Delhi District Court
Rita Jain vs The Govt Of Nct Of Delhi on 29 November, 2023
IN THE COURT OF SH RAMESH KUMAR-II,
ADDITIONAL DISTRICT JUDGE-01
SHAHDARA DISTRICT, KARKARDOOMA COURTS:
DELHI
CS No.650/2020
In the matter of:-
Smt. Rita Jain
W/o Sh. Rajesh Kumar Jain
R/o J-8/1, West Jyoti Nagar,
Paras Apartments, Delhi-110094.
........Plaintiff
Versus
1. The Government of NCT of Delhi
Through its Chief Secretary
Secretariat Building,
ITO, New Delhi.
2. The SDM (Mr. Debasis Biswal)
Shahdara District, Bunkar Bhawan,
DC Office, Nand Nagri, Delhi-110093.
3. The S.H.O.
P.S. Shahdara, Delhi-110032.
4. East District Municipal Corporation
Through its Commissioner
Udhyog Bhawan, Patparganj Industrial Area,
Delhi-110092.
.....Defendants
Date of Institution : 17.12.2020
Date of Pronouncement : 29.11.2023
Decision : Decreed
SUIT FOR DECLARATION, MANDATORY AND
PERMANENT INJUNCTION
JUDGMENT
CS No.650/2020 Page no. 1 of 28 1 The plaintiff has filed the present suit for declaration,
mandatory and permanent injunction against the defendants no.1 i.e. The Govt. of NCT of Delhi through its Chief Secretary; 2 the defendant no.2 i.e. The SDM, Shahdara Distt., DC Office, Nand, Nagri, Delhi-110053; the defendant no.3 i.e. The S.H.O., P.S. Shahdara, Delhi & the defendant no.4 i.e. East District Municipal Corporation, through its Commissioner, with seeking the following reliefs:
(a) To pass a decree of declaration in favour of the plaintiff and against the defendants thereby declaring the plaintiff lawful owner by virtue of adverse possession of property bearing no.
1/1356/5811/298-A, (old no.1/1356/5811/218-A), Balbir Nagar, Shahdara, Delhi-110032 out of Khasra no.218, built up in a measuring area of 110 sq. yds. being in uninterrupted physical possession since 1998 against the defendants as shown in the red color in the site plan attached, in the interest of justice.
(b) To pass a decree of mandatory injunction in favour of the plaintiff and against the defendant no.4 EDMC (now MCD) and thereby directing the defendant no.4 to mutate in the name of the plaintiff as lawful owner of property no.1/1356/5811/298-A, (old no.1/1356/5811/218-A), Balbir Nagar, Shahdara, Delhi-110032 out of Khasra no. 218, built up in a measuring area of 110 Sq. Yds. as shown in the red color in the site plan attached, in the interest of justice.
(c) To pass decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their officials, subordinates, employees permanently from disposing the plaintiff from the suit property bearing no. 1/1356/5811/298-A, (old no.1/1356/5811/218-A), Balbir Nagar, Shahdara, Delhi-110032, out of Khasra no.218, built up in a CS No.650/2020 Page no. 2 of 28 measuring area of 110 sq. yds., as shown in the red color in the site plan attached and from making any kind of interference/interruption in her peaceful use and possession and from demolishing the same and from creating any third party interest therein, in the interest of justice.
It is further averred in the plaint that the plaintiff has been in use and occupation and possession of property bearing No. 1/1356/5811/298A, (old No.1/1356/5811/218A), Balbir Nagar, Shahdara, Delhi-110032 (hereinafter be referred to as 'suit property'), out of Khasra No.218 built up in the measuring area of 110 sq. yds. since 1998 which is shown in red colour in the site plan attached being the owner by way of adverse possession without any interruption by any of the authority dealing with the administration and management of defendants No.1 to 3 or any other person. It is further averred that the aforesaid suit property consists one room and hall and toilet therein and the same is being used as store of goods and is occupied by the plaintiff and she has been paying the house tax to the defendant No. 4 since 2007 and is also having electricity connection installed therein in her name. The plaintiff had purchased this property from Sh. Vinay Rathi S/o Late Sh. Prem Rattan Rathi for a consideration of Rs.2,00,000/- and she had paid Rs.1,50,000/- towards sale consideration vide cheque bearing No.985301, dated 06.10.1998 drawn on Vijaya Bank, Loni Road, Delhi-110032 and paid Rs.50,000/- in cash to him but he did not issue the receipt and had handed over the possession of the aforesaid suit property which was built up by the plaintiff and Sh. Vinay Rathi has been avoiding to execute sale documents saying that he has given the possession to the plaintiff and she is occupying the same and he has no time being a big businessman. It is further averred that CS No.650/2020 Page no. 3 of 28 the adjoining property/plot bearing No.1356/5811 bearing out of Khasra No.218 was sold on 22.12.1998 by Sh. Vinay Rathi to Sh. Sukhpal Jain in a measuring area of 110 sq. yds. for a consideration of Rs.2,00,000/- and the property/plot of the plaintiff is mentioned therein in the East of his plot showing the name of husband of plaintiff, the photocopy of sale deed of Sh. Sukhpal has been obtained from him now. It is further averred that the defendants have got no right, title or interest in the suit property of the plaintiff which falls in Khasra No. 218 and is not the khasra of defendants. It is further averred that on 03.12.2020, the officials/employees of defendant No.1 i.e. defendant No.2 and its staff and the employees/police officials defendant No.3 and his subordinates posted at P.S. Shahdara came to the suit property along with officials of defendant No. 4 and they found the plaintiff in possession of the suit property but the defendant No.3 called the husband of the plaintiff to the land of M/s. G.D. Rathi Steel