijay Prakash to assert his ownership in the suit properties. DW1 appeared from the Department of Evacuee Property and stated that plaintiff and his father were previous owner of suit properties. The source from where he obtained the said information purports to be the record maintained by the Department of Evacuee Property and the notice under Section 7(1) of the Act upon which order Ex.P2 was passed. Upon careful reading of this order, it is apparent that the said notice was sent to plaintiff and his father to show cause as to why they should not be declared as evacuee and suit property no.2 be declared as evacuee property. The notice was withdrawn by concluding, on Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 17 of 36 the basis of material produced before the Assistant Custodian (Judicial), that plaintiff was non-evacuee as he had not migrated to Pakistan. Furthermore, one receipt dated 05.10.1949 issued by Custodian of Evacuee Property Ex.DWX/4 is also relied upon by the plaintiff, which states that Rs.4/8/- was received as rent from defendant no.1 in respect of suit property no.1 owned by Gulam Dustgeer.
31. However, the aforesaid documents also, by no means, are decisive to prove the ownership of plaintiff or his father in the suit properties. Without the primary documents of ownership being there on record, few stray documents forming part of record of department would not be determinative of the title of plaintiff. This is more so, as DW1 Vijay Prakash additionally stated the names of Jahangir Bux and Ashiq Ali as the owner of suit property no.2 subsequently in his cross- examination by producing survey report Ex.DWX/8 qua suit property no.2, wherein the name of owner is mentioned as Ashiq Ali. No explanation is forthcoming for said inconsistency, thereby further diminishing the evidentiary value of said record as proof of ownership of suit properties. It may be added here that the very same witness also proved the conveyance deeds Ex.DW1/1 and Ex.DW1/2 in favor of defendant no.2, whose legality has been assailed by the plaintiff. Therefore, adjudging on the scale of preponderance of probabilities, the testimony of DW1 alone is not sufficient to establish the title of plaintiff in the suit properties.
32. Barring the issue of ownership, it is crucial to note that plaintiff has also not been able to prove that defendant no.1 Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 18 of 36 was in possession of suit properties as his tenant, for reasons discussed hereinafter. It is the case of plaintiff that both the suit properties were given on rent to defendant no.1. As opposed to this, it transpires from a cursory glance at legal notice dated 18.02.1974 Ex.P5 that plaintiff had stated therein that defendant no.1 was his tenant in suit property no.1 and had asked defendant no.1 to not encroach upon the suit property no.2 as this was separate from the tenanted premises of suit property no.1. This signifies that defendant no.1 was never inducted as tenant in suit property no.2 in the first place. The said fact is further incoherent with the testimony of PW1 Hakim Gulam Jilani and PW5 Rehmad Qutabi. PW1 stated that after the notice was withdrawn in 1957, suit property no.2 was given on rent to defendant no.1 at rent of Rs.100/- per month and PW5 stated that suit property no.2 was let out to defendant no.1 on 15 th August 1950-51 at a monthly rent of Rs.100/-.
33. Furthermore, material contradictions have emerged in the statements of PW1 Hakim Gulam Jilani, PW5 Rehmad Qutabi, PW5 and PW6 Prem Narain inter-se. While PW1 Hakim Gulam Gilani testified that defendant no.1 had first approached the plaintiff in the year 1948-49 for taking suit property no.1 on rent, PW5 deposed that suit property no.1 was already given on rent to defendant no.1 in 1947. Another inconsistency is apparent as PW6 stated that both suit properties were rented out on 15 th August 1950-51 for Rs.100/- per month. Apart from this, as per the case of plaintiff and evidence of PW1, the monthly rate of rent initially was Rs.20/- and was increased to Rs.100/- only after 1957 when the notice was withdrawn. Both PW5 and PW6 have Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 19 of 36 rendered different versions of transaction which purportedly took place on 15th August 1950-51. PW5 did not name PW6, and vice- versa, as amongst the other persons who were present at the time when negotiation occurred between plaintiff and defendant no.1. Contrary to the statement of PW5 stated that the deal happened in Dargah Qutub Sahib Mehrauli, PW6 deposed the place of incident as his shop.
