The court emphasized that the defense of adverse possession cannot be claimed if it is contradictory to the main defense of ownership, and that the benefit under section 53A of the TPA can only be claimed on the basis of a registered document.

JUDGMENT

Amit Bansal, J. -

I.A. 3994/2021 (O-XII R-6 of CPC)

1. The present application has been filed on behalf of the plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1908 (CPC) seeking decree of possession in respect of ground, first and second floor of the property bearing No.WZ-36A/2, Krishna Park Extension, New Delhi-110018, on the basis of admissions made by the defendants in their written statements.

2. Notice in this application was issued on 16th March, 2021, and the reply has been filed on behalf of the defendant no.1 on 9th April, 2021. The rejoinder has also been filed thereafter.

3. The case set up by the plaintiff in the plaint is that the suit property was owned by the plaintiff's husband Late Sh. Ashok Kumar by virtue of a Sale Deed dated 18th January, 1995. Late Sh. Ashok Kumar expired intestate on 27th February, 2015 and therefore, the plaintiff and her two children, Himanshu Gupta and Prachi Goel, became joint owners of the said property. Vide relinquishment deed dated 25th May, 2017, the children of the plaintiff relinquished their share in the aforesaid property in favour of the plaintiff. Therefore, the plaintiff became sole and absolute owner of the suit property and the property was duly mutated in her favour by the South Delhi Municipal Corporation vide letter dated 27th February, 2020.

4. In the year 2012, the defendant no.1, who was the elder brother of Late Sh. Ashok Kumar, had been permitted to use the suit property as a permissive user. However, the defendant no.1 has carried out illegal construction and demolition in the suit property in 2015 and opened a gymnasium in suit property in 2014/2015.

5. On the other hand, the case set up by the defendant no.1 in his written statement is as under:

(i) The suit property as well as the adjoining property bearing No. WZ-36A/3, Krishna Park Extension, New Delhi-110018, owned by the defendant no.1, are both one unit of land, and therefore, the demarcation would be required between the suit property and the said property, before a decree of the possession can be passed in favour of the plaintiff.

(ii) The defendant no.1 has been in possession of the suit property since 2007 as an owner.

(iii) In the alternative, the defendant no.1 has become the owner of the suit property on the basis of adverse possession.

(iv) The present suit is time barred on account of Section 27 of the Limitation Act, 1963, as the same has been filed after 12 years from the date when the defendant no.1 took possession of the suit property i.e. from the year 2007.

(v) The suit is barred under Section 53A of the Transfer of Property Act, 1882 (TPA), as the defendant no.1 is in possession in terms of a writing dated 28th September, 2009.

(vi) There is no admission made by the defendant no.1 that would entitle the plaintiff to a decree under Order XII Rule 6 of the CPC.

6. The counsel for the plaintiff submits that even if the suit property has not been demarcated, a partial decree can be passed in terms of the site plan filed on behalf of the defendant no.1. He further submits that the claim of the defendant no.1 to be the owner of the suit property is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988. He states that the suit is not barred by limitation, as in terms of Article 65 of the Limitation Act, 1983, the limitation would only run from the date when the hostile possession has been claimed by the defendant no.1. In the present case, the hostile possession has only been claimed by the defendant no.1 at best from 2014, when a gymnasium was opened in the suit property.

7. As regards the defence taken under Section 53A of the TPA, it is submitted on behalf of the counsel for the plaintiff that the aforesaid defence can only be taken by the defendant no.1 on the basis of a registered document. In the present case, since the writing dated 28th September, 2009 executed by Late Sh. Ashok Kumar is not a registered document, the defence available under Section 53A o