Ltd. saying that he is demarcating and he in collusion with some persons having no right, title or interest to the suit property got written under terror of him and police on a paper dictating to him that he would vacate the suit property saying that if he would not write then shall be put behind bar whereas the plaintiff is the owner and in possession of the suit property which fact of getting written under threats by defendants No.2 with the help of defendant No.3 came to the knowledge from the husband which act of the defendants is all illegal and against the cannon of law. The plaintiff is in possession, use and occupation of the property since 1998 without any interruption from any person as owner and is owner by way of adverse possession. It is further averred that the officials/employees of the defendants in connivance with each other are coming for the last three days CS No.650/2020 Page no. 4 of 28 i.e. prior to filing the suit on and off to the suit property and are terrorizing the plaintiff and her husband and labour. Not only this the employees/police officials of P.S. Shahdara/defendant No.3 are also terrorizing the labour and have taken their photo by getting removed their mask and have threatened to involve in false cases if they do not fled away. The defendants are also threatening to dispossess the plaintiff under force and violence and to demolish the suit property of the plaintiff and to create third party interest therein by handing over the possession to anyone illegally for some illegal motive. It is further averred that no notice of any kind has been given to the plaintiff nor any details have been provided why they are trying to dispossess the plaintiff without any due process of law. There is no complaint so far against the plaintiff by any of the authority including defendants No.1 to 4 or their related persons against the plaintiff. It is further averred that the plaintiff is entitled to get herself declared owner of the property by virtue of adverse possession of the suit property after the verdict of the Hon'ble Apex Court and guidelines of the judgments and is entitled to get her name mutated as owner in the record of defendant No.4. The defendants having no right and authority to dispossess the plaintiff, even under the law as protected by the Hon'ble Apex Court as such the present suit has been preferred by the plaintiff having no other suitable and efficacious remedy and the defendants are required to be restrained permanently from dispossessing the plaintiff from suit property and also from making any kind of interference in her peaceful possession, use and occupation and from demolishing the same.
2 The summons of the suit and applications were served upon the defendants and they did not file any written statement CS No.650/2020 Page no. 5 of 28 and the opportunity of filing written statement by defendant no.4 was closed vide order dated 26.05.2022 and the defendants no.1 to 3 were proceed ex-parte vide order dated 31.10.2022. None of the defendants no.1 to 4 have claimed any right, title or interest in the suit property. Thereafter matter was listed for plaintiff's evidence. However, it is a matter of record that on 07.02.2023, one Ms. Jyoti Rana, Advocate appeared for applicant/proposed defendant Md. Afzal Khan and filed an application under Order I Rule 10 read with Section 151 CPC for impleading Md. Afzal Khan as defendant in the present suit. On 18.10.2023, Ms. Jyoti Rana, Advocate also filed another application under Section 151 CPC for seeking permission to file additional documents and exemption from filing original/certified copies of documents filed alongwith application under Order I Rule 1 CPC. After hearing arguments on both the applications, the same were dismissed vide order dated 06.11.2023. Thereafter, matter was again listed for ex parte plaintiff's evidence. 3 In support of plaintiff's case, Smt. Rita Jain i.e. plaintiff has examined as many as four witnesses. She has examined herself as PW-1 and she has tendered her affidavit as Ex.PW1/A. The plaintiff has also examined Sh. Rajesh Kumar Jain as PW-2 who has also tendered his affidavit Ex.PW2/A. The plaintiff has also examined Sh. Sandeep Jain as PW-3 who has also tendered his affidavit Ex.PW3/A. The plaintiff has also examined Sh. Barjesh Kumar Jain as PW-4 who has also tendered his affidavit Ex.PW4/A. 4 The plaintiff has proved the site plan which is Ex.PW-1/1; photocopy of her aadhaar card which is Ex.PW-1/2; photocopy of electricity bill which is Ex.PW-1/3; photocopy of house tax bill/receipt of suit property since 2007 till 2021 issued by CS No.650/2020 Page no. 6 of 28 defendant no.4 which are as Ex.PW-1/4 to Ex.PW-1/7; photocopy of cheque dated 06.10.1998 of Rs.1,50,000/- in respect of purchase of property which is Ex.PW-1/8; photocopy of statement of clearance of cheque which is Ex.PW-1/9; photocopy of sale deed of Sukhpal which is Ex.PW-1/10, which is the adjoining property of the property of plaintiff in suit; photographs of showing possession of plaintiff which are ExPW- 1/11 (colly. 5 photographs); the payment certificate dated 20.11.2023 issued by Bank of Baroda of Rs.1,50,000/- paid on 08.10.1998 vide cheque no.985301 in favour of Sh. Vinay Rathi which is Ex.PW-1/12. It is submitted that the plaintiff is still paying house tax to the defendant no.4 i.e. MCD for the year 2021-2022, 2022-2023 and 2023-2024 which are Ex.PW-1/14 & Ex.PW-1/15 and the plaintiff also has proved special power of attorney executed by her in favor of her husband Sh. Rajesh Kumar Jain which is Ex.PW-1/16.
