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Badri Prasad & Ors vs Delhi Development Authority on 24 December, 2021

Author: V. Kameswar Rao

Bench: V. Kameswar Rao

                           $~8
                           *   IN THE HIGH COURT OF DELHI AT NEW DELHI

                           +     RFA 441/2021 & CAV 111/2021 & CM APPL. 47753/2021, CM
                                 APPL. 47754/2021

                                 BADRI PRASAD & ORS.                                ..... Appellants
                                              Through:             Mr. A.K. Padhy and Mr. S.R. Padhy,
                                                                   Advs.

                                              versus

                                 DELHI DEVELOPMENT AUTHORITY             ..... Respondent
                                              Through: Mr. Nitin Sharma, Adv.

                                 CORAM:
                                 HON'BLE MR. JUSTICE V. KAMESWAR RAO
                                         ORDER

                           %             24.12.2021

                           CM APPL. 47754/2021

Exemption allowed subject to all just exceptions.

Application stands disposed of.

As learned counsel for respondent / caveator appears, caveat stands discharged.

1. This appeal has been filed by the appellants challenging the order dated November 30, 2021 passed by the learned Additional District Judge- 08, Central District, Tis Hazari, Delhi wherein the learned Judge considered the question whether the Suit of the plaintiff on the basis of claim of adverse possession is maintainable even after the proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, ('PP Act' for Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:25.12.2021 23:20:48 short) have been undertaken, in view of section 15 of the PP Act.

2. The claim of the appellants was that their common ancestor namely Mool Chand @ Moolia Zamadar, at request of British Army, came to Delhi in the year 1915 to cultivate the barren land and produce high quality fodder for the British Army horses. Since then, especially after the British left India, the appellants have been in continuous uninterrupted possession thereof. They paid lagan / land revenue in 1994. At this stage, Mr. A.K. Padhy learned counsel for the appellants states, they have been paying since 1930. In the year 1991, defendant DDA issued a first notice of eviction to the appellants. The case of the appellants was one of them namely Badri Prasad had earlier approached the District Court. The learned Additional District Judge, vide his Judgment dated April 6, 1992 had directed the plaintiff to deposit the land revenue from 1967 with a further direction to the DDA to verify whether the plaintiff Badri Prasad was a sub-allottee of the Delhi Peasants Multi Purpose Cooperative Society. It is their case that the eviction order was passed in the year 2015 did not take into account that the Estate Officer could not have decided the question of adverse possession.

3. The DDA had filed a written statement before the Trial Court where they have taken an objection that the suit filed by the appellants is barred by Section 15 of the PP Act. It is also stated that the suit land falls in 'O' Zone and part of flood plain area. It forms part of Bela Revenue Estate, Government Land and placed at the disposal of DDA by virtue of Nazul Agreement dated March 31, 1937. It is the case of the DDA that the appellants are unauthorized occupants. The DDA also denied the claim of the appellants that they are the owners by way of adverse possession. The DDA has also stated that the order dated June 22, 2015 of the Estate Office Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:25.12.2021 23:20:48 was challenged by some of the appellants herein before the learned District Judge, who vide Judgement dated October 9, 2017 dismissed the same. Even this Court vide order dated August 9, 2018 dismissed the writ petition filed by some of the appellants. Even the Intra-Court appeal was dismissed by the Division Bench on December 18, 2018. I have been informed that similarly placed persons had approached the Supreme Court, but were unsuccessful. Mr. Padhy would submit the claim of those similarly placed persons who had approached the Supreme Court, was not of adverse possession as has been claimed by the appellants before the Trial Court in this Case.

4. I find, de-hors the plea of maintainability of the suit before the Trial Court, insofar as the claim of the appellants of adverse possession, is concerned, the same was rejected by the Trial Court by stating in paragraph 12 as under:

"In my opinion, the plaintiffs are trying to take the advantage of the observations of the Division Bench in the LPAs filed by them regarding the claim of ownership on the basis of adverse possession. The said plea had been considered by Hon'ble Justice R.S. Endlaw in his order dated 09.08.2018 and the same was dismissed. The similarly situated petitioners did not find any favour from the Hon'ble Supreme Court as well. In view of the orders of the Hon'ble High Court and Hon'ble Supreme Court, in my opinion, the suit of the plaintiffs is not maintainable. Accordingly, the suit stands dismissed being not maintainable."