34. It has been elicited in cross-examination of PW5 that he is the brother-in -law of plaintiff, implying that he is an interested witness. Pertinently, the plaintiff also glossed over the substantial facts in his plaint qua the period when the tenancy agreement was entered or from when defendant no.1 was admitted as tenant. It is also not discernible as to from which particular year the rent was increased to Rs.100/-. The averment of plaintiff that he had requested the MCD to attach the rent due from defendant no.1 as he had stopped paying rent from 1966, is also unsubstantiated and no such letter is on record. In view of such loopholes, coupled with the unreliable testimonies of plaintiff witnesses, it was imperative for the plaintiff to produce some document or rent receipt to prove the factum of relationship of landlord-tenant. Having failed to do so, makes the case of plaintiff altogether dubious.
35. DW2 Ramesh has also testified that defendant no.1 had entered into the possession of suit properties as the tenant of Custodian in 1949. The same is also corroborated by the rent receipts dated Ex.DW1/3 to Ex.DW1/5, in respect of suit property no.1. More particularly, receipt Ex.DW1/3 records the receiving of rent by Custodian from defendant no.1 for the period Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 20 of 36 11.07.1949 to 01.04.1957 and receipt Ex.DW1/5 for July to September 1966. The document Ex.DW2/4 also records that the Office of Regional Settlement Commissioner had intimated defendant no.1 about the fixation of rent of suit property no.2 on 22.08.1961. No substantial challenge has been made to these documents in the cross-examination of DW2 by plaintiff. The Court therefore, finds substance in the case of defendant no.1 on that aspect. In view of the aforesaid discussion, the evidence led by plaintiff does not inspire the confidence of this Court either to hold that he was the landlord of defendant no.1 in the suit properties or that he is the owner thereof. Consequently, issue no.2 is decided against the plaintiff and in favour of defendants.
ISSUE NO.3:-
36. Issue no.3 has already been decided in favor of plaintiff and against the defendants by Ld. Appellate Court vide judgment dated 30.05.2023.
ISSUE NO.4:-
37. The onus to prove this issue is placed upon the plaintiff. At the outset, the period of limitation for filing the present suit is governed by Article 65, Schedule I of The Limitation Act, 1963, as the plaintiff has claimed the relief of possession in the suit properties on the basis of his title. This Article prescribes 12 years' period from the date when the possession of defendant becomes adverse to plaintiff. It is postulated on behalf of plaintiff that the suit is within limitation as the cause of action began on 10.03.1974, i.e. when he came to Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 21 of 36 know that the suit properties had been conveyed by defendant no.2 to defendant no.1 vide reply Ex.DW2/3 of defendant no.1 to his legal notice Ex.P5. Per contra, the Ld. counsel for defendant no.1 has vehemently opposed this proposition by arguing that period of limitation would commence from 1949 when the defendant was put in possession of suit properties, or at the most from 1957 when he challenged the notice under Section 7(1) of the Act Ex.P2.
38. Before appreciating the rival submissions of both parties, it is apposite to delineate the meaning of word 'adverse' occurring in Article 65 of The Limitation Act, 1963. In this respect, the following ratio in the judgment of T.Anajanappa & Ors. Vs. Somalingappa & Anr. (2006) 7 SCC 570 may be referred to:-
"12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but den ies them:It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co- owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owner. (See Vidya Devi v.
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 22 of 36 Prem Prakash and Ors. (1995 (4) SCC 496).
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title."
39. In the instant case, at the cost of repetition, a meticulous reading of the plaint would show that the plaintiff has alleged defendant no.1 to be his tenant in the suit properties, nonetheless, he has not disclosed the date, month or year of the commencement of tenancy. It is further reflected from the plea in paragraph no.6 that defendant no.1 had got some notices issued from the Rehabilitation Department, which were withdrawn after enquiries. The plaintiff has not mentioned the details of these notices, however, he has relied upon one order dated 29.03.1957 Ex.P2, which has been passed consequent to one notice under Section 7(1) of the Act. It can, thus, be safely inferred that according to the plaintiff, this notice was sent by defendant no.2 at the behest of defendant no.1.
40. Now, the purpose of this notice is to conduct an enquiry, after hearing the persons interested, before declaring any property as evacuee property, within the meaning of Section 2(f) of Act. Once the property is declared as evacuee property, it vests with the Custodian for the State, as is provided under Section 8 of the Act. Admittedly, the plaintiff had appeared before the Custodian and challenged this notice, whereafter, it was withdrawn vide order dated 29.03.1957 Ex.P2. To put in other words, the plaintiff had express knowledge of the proceedings before the Custodian under the Act.