5 The PW-2 Sh. Rajesh Kumar Jain has also relied upon the aforesaid documents being the husband of PW-1. 6 PW-3 Sh. Sandeep Kumar Jain has also stated that he knows the plaintiff and suit property has been in use and occupation and possession of plaintiff and his family and he has been visiting the property since 1998 and neither the defendants have got no right, title or interest to the suit property nor any other person except the plaintiff is in possession of suit property since 1998 which is shown in Ex.PW-1/1.
7 PW-4 Sh. Barjesh Kumar Jain has also deposed that he knows the plaintiff whose house/property in suit which is out of Khasra no.218 built up in measuring area of 110 sq. yards since 1998 is beside his house/property which was purchased by his father Sh. Sukhpal Jain on 22.12.1998 through registered sale CS No.650/2020 Page no. 7 of 28 deed Sh. Vinay Rathi. His father has expired on 20.05.2019 and he is co-owner of this property purchased by his father and has also deposed that it is mentioned in the sale deed of his father that in the East side of the property purchased by this father showing the plot of the plaintiff in the name of her husband Sh. Rajesh Kumar Jain which is already Ex.PW-1/10 and he proved his Adhaar card as Ex.PW-4/1 (OSR) and photocopy of death certificate of his father is Ex.PW4/3.
8 After conclusion of plaintiff's evidence, matter was listed for final arguments.
9 Arguments were heard at length on behalf of the plaintiff. 10 During the course of arguments, ld. Counsel for plaintiff argued that the plaintiff is entitled to get herself declared owner of the property by virtue of adverse possession of the suit property after the verdict of the Hon'ble Apex Court and guidelines of the judgments and is entitled to get her name mutated as owner in the record of defendant No.4. Ld. Counsel for plaintiff further submitted that the testimonies of PWs as well as documents available on judicial record prove that the plaintiff is in continuous possession of the suit property since 06.10.1998, hence the present suit be decreed in favour of the plaintiff and against the defendants. He further submitted that the defendants are having no right and authority to dispossess the plaintiff, even under the law as protected by the Hon'ble Apex Court as such the present suit has been preferred by the plaintiff having no other suitable and efficacious remedy and the defendants are required to be restrained permanently from dispossessing the plaintiff from suit property and also from making any kind of interference in her peaceful possession, use and occupation and from demolishing the same.
CS No.650/2020 Page no. 8 of 28 11 Ld. Counsel for plaintiff has relied upon various
judgments of the Hon'ble Supreme Court of India and Hon'ble High Courts, in support of his contentions.
(a) Balkrishan Vs. Satyaprakash & Ors. 2001 (2) SCC 498;
(b) S.M. Karim Vs. Bibi Sakina (1964) 5 SCR 780;
(c) Des Raj And Ors. Vs. Bhagat Ram (Dead) by LRs And Ors. (2007) 9 SCC 641;
(d) Nair Service Society Ltd. Vs. K.C. Alexander, AIR 1968 SC 1165;
(e) Somnath Berman Vs. Dr. S.P. Raju & Anr., AIR 1970 SC 846;
(f) Padminibai Vs. Tangavva & Ors., AIR 1979 SC 1142;
(g) Mohammed Fateh Nasib Vs. Swarup Chand Hukum Chand & Anr., AIR 1948 PC 78;
(h) Mandal Revenue Officer Vs. Goundla Venkaiah & Anr., (2010) 2 SCC 461.
