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IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
Hansraj – Appellant
Versus
Jagminder Singh & Ors. – Respondents
RFA No. 809 of 2017
Decided On : 22-09-2017
Adverse Possession - Property Dispute - Code of Civil Procedure, 1908 (CPC) - Section 96 - Section 144 r/w 151 - Order XLI Rule 27 - [Section 96 of CPC] - [Section 144 r/w 151 CPC] - [U/o XLI Rule 27 CPC] - 5, 6, 12, 13, 14, 15 of Chatti Konati Rao and Others vs. Palle Venkata Subba Rao (2010 )14SCC 316 - 19, 21, 23 of P.T. Munichikkanna Reddy and Others vs. Revamma and Others (2007) 6 SCC 59 - 5 of T. Anjanappa v. Somalingappa - 11 of Karnataka Board of Wakf vs. Government of India and Ors. - 5 of S.M. Karim v. Bibi Sakina - 5 of Madhvakrishna & Anr. v. Chandra Bhaga & Ors. (1997) 2 SCC 203 - 35 of State of Haryana vs. Mukesh Kumar & Ors. AIR 2012 SC 559
Fact of the Case:
The suit property was decreed for possession and injunction in favor of the respondents/plaintiffs against the appellant/defendant. The appellant/defendant claimed ownership of the property by adverse possession, but the trial court struck out the issues related to adverse possession. The appellant/defendant challenged the deletion of these issues in the appeal.
Finding of the Court:
The court found that the appellant/defendant failed to prove adverse possession as there was no evidence of hostile assertion of title against the true owner. The court also noted that the appellant/defendant did not plead that the Delhi Development Authority was the owner of the property.
Issues: The issues included the claim of adverse possession by the appellant/defendant, the deletion of issues related to adverse possession, and the ownership of the suit property.
Ratio Decidendi: The court emphasized that mere possession, even for a long time, does not necessarily constitute adverse possession. It highlighted the requirement of open, continuous, and hostile possession, and the need to bring the aspect of adverse possession to the knowledge of the true owner. The court also noted that the burden of proving adverse possession is heavy and that the claimant must establish the date of commencement of adverse possession and the nature of possession.
Final Decision: The appeal was dismissed, affirming the trial court's decision in favor of the respondents/plaintiffs.
VALMIKI J. MEHTA, J.
CM No.34804/2017(Exemption)
Exemption allowed subject to just exceptions.
CM stands disposed of.
CM Nos. 34802/2017(delay in filing) and 34803/2017 (delay in re-filing)
For the reasons stated in the applications, delay in filing and re-filing is condoned.
CMs stand disposed of.
RFA No. 809/2017 & CM Nos.34799/2017 (U/s 144 r/w 151 CPC) and 34800/2017 (U/o XLI Rule 27 CPC).
1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the judgment of the trial court dated 22.2.2017 by which the trial court has decreed the suit for possession and injunction filed by the respondents/plaintiffs against the appellant/defendant with respect to the suit property admeasuring 250 sq. yards out of K.No.28/4, Village Kakrola, New Delhi. At this stage, I would like to mention that the decree in question has been executed and the respondents/plaintiffs have taken possession of the suit property. It is for this reason that CM No. 34799/2017 has been filed by the appellant/defendant for restoration of possession.
2. The facts of the case are that the respondents/plaintiffs pleaded that they had become owner of the suit property by purchase of the same from the previous owner by virtue of documentation dated 18.12.2008. It was pleaded that the appellant/defendant was already in possession of the suit property and handed over possession to the respondents/plaintiffs who had purchased the same, however, after a few days the appellant/defendant requested the respondents/plaintiffs to allow him to stay in the suit property for some time and, therefore, appellant/defendant was allowed to do so. Appellant/defendant was pleaded to be a licencee and who refused to vacate the suit property, and therefore, the subject suit for possession, mesne profits and injunction was filed.
3. Appellant/defendant contested the suit and pleaded that appellant/defendant is the owner of the suit property by adverse possession, inasmuch as the appellant/defendant had occupied the suit property in June, 1985. It was pleaded that the appellant/defendant was enjoying the suit property since the year 1985 being in adverse and hostile possession of the same. It was also pleaded that the appellant/defendant in the year 1987 had made construction on the suit property of two rooms, latrine, bathroom and kitchen. It was also pleaded that appellant/defendant had the necessary documents showing his possession of the suit property such as ration card, election identity card etc. The story of the respondents/plaintiffs was denied that appellant/defendant was put in possession by the respondents/plaintiffs. Suit was therefore prayed to be dismissed.
4. The trial court after completion of pleadings framed the issues on 27.3.2014 and thereafter re-framed the issues on 18.2.2016. Original issue nos. 3 and 4 framed on 27.3.2014 pertained to ownership of the appellant/defendant of the suit property on account of adverse possession, but these two issues were deleted when the issues were re-framed on 18.2.2016. These issues as to adverse possession were deleted by the trial court by observing that the appellant/defendant cannot seek declaration in his favour of ownership without filing a counter-claim and paying the necessary court fee. The relevant paras of the impugned judgment of the trial court mentioning these aspects are paras 5 and 6 and these paras read as under:-
“5. Thereafter, on the pleadings of both the parties, following issues were framed on 27.03.2014 by my ld. Predecessor:-
ISSUES
1. Whether the suit of the plaintiff is without any cause of action against the defendant? OPD
2. Whether this Court has no pecuniary jurisdiction to try and entertain the present suit? OPD
3. Whether the defendant is owner of the suit property being in actual, physical un-interrupted possession of the built up property/house i.e. bearing plot no. 10, area measuring 250 square yards situated in village Kakro
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