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 23 of 36
41. It is then deducible that the plaintiff also had knowledge of the intention of defendant no.1 to act hostile to the title of plaintiff in the suit properties at least since 29.03.1957. That is to say, even if the fact that defendant no.1 entered into possession of suit properties as tenant of plaintiff were presumed as true, the said possession became adverse to the plaintiff from the year 1957. This is so because by sending the said notice, defendant no.1 stopped acknowledging plaintiff as the rightful owner of suit properties and rather, impliedly denied his title thereto.
42. It is important to highlight here that though the plaintiff has averred that subsequently, defendant no.1 paid rent of Rs.100/- for two months, however, the period of this transaction is not divulged. PW1 Hakim Ghulam Zilani could also not answer as to the same even when specifically asked in his cross-examination. Rather, as discussed hereinbefore, it is reflected from notice Ex.P5 that the suit property no.2 was never let out to defendant no.1 at any point in time. The date, when the defendant no.1 is alleged in the said legal notice to have started encroaching suit property no.2, is also clandestinely not revealed. The non-disclosure of material dates, in the considered opinion of this Court, raises an adverse inference against the case of plaintiff.
43. In these circumstances, the contention of Ld. counsel for plaintiff that the order Ex.P2 is irrelevant for deciding the period of limitation owing to discharge of notice, appears to be untenable. The cause of action for seeking possession first arose in the year 1957. Mere sending of legal notice in such a Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 24 of 36 scenario would not extend the limitation period. The suit having been filed after a period of around 17 years from the date when cause of action first accrued is accordingly, barred by time.
44. Even otherwise, in the light of analysis with respect to issue no.2, the plaintiff has failed to demonstrate that defendant no.1 was in possession of suit properties as his tenant. On the contrary, defendant no.1 has established on the balance of probabilities that he had been in such possession since 1949 as the tenant of the Custodian. In common course of natural events, if a person comes into possession of a property without the permission of its owner, he would be ranked as a trespasser. The possession of a trespasser is adverse ab-initio. Reliance here is again placed upon the judgment of T.Anajanappa (supra):-
"15. .... Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation."
45. On that premise also, the suit is barred by limitation as the same ought to have been filed within 12 years from the inception of possession of defendant in the year 1949. The plaintiff has failed to prove that the suit is within limitation. Hence, issue no.4 is decided against the plaintiff and in favour Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 25 of 36 of defendants.
ISSUE NO.5:-
46. The onus to prove this issue lies on defendant no.2. Section 80 of The Civil Procedure Code, 1908 mandates a prior two months' written notice to government or public officer before suing them for any relief. PW1 Hakim Ghulam Zilani has proved that notice dated 09.10.1974 under Section 80 of CPC Ex.P7 was sent by the plaintiff to defendant no.2. He has further relied upon the postal receipts/AD cards Ex.P8 to Ex.P13 as proof of service. Apart from making a bald averment in its written statement that no such notice was received, defendant no.2 has not made any attempt to discredit the statement of PW1 on this aspect nor any anything to the contrary was suggested to the witness.
47. It is contended by the Ld. counsel for defendant no.1 that plaintiff ought to have summoned the concerned official from the postal office to prove the delivery. However, the Court is not persuaded with this argument in as much as the onus was placed on defendant no.2 to show that the notice was not received by them. Also, Section 27 of The General Clauses Act, 1897 envisages that "Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 26 of 36 effected at the time at which the letter would be delivered in the ordinary course of post."
48. In the aforesaid context, the Hon'ble Supreme Court has held in N. Parameswaran Unni Vs. G. Kannan & Anr. (2017) 5 SCC 737 that:-
"13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1972, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption."
49. Thus, the postal receipts/AD cards Ex.P8 to Ex.P13 on record raise a presumption that the notice Ex.P7 was duly served to defendant no.2 As discussed, defendant no.2 did not lead any evidence to rebut this presumption. That being so, defendant no.2 has not been to establish that compliance of sending notice under Section 80 CPC was not made by the plaintiff. Accordingly, issue no.5 is decided against defendant no.2 and in favour of plaintiff.