(i) State of Rajasthan Vs. Harphool Singh, 2000 (5) SCC 652.
(j) Lala Hem Chand Vs. Lala Pearey Lal & Ors., AIR 1942 PC 64; and
(k) Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Ors., (2009) 16 SCC 517.
12 I have perused the record including judgments relied upon by ld. Counsel for plaintiff.
13 It is settled law that the person, who claims to be the owner of the property by way of adverse possession, has to prove that he/she is in continuous possession of the suit property for more than 12 years for which he/she claims to be the owner of the same by way of adverse possession without any interruption from any person in the present case. It is proved from the statement of the witnesses as well as documents on record that the plaintiff is in continuous possession of the suit property since 06.10.1998 and is also occupying the suit CS No.650/2020 Page no. 9 of 28 property having her construction and is paying the house tax since 2007 and has filed the suit on 10.12.2020 before the MCD i.e. defendant no.4 which proves that she is in uninterrupted possession of the suit property more than 12 years before filing the suit and it is also clear from the documents that she is also paying house tax to the defendant no.4 and receipts issued by defendant no.4 even after filing the suit till date. The possession of the plaintiff of her suit property is also reflected from the evidence of her husband (PW-2), Sh. Sandeep Kumar Jain (PW-
3) and Sh. Barjesh Kumar Jain (PW-4) from his documents of the sale deed in the name of his father (Ex.PW-1/10) wherein the suit plot/property is shown in the East in the sale deed of his father (showing in the name of husband of plaintiff as Rajesh Kumar Jain) and the property by the father of PW-4 was purchased after the use and occupation of the suit property by the plaintiff and her husband on 22.12.1998. It is also proved that the plaintiff paid amount by cheque of Rs.1,50,000/- for purchasing the suit property to Sh. Vinay Rathi which is proved by photocopy of cheque, statement of account and payment certificate dated 20.11.2023 issued by Bank of Baroda which is Ex.PW-1/12.
14 This Court had granted the interim order/stay regarding suit property in favour of plaintiff and even none of the defendants claimed the suit property of themselves rather the defendants have threatened the plaintiff on 03.12.2020 to dispossess the plaintiff and started coming to the suit property and terrorized the plaintiff and her husband under force and to demolish her property and to create third party interest therein by handing over the possession to anyone illegally for illegal motives.
CS No.650/2020 Page no. 10 of 28 In Balkrishan Vs. Satyaprakash & Ors. 200) (2) SCC 498, decided by a Coordinate Bench, the plaintiff filed a suit for declaration of title on the ground of adverse possession and a permanent injunction. This Court considered the question, whether the plaintiff had perfected his title by adverse possession. This Court has laid down that the law concerning adverse possession is well settled, a person claiming adverse possession has to prove three classic requirements i.e. nec-nec vi, nec clam and nec precario. The trial court, as well as the First Appellate Court, decreed the suit while the High Court dismissed it. This Court restored the decree passed by the trial court decreeing the plaintiff suit based on adverse possession and observed:-
"6. The short question that arises for consideration in this appeal is: whether the High Court erred in holding that the appellant had not perfected his title by adverse possession on the ground that there was an order of a Tahsildar against him to deliver possession of the suit land to the auction purchasers.
7. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three "neck" nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S.M. Karim vs Bibi Sakina [1964] 6 SCR 780 speaking for this Court Hidayatullah, J. (as he then was) observed thus:-
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."
In Des Raj and Ors. v. Bhagat Ram (Dead) by LRs and CS No.650/2020 Page no. 11 of 28 Ors., (2007) 9 SCC 641, a suit filed by the plaintiff for declaration of title and also for a permanent injunction based on adverse possession. The Courts below decreed the suit of the plaintiff on the ground of adverse possession. The same was affirmed by this Court. This Court considered the change brought about in the Act by Articles 64 and 65 vis-à-vis to Articles 142 and 144 Issue No.1 was framed whether the plaintiff becomes the owner of the suit property by way of adverse possession? This Court has observed that a plea of adverse possession was indisputably be governed by Articles 64 and 65 of the Act. This Court has discussed the matter thus:-
"20. A plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act".
22. The mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in suit exclusively and not for and on behalf of other co-owners also is evident from the fact that the defendants/appellants themselves had earlier filed two suits. Such suits were filed for partition. In those suits the defendants/appellants claimed themselves to be co-owners of the plaintiff A bare perusal of the judgments of the courts below clearly demonstrates that the plaintiff had even therein asserted hostile title claiming ownership in himself. The claim of hostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants. They allowed the first suit to be dismissed in the year 1977. Another suit was filed in the year 1978 which again was dismissed in the year 1984. It may be true, as has been contended on behalf of the appellants before the courts below, that a co-owner can bring about successive CS No.650/2020 Page no. 12 of 28 suits for partition as the cause of action, therefor, would be a continuous one. But, it is equally well settled that pendency of a suit does not stop running of 'limitation' The very fact that the defendants despite the purported entry made in the revenue settlement record of rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly goes to show that even prior to institution of the said suit the plaintiff/respondent had been in hostile possession thereof.