5. The submission of Mr. Padhy is that the issue of adverse possession is a mixed question of fact and law and the Trial Court could not have dismissed the suit without sending the same for trial. I am not in agreement Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:25.12.2021 23:20:48 with the said submission inasmuch as even the Division Bench on the question of adverse possession has stated that if the petitioners think that they have any right to claim their right of possession or title on the basis of adverse possession, they should resort to the remedy of filing a suit and seeking such benefit. The learned Single Judge, whose order was considered by the Division Bench has conclusively in paragraph 11 his order dated August 9, 2018 has stated as under:

"11. On the contrary, the argument as aforesaid is, of payment of land revenue for the land and payment of which land revenue shows an admission of the petitioners of the title of the respondent DDA. The petitioners have not shown any right to continue in possession of the land under any permission or lease from the government or from the respondent DDA."

6. Even otherwise, the case of the appellants herein is that they are paying the land revenue to the DDA, and this factum has also been noted by the learned Single Judge to hold that the payment of land revenue for the land shows an admission of the appellants of the title of the respondent DDA and the Division Bench has also held that the appellants merely by paying the land revenue cannot claim ownership or title of the land. That apart, I find that it is the case of the appellants as noted by the learned Trial Court that they have paid the land revenue in terms of the Judgment of the learned Additional District Judge. Even it is the case of the appellants as noted in paragraph 16 of page 60, which is a part of their plaint before the Trial Court wherein they have stated as under:

"But, as per then court order of 18.09.91 of Ld. ADJ Sh.S.N. Kapoor, plaintiffs paid lagan/khajana/land revenue by bank challans on 29-12-2008 & 2-1-2009 w.e.f. 1967 till 4 years in advance from the date of said payments."

7. The above clearly demonstrates that even in 2008-2009 "till 4 years in advance from the date of said payments" i.e. till the year 2013, they have paid the land revenue. At this stage, Mr. Padhy states, the same was paid to Land Commissioner, DDA. If that be so, the claim of adverse possession would not be maintainable for the reasons; (i) they have admitted that the land is of DDA even as recently as till the year 2013 when they paid the land revenue (ii) much before that in the year 1991, the DDA had issued notice of eviction, which was followed by another notice in the year 2015; (iii) the Estate Officer vide Order dated June 22, 2015 directed eviction of the appellants, which order has been upheld till the Division Bench. It is clear that the possession of land by the appellants is not adverse to the DDA, which is necessary as the plea of adverse possession seeks to defeat the rights of a true owner. In this regard, I may refer to the judgment of the Supreme Court in the case of Narasamma and others v. A. Krishnappa (2020) 15 SCC 218, wherein, in paragraph 37, the Supreme Court has held as under:-

"37. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out.

8. It may also be stated, the plea of Mr. Padhy is that the appellants are in occupation through their predecessor for a long period of time. Suffice to state, it is a settled law that long period of occupation does not amount to adverse possession. (Ref: Roop Singh vs. Ram Singh (2000) 3 SCC 708; Jagdish Chander Talwar vs. Uday Sarin (2013) 134 DRJ 677 (Del) and;

Om Parkash vs. South Delhi Municipal Corporation 2016 SCC OnLine Del 2445).

9. There is no dispute that the DDA is a land owning agency and the land concerned has to be used for public purpose. The Supreme Court in the case of Ravinder Kaur Grewal and others vs. Manjit Kaur and others and connected writ petitions (2019) 9 SCC 729 has, in para 63 held as under:-

"63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession."

10. In view of above, I do not see any reason to interfere with the order passed by the Trial Court. The appeal is dismissed.

Dismissed as infructuous.

V. KAMESWAR RAO, J.

DECEMBER 24, 2021/jg Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:25.12.2021 23:20:48