ISSUE NO.6 (Relief):-
50. It has now to be ascertained if the plaintiff is entitled to the recovery of possession of suit properties as against the defendants. In view of the finding qua issue no.2, the plaintiff has failed to prove that he is the owner of suit properties. The plaintiff has claimed the relief of possession on the basis of his title and the same has not been proved by him. As a necessary corollary, the plaintiff cannot be granted the possession of suit properties.
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 27 of 36
51. It is submitted by Ld. counsel for plaintiff that the defendants have not led any evidence to show that proper procedure under The Administration of Evacuee Property Act, 1950 was followed by the Custodian for declaring the suit properties as evacuee property in as much as neither the plaintiff left India for Pakistan at any point in time nor he was heard by way of requisite notice under the said Act. Hence, it is urged that the conveyance deeds Ex.DW1/1 and Ex.DW1/2 are void and defendant no.1 is not a bona fide purchaser of suit properties.
52. This Court, however, does not find itself in concurrence with plaintiff because the initial onus was rested upon his shoulders to prove that he was the owner of suit properties. Having remained unsuccessful on that facet, the plaintiff cannot derive any strength from the weakness of the case of defendants. It is no gainsay that the case of plaintiff must be able to stand on its own legs. The Court is fortified in this regard in view of the judgment in Union of India (supra) as hereinunder:-
"The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non- suited."
53. Likewise, it has been recently held in Smriti Debbarma (dead) through LR Vs. Prabha Ranjan Debbarma & Ors. 2023 SCC OnLine SC 9, that:-
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 28 of 36 "31. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.15 Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.16 The weakness of the defence cannot be a justification to decree the suit."
54. It is next propounded by Ld. counsel for plaintiff, by seeking support from the judgments of Shivshankara & Anr. Vs. H.P.Vedavyasa & Other Civil Appeal No.10215/2011 dated 29.03.2023 and Phiraya Lal Kapur Vs. Jia Rani & Anr. AIR 1973 Delhi 186, that where both the parties fail to establish title in a suit for possession, prior possession becomes relevant to decide who has a better title. Therefore, it is asserted that plaintiff had prior possession (until 1960-61) of suit properties than the defendants and the suit ought to be decreed on that ground.
55. Now, there are two types of action which can be brought in law for recovery of possession of immovable property under Section 5 of The Specific Relief Act, 1963:- a) a suit based on title of ownership or proprietary title, and b) a suit based on possessory title. Article 65 of The Limitation Act, 1963 contemplates first kind of suits and Article 64 thereof recognizes the second kind. At this juncture, it is pertinent to refer to the Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 29 of 36 following observations of Hon'ble Apex Court in Poona Ram Vs. Moti Ram (2019)11 SCC 309:-
"15. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. 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. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi."
56. It is thus, clear that the plaintiff can succeed in his claim for possessory title only if he establishes his settled possession over the suit properties. Settled possession implies such possession which has been held continuously for a long period of time. In the considered opinion of this Court, the reliance placed by plaintiff upon the aforesaid judgments of Shivshankara (supra) and Phiraya Lal Kapur (supra) is misconceived as these are distinguishable from the facts and circumstances of the case at hand. In both these judgments, the Court dealt with the case where the cause of action arose on account of long continuous possession of plaintiff and his dispossession from the disputed property. Here, firstly, the plaintiff has nowhere stated that he had actual possession of suit properties before the conveyance deeds were Ex.DW1/1 and Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 30 of 36 Ex.DW1/2 were executed. It is significant to note that as per his own pleadings in plaint, his father Gulam Dustgeer had expired in 1941 and that he himself was living at Dargah Hazrat Kutubuddin Bakhteer Kaki Mehrauli, New Delhi before he shifted to a Camp due to the disturbances which occurred in 1947.
57. The plaintiff's case is that defendant no.1 was already in possession of suit properties as his tenant. Furthermore, since the plaintiff has also not been able to prove the factum of his landlord-tenant relationship with defendant no.1, even his constructive possession cannot be assumed. Hence, the submission of Ld. counsel that plaintiff had prior possession until 1960-61 is devoid of any substance. Having said that, since the plaintiff has failed to show his actual and continuous possession, or any other right of possession, in the suit properties before the possession of defendant no.1, it does not lie in his mouth to assert in himself any possessory title, or better title on that basis, in order to seek the relief of possession.