24. In any event the plaintiff made his hostile declaration claiming title for the property at least in his written statement in the suit filed in the year 1968. Thus, at least from 1968 onwards, the plaintiff continued to exclusively possess the suit land with a knowledge of the defendants/appellants.
26. Article 65 of the Limitation Act, 1963, therefore, would in a case of this nature have its role to play, if not from 1953, but at least from 1968. If that be so, the finding of the High Court that the respondent perfected his title by adverse possession and ouster cannot be said to be vitiated in law.
28. We are also not oblivious of a recent decision of this Court in Govindammal v. R. Perumal Chettiar and Ors.. (2006) 11 SCC 600 wherein it was held: (SCC p. 606, para 8) "In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case."
31. We, having regard to the peculiar facts obtaining in the case, are of the opinion that the plaintiff/respondent had established that he acquired title by ousting the CS No.650/2020 Page no. 13 of 28 defendant/appellants by declaring hostile title in himself which was to the knowledge of his co-sharers."
In Nair Service Society Ltd. Vs. K.C. Alexander, AIR 1968 SC 1165, the plaintiff filed a suit claiming to be in possession for over 70 years. The plaintiff claimed possession of the excess land from the society, its Manager and Defendants Nos. 3 to 6. The society denied the rights of the plaintiff to bring a suit for ejectment or its liability for compensation. Alternatively, the society claimed the value of improvements. The main controversy decided by the High Court was whether the plaintiff can maintain a suit for possession without proof of title. This court observed that in case the rightful owner does not come forward within the period of limitation his right is lost, and the possessory owner acquires an absolute title. The plaintiff was in de facto possession and was entitled to remain in possession and only the State could evict him. The State was not impleaded as a party in the case. The action of the society was a violent invasion of his possession and in the law, as it stands in India, the plaintiff can maintain a possessory suit under the provisions of the Specific Relief Act, 1963. The plaintiff has asserted that he had perfected his title by "adverse possession" but he did not join the State in a suit to get a declaration. He may be said to have not rested the suit on the acquired title. The suit was thus limited to recovery of possession from one who had trespassed against him. The Court observed that for the plaintiff to maintain suit based on adverse possession, it was necessary to implead the State Government i.e. the owner of the land as a party to the suit. A plaintiff can maintain a suit based on adverse possession as he acquires absolute title. The Court observed as under that:-
CS No.650/2020 Page no. 14 of 28 "(17) In our judgment this involves an incorrect approach to
our problem. To express our meaning we may begin by reading 1907 AC 73 to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly. "It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title." Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law, as it stands in India the plaintiff could maintain a possessor suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. As this was a suit of latter kind title could be examined. But whose title? Admittedly neither side could establish title The plaintiff at least pleaded the statute of Limitation and asserted that he had perfected his title by adverse possession. But as he did not join the State in his suit to get a declaration, he may be said to have not rested his case on an acquired title. His suit was thus limited to recovering possession from one who had trespassed against him. The enquiry thus narrows to this, did the Society have any title in itself, was it acting under authority express or implied of the CS No.650/2020 Page no. 15 of 28 true owner or was it just pleading a title in a third party? To the first two questions we find no difficulty in furnishing an answer. It is clearly in the negative. So the only question is whether the defendant could plead that the title was in the State? Since in every such case between trespassers the title must be outstanding in a third party a defendant will be placed in a position of dominance. He has only to evict the prior trespasser and sit pretty pleading that the title is in someone else As Erle J put it in Burling v. Read (1848) 11 QB 904 parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut and occupying it before morning. This will be subversive of the fundamental doctrine which was accepted always and was reaffirmed in 1907 AC 73. The law does not, therefore, countenance the doctrine of 'findings keepings."
