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High Court Of Delhi
MANMOHAN SERVICE STATION - Appellant
Versus
MOHAMMND HAROON JAPANWALA - Respondent
Interim Application 11118 of 1991
Decided On : 05/17/1994
ADVERSE POSSESSION - TENANT - INJUNCTION - SUIT MAINTAINABILITY - ADVERSE POSSESSION PLEA - REMEDY - LIMITATION ACT, 1963 - SECTION 64 - SPECIFIC RELIEF ACT, 1963 - SECTION 6 - EVIDENCE ACT, 1872 - SECTION 116.
Fact of the Case:
Plaintiff, a tenant in portions of the disputed property, claimed ownership by adverse possession over other portions. He sought an injunction restraining the defendants from selling, transferring, or interfering with his possession. The defendants contended that the suit was not maintainable, that the plaintiff could not claim adverse possession as a tenant, and that the suit was undervalued.
Finding of the Court:
1. The suit was maintainable as a person in possession of immovable property for more than twelve years continuously, openly, and without interruption can claim ownership by adverse possession. 2. The plea of adverse possession can be raised as a defense or as a basis for a suit to protect one's possession. 3. The plaintiff's claim to adverse possession over portions other than his tenanted accommodation was not barred by Section 116 of the Evidence Act, which prohibits a tenant from denying the landlord's title during the tenancy. 4. The plaintiff had established a prima facie case for the grant of an injunction, as he was in possession of the disputed portions and would suffer irreparable loss if dispossessed.
Issues: 1. Whether a suit based on adverse possession is maintainable. 2. Whether a tenant can claim ownership by adverse possession over portions of the tenanted property. 3. Whether the suit was undervalued. 4. Whether the plaintiff had established a prima facie case for the grant of an injunction.
Ratio Decidendi: 1. A person in possession of immovable property for more than twelve years continuously, openly, and without interruption can claim ownership by adverse possession. 2. The plea of adverse possession can be raised as a defense or as a basis for a suit to protect one's possession. 3. The plaintiff's claim to adverse possession over portions other than his tenanted accommodation was not barred by Section 116 of the Evidence Act, which prohibits a tenant from denying the landlord's title during the tenancy. 4. The plaintiff had established a prima facie case for the grant of an injunction, as he was in possession of the disputed portions and would suffer irreparable loss if dispossessed.
Final Decision: The application for injunction was allowed, and the parties were directed to maintain the status quo with regard to the disputed portions.
( 1 ) THIS is an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for issue of an ad interim injunction restraining the defendants, their servents and agen s from selling, transferring, allenating, encumbering or in any manner parting with possession of the super structure and the land adjoining thereto forming part of the property bearing No. 6. Sham Nath Marg, Alipur Road, Delhi, till the final disposal of the suit.
( 2 ) THE case of the. petitioner as reflected through the pages of the plaint and the application under disposal is as under: hat the plaintiff herein is a tenant in respect of two separate portions i. e. quarter? Nos. 44 and 45 and a plot of land measuring 300 sq. yards with a tin shed in he property bearing No. 6, Sham Nath Marg, Alipur Road, Delhi, at a monthly rent of Rs. 250. 00 w. e. f. April 1, 1973. Earlier thereto the rate of rent of the above tenanted accommodation was Rs. 12112 Annas per mensem. The plaintiff has been in occupation over the said property or the las? about 45 years. The tenanted portions which are in occupation of the plaintiff have been shown by red colour in the site plan annexed with the plaint. Besides the above portion, the plaintiff is also in occupation of various other portions of the said property whereof the plaintiff has become owner by adverse possession. The possession of the plaintiff over the said portion has been open, hostile and exclusive, without any interference and interruption or challenge from any quarter, whatsoever, including by the defendants who have been visiting the said premies from time to time. The said portions have been shown by blue colour in the site plan annexed with the plaint. The defendants have now been trying to sell, transfer, alienate and part with possession over the said property in favour of certain un-known persons in superssssion of the exclusive rights of the plaintiff over the said land. The plaintiff has been running a work-shop in the open area over the abovesaid plot of land which is being used for repair of the cars and for denting and painting. The defendants have now been trying to forcibly dispossess the plaintiff from the tenanted accommodation as well as from the areas which are otherwise in his occupation by adverse possession. In fact, Shri Ajay Gupta alongwith certain other persons tried to dispossess the plaintiff from the areas in his occupation. However, they could not succeed in their designs on October 18, 1991 and November 13, 1991. The plaintiff has expended a lot of money over the said portions, in his occupation, inasmuch as he got constructed a shed and installed machines. He also erected boundary walls over the areas shown by blue colour by putting poles and wire mesh during 1956-57. Shri Ajay Gupta, one of defendants, came to the disputed property alongwith five and six persons. They removed the wire fencing put up by the plaintiff and which has been there for the last about 40 years. The plaintiff was using the said place for storing materials, motor parts and chsassis of the new vehicles. The removal of the said fencing caused irreparable loss and damage to the plaintiff. Later on the matter was reported to the police and it was got amicably settled on the intervention of the police. Since the plaintiff has become owner by adverse possession of the portion shown by blue colour, nobody has got any right, tile or interest in the said portion of he land. Hence, they have go no right to transfer, sell and alienate the said portions. Thus arose the necessity for the institution of the present suit and for the presentation of the present application. The application is supported by an affidavit.
( 3 ) THE defendant No. 1 opposes the above application, inter alia, on the following grounds : that the plaint is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure inasmuch as it does not disclose a cause of action. The suit is undervalued and the court fee
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