58. Besides, it is reckoned that the present suit for mere possession is not maintainable for want of prayer for declaration of title. The Court draws strength on that point from the verdict of Hon'ble Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (dead) by LRs & Ors. (2008) 4 SCC 594, wherein it is held by the Hon'ble Supreme Court as under:-
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/ or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 31 of 36 13.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
15. In a suit for permanent injunction to restrain the Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 32 of 36 defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."
59. Adverting to the present case, the case of plaintiff is founded on the grievance that when he asked defendant no.1 to vacate the suit properties through his legal notice dated 18.02.1974 Ex.P5, he received his reply dated 26.02.1974 Ex.DW2/3 that he had purchased the suit properties vide registered conveyance deeds Ex.DW1/1 and Ex.DW1/2. Quite clearly, a cloud has been raised on the title of plaintiff qua the Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 33 of 36 suit properties, which fact was in his knowledge at the time of institution of suit. In such an event, it was incumbent upon the plaintiff to seek declaration of title and that the aforementioned conveyance deeds are null and void, apart from possession.
60. It is the strenuous argument of Ld. counsel for plaintiff that in Anathula Sudhakar (supra), the Hon'ble Supreme Court did not hold that suit for simpliciter possession was not maintainable as plaintiff was in possession of disputed property and had sought injunction against the opposite party. This submission of Ld. counsel holds absolutely no water as though the facts were different from the present case, but the Hon'ble Supreme Court clearly laid down in paragraph 13.3, as reproduced hereinabove, that "where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction". Hence, seeking the relief of mere possession where title is in dispute shall not suffice.
61. As a last-ditch effort, it is contended by the Ld. counsel for plaintiff that declaration is not required to be sought because defendant no.1 has not casted any serious cloud on the title of plaintiff as the conveyance deeds are void. In support thereof, he has placed reliance upon the judgment of Hon'ble Supreme Court in Kurella Naga Druva Vudaya Bhaskara Rao Vs. Galla Jani Kamma Alias Nacharamma (2008) 15 SCC 150. In this judgment, the Hon'ble Supreme Court had an occasion to reiterate the law set forth in Anathula Sudhakar (supra) as below:-
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 34 of 36 "We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration...."
62. While the above-stated law cannot be overlooked, however, it may be emphasized that present is not a case where defendant no.1 has made a mere bald and vexatious claim of his title. In fact, he professes his ownership on the strength of two conveyance deeds Ex.DW1/1 and Ex.DW1/2 qua suit property no.2 and suit property no.1 respectively, which have admittedly, not only been executed by the President of India but are also registered. These documents, conferring legal rights of ownership upon defendant no.1, are legally subsisting even as on date. Ergo, it would be fallacious to hold that the purported title of plaintiff in the suit properties has not been seriously overshadowed by defendant no.1. As a consequence, it is held that the suit is not maintainable in the current form and plaintiff cannot be granted the relief of possession without him seeking the declaration of title and conveyance deeds as null and void.
63. As an upshot of the discussion in foregoing paragraphs, the plaintiff has not only failed to prove on the scale of preponderance of probabilities that he is entitled to the possession of suit property but the suit is also not maintainable in Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 35 of 36 its present form. Resultantly, the suit of plaintiff is hereby dismissed. Parties to bear their own costs.
64. Let the decree sheet be drawn up accordingly.
65. File be consigned to record room after due compliance.
Pronounced in open court: Digitally signed by BHARTI
Dated: 21.12.2023 BHARTI GARG GARG
Date: 2023.12.21 21:43:23
+05'30'
(Bharti Garg)
Civil Judge-07, Central,
Tis Hazari Courts, Delhi
Note: This judgment contains thirty-six pages and all the pages have been checked and signed by me.
BHARTI Digitally signed by
BHARTI GARG
GARG Date: 2023.12.21
21:43:46 +05'30'
(Bharti Garg)
Civil Judge-07, Central,
Tis Hazari Courts, Delhi
Gulam Mahboon Subhani (deceased) through LRs Vs. Dr. Nand Lal (deceased) through LRs Civil Suit No:- 96/06 Page 36 of 36