(22) The cases of the Judicial Committee are not binding on us but we approve of the dictum in 1907 AC 73. No subsequent case has been brought to our notice departing from that view. No doubt a great controversy exists over the two cases of (1849) 13 QB 945 and (1865) 1 QB 1 but it must be taken to be finally resolved by 1907 AC 73. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in 1907 AC 73 and may be taken to be declaratory of the law in India. We hold that the suit was maintainable." (emphasis supplied) In Somnath Berman Vs. Dr S.P. Raju & Anr., AIR 1970 SC 846, the Hon'ble Apex Court has recognized the right of a person having possessory title to obtain a declaration that he was the owner of the land in a suit and an injunction restraining the defendant from interfering with his possession. This Court CS No.650/2020 Page no. 16 of 28 has further observed that section 9 of the Specific Relief Act, 1963 is in no way inconsistent with the position that as against a wrong doer, prior possession of the plaintiff, in an action of ejectment is sufficient title even if the suit is brought more than six months after the act of dispossession complained of and that the wrong- doer cannot successfully resist the suit by showing that the title and the right to possession vested in a third party. This Court has observed as under:-
"10. In Naravana Row Vs. Dharmachar, (1903) ILR 26 Mad 514 a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ held that possession is, under the Indian, as under the English law, good title against all but the true owner. Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrongdoer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person. The same view was taken by the Bombay High Court in Krishnarao Yashwant Vs. Vasudev Apaji Ghotikar, (1884) ILR 8 Bom 871 That was also the view taken by the Allahabad High Court (see Umrao Singh Vs. Ramji Das, ILR 36 All 51. Wali Ahmad Khan Vs. Ahjudhia Kandu, (1891) ILR 13 All 537). In Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat 222 the Patna High Court adhered to the view taken by the Madras, Bombay and Allahabad High Courts. The contrary view taken by the Calcutta High Court in Debi Churn Boldo v. Issur Chhunder Manjee, (1883) ILR 9 Cal 39; Ertaza Hossein v. Bany Mistry, (1883) ILR 9 Cal 130, Purmeshur Chowdhry v. Brijo Lall Chowdhry, (1890) CS No.650/2020 Page no. 17 of 28 ILR 17 Cal 256 and Nisa Chand Gaita v. Kanchiram Bagani. (1899) ILR 26 Cal 579, in our opinion does not lay down the law correctly."
It is apparent from the aforesaid decision that a person is entitled to bring a suit of possessory title to obtain possession even though the title may vest in a third person. A person in the possessory title can get injunction also, restraining the defendant from interfering with his possession.
14. Given the aforesaid, a question to ponder is when a person having no title, merely on the strength of possessory title can obtain an injunction and can maintain a suit for ejectment of a trespasser. Why a person who has perfected his title by way of adverse possession cannot file a suit for obtaining an injunction protecting possession and for recovery of possession in case his dispossession is by a third person or by an owner after the extinguishment of his title. In case a person in adverse possession has perfected his title by adverse possession and after the extinguishment of the title of the true owner, he cannot be successfully dispossessed by a true owner as the owner has lost his right, title and interest.
In Padminibai v. Tangavva & Ors., AIR 1979 SC 1142 a suit was filed by the plaintiff for recovery of possession on the basis that her husband was in exclusive and open possession of the suit lands adversely to the defendant for a period exceeding 12 years and his possession was never interrupted or disturbed. It was held that he acquired ownership by prescription. The suit filed within 12 years of his death was within limitation. Thus, the plaintiff was given the right to recover possession based on adverse possession as Tatya has acquired ownership by adverse possession. This Court has observed thus:-
CS No.650/2020 Page no. 18 of 28 "1. Tatya died on February 2, 1955. The respondents. Tangava and Sundra Bai are the co widows of Tatya. They were co- plaintiffs in the original suit.
11. We have, therefore, no hesitation in holding in agreement with the courts below that Tatya had acquired title by remaining in exclusive and open possession of the suit lands adversely to Padmini Bai for a period far exceeding 12 years, and this possession was never interrupted or disturbed. He had thus acquired ownership by prescriptions."
In Mohammed Fateh Nasib v. Swarup Chand Hukum Chand & Anr., AIR 1948 PC 76, Privy Council considered the question of adverse possession by a plaintiff in the plaint, his case was based upon continuous, open, exclusive and undisturbed possession. He averred that he had acquired an indefeasible title to the suit property by adverse possession against the whole world. In 1928, he was surreptitiously dispossessed from the suit property. The question arose for consideration whether the plaintiff remained in adverse possession for 12 years and whether it was adverse to the waqf. The Privy Council agreed with the findings of the High Court that the "plaintiff and his predecessors in interest had remained in possession of the suit property for more than 12 years before 1928 to acquire a title under section 28 of the Act and the plaintiff was not a mere trespasser. The court further held that title by the adverse possession can be established against waqf property also. The Privy Council observed. "On that basis the first question to be determined is whether the plaintiff proved continuous, open exclusive and undisturbed possession of the property in suit for 12 years and upwards before 1928 when he was dispossessed. that being the relevant date under Article 142 CS No.650/2020 Page no. 19 of 28 of the Limitation Act. If that question is answered in the affirmative then the further question arises whether such possession was adverse to the waqf.
