Important Point – Adverse possession has to be open, hostile and continuous.

VALMIKI J. MEHTA, J.

C.M. No. 27336/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No. 682/2017 and C.M. No. 27292/2017 (stay)

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit impugning the judgment of the trial court dated 27.3.2017 whereby the trial court has decreed the suit of the respondent/plaintiff for possession of the suit property. The operative para of the judgment of the trial court reads as under:-

“A decree of possession of the suit property bearing No. F-48 (sic. F-49), Vishwas Park, Uttam Nagar, New Delhi-110059, more specifically shown in red colour in site plan Ex.DW1/PD and a decree of permanent injunction is passed in favour of the plaintiff and against the defendants, restraining defendants, their agents, servants, attorneys and persons acting on their behalf from creating third party interest, construction, demolition in the aforesaid property.”

3. I may note that the respondent/plaintiff filed the suit claiming ownership of the property bearing no. F-49, Vishwas Park, Part-II, Solanki Road, Uttam Nagar, New Delhi 110059 which comprised of land area of 100 sq. yds. in terms of sale deed dated 7.4.2006 executed in favour of the respondent/plaintiff by the earlier owner Smt. Brij Kumari. The disputed portion of the property is an area of 50 sq. yds. out of the 100 sq. yds. purchased by the respondent/plaintiff under the sale deed dated 7.4.2006. This area was called by the appellants/defendants as property no. F-48, and therefore, the suit is decreed in terms of the operative para for property no. F-48, however, the reality is that the possession has been decreed for an area shown in the site plan which forms part of property no. F-49. Possibly, in fact, the use of the property no. F-48 in the operative para of the judgment of the trial court dated 27.3.2017 is therefore a typographical error and the suit actually stands decreed for the suit property which forms part of property no. F-49 and that this is so becomes clear from the discussion in the impugned judgment of the trial court which is with respect to property no. F-49.

4. The facts of the case are that the respondent/plaintiff pleaded that he had purchased the suit property by means of a duly registered sale deed dated 7.4.2006 from the erstwhile owner Smt. Brij Kumari. This sale deed along with the chain of the earlier title documents in original were proved and exhibited by the respondent/plaintiff as Ex. P-2 (colly). Respondent/plaintiff pleaded that he had gone to his parental home in District Bulandshehar, Uttar Pradesh on account of his father being ill and that after the demise of his father when the respondent/plaintiff returned to Delhi he was shocked to know that appellants/defendants along with their father Sh. Om Prakash have trespassed into the suit property. It was further pleaded that on account of appellants/defendants and their father Sh. Om Prakash threatening the respondent/plaintiff with dire consequences, various complaints were filed at the Police Station Binda Pur being complaints dated 18.06.2007, 22.07.2007, 03.08.2007, 08.08.2007 and 09.02.2008. Respondent/plaintiff pleaded that Aadhar Card and Election Identity Card of the respondent/plaintiff are with respect to the suit property and also his bank account and Tata mobile phone bill have the address of the suit property. Respondent/plaintiff pleaded that he has performed the marriage of his son Sh. Prince at the suit property and the son of the respondent/plaintiff Sh. Manish also had his Aadhar Card and Driving Licence of the address of the suit property. The daughter of the respondent/plaintiff Smt. Sannu Chaudhary is also pleaded to have an identity card at the address of the suit property and which showed the possession of the responden