Back
2016 Supreme(Del) 3932
IN THE HIGH COURT OF DELHI AT NEW DELHI
INDERMEET KAUR, J.
PHOOL SINGH - Petitioner
Versus
MUNICIPAL CORPORATION OF DELHI THROUGH ITS CHAIRMAN (SOUTH) AND ANR. - Respondents
W.P.(C) 3633/2012
Decided On : 27-10-2016
For the Petitioner: Mr. Naresh Thanai.
For the Respondents: Mr. Mini Pushkarna, with Ms. Namrata Mukim, Ms. Anushruti and Ms. Vasundhara Nayyar, Mr. Ajay Verma, with Mr. Vaibhav Mishra, Mr. Rajiv Kumar Ghawana.
Adverse possession requires clear and unequivocal evidence of hostile possession and can only be used as a defense, not as a claim.
Headnote:
Adverse Possession - Land Use Dispute - Delhi Development Act, 1957, Section 55; (2005) 11 SCC 222 Raju S. Jethmalani and Others Vs. State of Maharashtra and Others - (2006) 7 SCC 570 T Anjappa and Others Vs. Somalingappa and Another
Fact of the Case:
The petitioner claimed adverse possession of a plot of land designated as a park in the development plan and sought a declaration to change its land use to residential. The court noted the petitioner's possession of the land for six decades and pending suits for possession and damages against the petitioner.
Finding of the Court:
The court found that the petitioner's claim of adverse possession could only be used as a defense, not as a claim, and that the pending suit would decide the title of the parties. The court dismissed the petition, stating that the petitioner did not have acquired title to the land and that adverse possession could not be set up as a claim.
Issues: The issues revolved around the petitioner's claim of adverse possession and the request to change the land use from park to residential.
Ratio Decidendi: The court emphasized that adverse possession requires clear and unequivocal evidence of hostile possession, and the pending suit would decide the title of the parties. The court also highlighted that adverse possession can only be used as a defense, not as a claim.
Final Decision: The petition was dismissed as without merit.
INDERMEET KAUR, J.
1. The present writ petition has been filed by the petitioner namely Phool Singh. In the course of these proceedings, Phool Singh had expired. His legal representatives have been brought on record. They are now pursuing this litigation.
2. At the outset, this Court had noted that prayers (a) and (c) cannot be granted and the petition had been confined to prayer (b) alone which reads herein as under:-
“Issue writ order or direction in the nature of declaration declaring that the land use in respect of 13 biswas of land (admeasuring 650 square yards) forming part of Khasra No.50/1, Humayunpur, New Delhi in possession of the petitioner is residential and land use shown as park in the development plan of Humayunpur is illegal and arbitrary.”
3. The averments in the writ petition disclose that the petitioner is stated to be in possession of property constructed on a plot of land measuring 13 biswas (admeasuring 650 square yards) forming part of khasra No.50/1, Humayunpur, New Delhi. It is stated that the petitioner is in possession of this plot of land since the last six decades.
4. A civil suit had been filed by one Khazan Singh and others in the year 1971 for possession against the petitioner qua 200 square feet of land. This suit was decreed on 30.10.1976 but the decree has not been executed till date. That decree has now become un-enforceable.
5. In the year 1985, the officers of the MCD and the DDA attempted to interfere in the peaceful possession of the petitioner qua the said suit land. Pursuant thereto, demarcation was ordered of the suit land which was accordingly carried out.
6. In the year 1989, part of this khasra was notified under Sections 4, 6 and 17 (1) of the Land Acquisition Act for a public purpose. This acquisition was challenged by the petitioner in a writ petition. This writ petition was disposed of on 24.02.1999. The acquisition proceedings stood quashed. An appeal filed against that judgment also stood dismissed by the Division Bench on 16.05.2000.
7. In the year 1996, Khem Chand and residents of the area had filed a suit for injunction against the petitioner. This suit was registered as Suit No.85/1996. The interim application filed by the petitioner under Order XXXIX Rules 1 & 2 of the CPC was dismissed by the Trial Judge on 09.10.1996. The appeal against that order was also dismissed. The contention of the petitioner all along was that he is in settled possession of the aforenoted land.
8. Thereafter in the year 2006, a suit was filed by Khazan Singh for possession and damages against the petitioner. The application under Order XXXIX Rules 1 & 2 of the CPC filed by them was allowed in their favour. This was vide order dated 03.02.2009. The petitioner filed an appeal against that order which was disposed of by a Bench of this Court on 11.09.2009. The appeal was allowed. It was held that since the petitioner was in settled possession of the suit property (legal or otherwise), he could not be restrained from carrying out additions/alterations/construction in the suit property. The appeal against that order stood dismissed by the Apex Court on 11.02.2010.
9. In June, 2010, the petitioner had approached the office of the respondents seeking a sanction of his building plan. This application was not accepted by the respondents. The petitioner was constrained to file W.P. (C) No.6348/2010. This writ petition was disposed off on 08.04.2010. A copy of that order has not been placed on record but the further averments in the writ petition disclose that pursuant thereto that the petitioner had again submitted his application seeking a sanction of his building plan. This application was rejected. Admittedly against the rejection of sanction of building plan, the petitioner had a remedy of filing an appeal and as such prayer (a) was not pressed before this Court. This was noted in the order dated 01.06.2012. At the cost of repetition, it is only prayer (b) which is being pressed.