Their Lordships agree that this is the correct test to apply and having examined the evidence, oral and documentary, they agree with the finding of the High Court that the plaintiff and his predecessors in interest had been in possession of the suit property for more than 12 years prior to 1928 so as to acquire a title under Section 28 of the Limitation Act. It is no doubt true. as the learned Subordinate Judge held that the claim of a mere trespasser to title by adverse possession will be confined strictly to the property of which he has been in actual possession. But that principle has no application in the present case The plaintiff is not a mere trespasser; he himself purchased the property for a large sum and Aberjan, upon whose possession the claim ultimately rests, was put into possession by an order of the Court, whether or not such order was rightly made. Apart from this, their Lordships think that the character of the possession established by the plaintiff was adequate to found title even in a trespasser.
Their Lordships feel no hesitation in agreeing with the High Court that adverse possession by the plaintiff and his predecessors in interest has been proved for the requisite period The only question which then remains is whether such possession was adverse to the waqf. It is not disputed that in law a title by adverse possession can be established against waqf property, but it is clear that a trustee for a charity entering into possession of property belonging to the charity cannot, whilst remaining a trustee, change the character of his possession, and assert that he is in possession as a beneficial owner" (emphasis CS No.650/2020 Page no. 20 of 28 supplied). The plaintiff's title was declared based on adverse possession.
There is an acquisition of title by adverse possession as such, such a person in the capacity of a plaintiff can always use the plea in case any of his rights are infringed including in case of dispossession. In Mandal Revenue Officer v. Goundia Venkaiah & Anr (2010) 2 SCC 46) this Court has referred to the decision in State of Rajasthan v. Harphool Singh (2000) 5 SCC 652 in which the suit was filed by the plaintiff based on acquisition of title by adverse possession. This Court has referred to other decisions also in Annakili v. A. Vedanayagam (2007) 14 SCC 308 and PT Munichikkanna Reddy v. Revamma (2007) 6 SCC 59. It has been observed that there can be an acquisition of title by adverse possession.
It has also been observed that adverse possession effectively shifts the title already distanced from the paper owner to the adverse possessor. Right thereby accrues in favour of the adverse possessor. This Court has considered the matter thus:-
"48. In State of Rajasthan v. Harphool Singh, 2000 (5) SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff/respondent could not substantiate his claim of CS No.650/2020 Page no. 21 of 28 perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below:
(SCC p. 660, para 12) "12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, adverted to the ordinary classical requirement that it should be nec vi, nec clam, nec precario that is the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus."
In Lala Hem Chand v. Lala Pearey Lal & Ors.. AIR 1942 PC 64, the question arose of the adverse possession where a trustee had been in possession for more than 12 years under a trust which is void under the law, the Privy Council observed that if the right of a defendant owner is extinguished the plaintiff acquires it by adverse possession. In case the owner suffers his right to be barred by the law of limitation, the practical effect is the extinction of his title in favour of the party in possession. The relevant portion is extracted hereunder:-
".....The inference from the evidence as a whole is irresistible that it was with his knowledge and implied consent CS No.650/2020 Page no. 22 of 28 that the building was consecrated as a Dharmasala and used as such for charitable and religious purposes and that Lala Janaki Das, and after him, Ramchand, was in possession of the property till 1931. As forcibly pointed out by the High Court in considering the merits of the case, "during the course of more than 20 years that this building remained in the charge of Janaki Das, and on his death in that of his son, Ramchand, the defendant had never once claimed the property as his own or objected to its being treated as dedicated property" This Board held in ('66) 11 M.I.A. 345: 7 W.R. 21: 1 Suther. 676: 2 Sar. 284 (P.C.), Gunga Gobindas Mundal v. The Collector of the Twenty Four Pergunnahs, at page 361, that if the owner whose property is encroached upon suffers his right to be barred by the law of limitation the practical effect is the extinction of his title in favour of the party in possession." Section 28, Limitation Act, says:
"At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished" Lala Janaki Das and Ramchand having held the property adversely for upwards of 12 years on behalf of the charity for which it was dedicated, it follows that the title to it, acquired by prescription, has become vested in the charity and that of the defendant, if he had any, has become extinguished by operation of S. 28. Limitation Act. Their Lordships have no doubt that the Subordinate Judge would also have come to the conclusion that the title of the defendant has become barred by limitation, had he not been of the view that Lala Janaki Das retained possession of the suit property as trustee for the benefit of the author of the trust and his legal representatives, and that presumably S. 10, Limitation Act.
CS No.650/2020 Page no. 23 of 28 would apply to the case, though he does not specifically refer to the section. For the above reasons, their Lordships hold that the plaintiffs have established their title to the suit property by adverse possession for upwards of 12 years before the defendant obtained possession of it, and since the suit was brought in January 1933, within so short a time as two years of dispossession, the plaintiffs are entitled to recover it from the defendant, whose title to hold it if he had any has become extinct by limitation, in whichever manner he may have obtained possession permissively or by trespass."
