IMPORTANT POINT
A trespasser cannot claim ownership based on unlawful possession; clear legal grounds for ownership must be established.

JUDGMENT :

MANMEET PRITAM SINGH ARORA, J:

I.A. 37063/2024 (application under order VII Rule 11 CPC)

1. This is an application filed by the defendant no. 2 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (‘CPC’) seeking rejection of the plaint.

Background of the case

2. The present suit has been filed by the plaintiff seeking a declaration that the plaintiff is the owner of the property i.e. B-100, Second Floor, Gulmohar Park, Delhi measuring 300 Sq. yds. (‘suit property’) on the premise that the plaintiff has been in continuous possession of the suit property since January, 2007 to the knowledge of the recorded title holder, late Sh. S.K. Zaman.

2.1. The plaintiff has also sought a decree seeking permanent injunction restraining the defendant nos. 1 and 2 from (i) interfering in the possession of the plaintiff over the suit property; (ii) representing themselves as owner of the suit property; and (iii) from creating any third-party interest in respect of the suit property.

2.2. This suit was initially filed before the Court of learned ADJ-06, South, Saket as CS DJ No. 305/2024 (‘Trial Court’), however, as the matter in issue and the suit property was identical to the matters already pending before this Court [i.e. CS (OS) 113/2023] therefore, vide order dated 17.05.2024, the said suit was transferred to this Court and re-numbered as CS (OS) 608/2024.

2.3. An interim order was passed by the Trial Court vide order 03.05.2024.

The relevant portion reads as under:

“Though this Court is not inclined to grant ad-interim ex-parte injunction order in favour of the plaintiff, however, still in order to protect the suit property being frittered away and to avoid multiplicity of the proceedings, it is ordered that till disposal of application U/o 39 rule 1 & 2 CPC, defendants are restrained from creating third party interest in the suit property in any manner.”

3. The defendants seek rejection of the plaint on the pleas that inter-alia the suit is without any cause of action, the reliefs sought are barred in law and the plaintiff has not approached the Court with clean hands.

Arguments on behalf of the plaintiff

4. The present suit was listed on 29.08.2024 along with CS (OS) 113/2023 and CS (OS) 114/2023. The plaintiff herein is duly represented by Mr. N. Pradeep Rai, Advocate in the said suits wherein an application for impleadment has been filed by the plaintiff, however, inexplicably it was submitted by the plaintiff that in the present proceedings he will be represented by his wife Mrs. Bhawna Malik and not Mr. N. Pradeep Rai, Advocate. Accordingly, submissions for the present suit were addressed by Mrs. Bhawna Malik.

4.1. The plaintiff admits that late Sh. S.K. Zaman is the title holder of the suit property and he had purchased the suit property vide sale deed dated 13.11.2006. The plaintiff admits that late Sh. S.K. Zaman was the father of defendant no. l and husband of defendant no.2.

4.2. It is stated in the plaint that the late Sh. S.K. Zaman had taken a loan of Rs.25 lakh from the plaintiff and it was this loan amount which was used to purchase the suit property in 2006.

4.3. It is stated that late Sh. S.K. Zaman failed to repay the said loan amount of Rs. 25 lakhs and therefore, plaintiff took possession of the suit property in or around January 2007 and since then the plaintiff has been in possession of the suit property.

4.4. It is stated that Sh. S.K. Zaman expired on 30.03.2018, however, none of the legal heirs of late Sh. S.K. Zaman initiated any legal action to recover possession of the suit property from the plaintiff herein.

4.5. It is stated that after taking possession of the suit property, plaintiff has represented himself as the owner of the suit property. In this regard, it is stated that plaintiff had published an advertisement in the Yellow Pages magazine namely ‘The Winner’ and a daily newspaper to invite offers for sale of the suit property. It is stated that the plaintiff has let out the suit property to differen