The operation of the statute of limitation in giving a title is merely negative; it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him. Perry v Clissold (1907) AC 73 has been referred to in Nair Service Society Ltd KC Alexander (supra) in which it has been observed that it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the original owner, and if the original owner does not come forward and assert his title by the process of law within the period prescribed under the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. In Ram Doan (Dead) through LRs v. Urban Improvement Trust, (2014) 8 SCC 902, this Court has observed thus:-
"11. It is settled position of law laid down by the Privy Council in Perry v. Clissold 1907 AC 73 (PC) (AC p. 79) It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the CS No.650/2020 Page no. 24 of 28 ordinary rights of ownership has a perfectly good title against all the world but the rightful owner And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title" The above statement was quoted with the approval by this Court in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165. Their Lordships at para 22 emphatically stated: (AIR p. 1175) 22 The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold 1907 AC 73 (PC).""
In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors. (2009) 16 SCC 517 relying on T. Anjanappa v. Somalingappa (2006) 7 SCC 570, observed that title can be based on adverse possession. This Court has observed thus:-
"23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa 2006 (7) SCC 570.
The court observed that a person who buses 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 (SCC p.577, para 20) 20 The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that should be evidence of the adverse possessor actually informing the real CS No.650/2020 Page no. 25 of 28 owner of the former's hostile action."
In Sarungadeva Periya Matam v. Ramaswami Gounder, (supra), the plaintiff's suit for recovery of possession was decreed against Math based on the perfection of the title by way of adverse possession, he could not have been dispossessed by Math. The Court held that under Article 144 read with Section 28 of the Limitation Act, 1908, the title of Math extinguished in 1927 and the plaintiff acquired title in 1927. In 1950, he delivered possession, but such delivery of possession did not transfer any title to Math. The suit filed in 1954 was held to be within time and decreed.
53. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on 'title' as envisaged in the opening part under Article 65 of Act. Under Article 65. the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonym with adverse possession."
15 In the present case any private person has not interrupted the possession of the plaintiff till date since 1998 and the possession of the plaintiff is continuous and is known to everyone and even Vinay Rathi had not interrupted or interfered in the possession of the plaintiff in the suit property and as per section 27 of Limitation Act even every person or telling of CS No.650/2020 Page no. 26 of 28 himself true owner is barred from taking any action of recovery of possession against a person who is in continuous possession of a property more than 12 years.
16 Therefore, in view of the discussion of the abovesaid legal precedents, this court is of the opinion that the plaintiff by virtue of documentary and oral evidence has been able to prove her ownership qua the suit property by way of adverse possession. Accordingly, the present suit is hereby decreed in favour of plaintiff and against the defendant with following reliefs:-
a) Plaintiff is entitled for decree of declaration against the defendants thereby declaring the plaintiff as lawful owner by virtue of adverse possession of suit property bearing no.1/1356/5811/298-A, (old no.1/1356/5811/218-A), Balbir Nagar, Shahdara, Delhi-110032, out of Khasra no.218, built up in a measuring area of 110 sq. yds. being in uninterrupted physical possession since 1998 against the defendants as shown in the red color in the site plan Ex.PW1/1 attached.
(b) Plaintiff is also entitled for decree of mandatory injunction against the defendant no.4 i.e. EDMC (now MCD) and thereby directing the defendant no.4 to mutate in the name of the plaintiff as lawful owner of suit property no.1/1356/5811/298-A, (old no. 1/1356/5811/218-A), Balbir Nagar, Shahdara, Delhi-
110032, out of Khasra no.218, built up in a measuring area of 110 sq. yds. as shown in the red color in the site plan attached.
(c) Plaintiff is also entitled for decree of permanent injunction against the defendants thereby restraining the defendants, their officials, subordinates, employees permanently from disposing the plaintiff from the suit property bearing no.1/1356/5811/298- A, (old no. 1/1356/5811/218-A), Balbir Nagar, Shahdara, Delhi- 110032, out of Khasra no.218, built up in a measuring area of CS No.650/2020 Page no. 27 of 28 110 sq. yds., as shown in the red color in the site plan attached and from making any kind of interference/interruption in her peaceful use and possession and from demolishing the same and from creating any third party interest therein. 17 No order as to costs. Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
(Typed to the dictation directly, corrected and Digitally signed by RAMESH pronounced in open court on 29.11.2023). KUMAR RAMESH Date:
KUMAR 2023.11.29
16:36:55
+0530
(RAMESH KUMAR-II)
ADDL. DISTRICT JUDGE-01
SHAHDARA DISTRICT
KARKARDOOMA COURTS
DELHI
CS No.650/2020 Page no. 28 of 28