* + % SRI NIWAS GUPTA IN THE HIGH COURT OF DELHI AT NEW DELHI RSA No.206/2015 18th October, 2016 ..... Appellant Through: Mr. Subhasish Bhomick, Advocate with appellant in person. versus SURENDER KUMAR ..... Respondent Through: Mr. Arun Birbal, Advocate. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the Judgment of the First Appellate Court dated 26.9.2014. The First Appellate Court vide its Judgment dated 26.9.2014 has decreed the suit by setting aside the Judgment of the Trial Court dated 15.12.2011 which had dismissed the suit. The subject suit was a suit for possession, mesne profits and injunction with respect to the suit property admeasuring 100 sq. yards bearing No.A-699, New Ashok Nagar, Delhi, situated in khasra No.409/274. RSA No.206/2015 Page 1 of 11 2. The case of the respondent/plaintiff was that he purchased ownership rights in the suit property by usual documentation being the Agreement to Sell, General Power of Attorney, Will, Receipts, etc dated 12.6.1997. Out of 100 sq. yards, 30 sq. yards were purchased by the respondent/plaintiff from Smt. Gyanwati and 35 sq. yards each were purchased from Sh. Prabhu Dayal and Sh. Rakesh Kashyap. The appellant/defendant is alleged to have trespassed illegally and taken possession of one shop and two rooms in the year 2001; shop being the area which was purchased from Smt. Gyanwati and two rooms being the area purchased from Sh. Prabhu Dayal. Firstly a legal notice was sent to the appellant/defendant in the year 2001 which led to sitting of a Panchayat whereby the appellant/defendant was to handover possession which he failed to do so, and therefore, after serving another Legal Notice on 8.2.2007 the subject suit was filed.
3. The defence of the appellant/defendant was that the suit property was not owned by the respondent/plaintiff because the suit property was acquired by the government by Award nos. 39 and 22 and possession was also taken by the government. The acquisition proceedings and the possession proceedings were of 1982-83. Accordingly, it was prayed that since the respondent/plaintiff was not the owner the suit should be dismissed. RSA No.206/2015 Page 2 of 11 4. After the pleadings were complete, the trial court on 21.2.2009 framed the following issues:-
"“1) Whether the plaintiff has no right, title or interest in the suit property?. OPD2 Whether the suit is bad for non-joinder of necessary parties?. OPP3 Whether the plaintiff is entitled for the relief of possession as prayed for?. OPP4 Whether the plaintiff is entitled for mesne profits/damages, if so, at what rate and for which period?. OPP5 Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?. OPP6 Relief.” 5. Before the trial court the respondent/plaintiff proved the entire chain of documentation i.e from his sellers, namely, Smt. Gyanwati, Sh. Prabhu Dayal and Sh. Rakesh Kashyap and also from the predecessors-in-interest of Smt. Gyanwati, Sh. Prabhu Dayal and Sh. Rakesh Kashyap. These documents have been proved and exhibited and is so noted accordingly in paragraph 6 of the judgment of the trial court and which reads as under:-
"“6. Thereafter, the parties were directed to lead their evidence. In support of his case, the plaintiff has examined himself as PW-1 and filed his examination in chief by way of affidavit Ex.PW-1/A. PW-1 has also proved on record the GPA, agreement to sell, Deed of Will and receipt executed by Gyanwati in his favour as Ex.PW-
to Ex.PW-1/4; the sale documents executed by Smt. Wakila in favour of Smt. Gyanwati i.e. GPA, agreement to sell and receipt Ex.PW-
to PW-1/7. The documents executed by Sh. Rakesh Kashyap in favour of the plaintiff i.e. GPA, agreement to sell and receipt Ex.PW-
to PW-1/10; and documents executed by Daljeet J.
Singh in favour of Rakesh Kashyap i.e. GPA, agreement to sell, receipt and affidavit as Ex.PW-1/11 to PW-1/14; the documents executed by Prabhu Dayal in favour of the plaintiff i.e. GPA, agreement to sell and receipt Ex.PW-1/15 to PW-1/17 and documents executed by Daljeet J.
Singh in favour of Prabhu Dayal i.e. GPA, agreement to sell and receipt as Ex.PW-1/18 to PW-1/20; the site plan as Ex.PW-1/21; copy of ration card as Ex.PW-1/22 and copy of RSA No.206/2015 Page 3 of 11 election I card as Ex.PW-1/23; the replies received from the office of ADM as Ex.1/24 to PW-1/27; electricity bills receipt issued by DJB; copy of treasury challan as Ex.PW-1/28 to PW-1/37; property tax receipt as Ex.PW-1/38; receipt issued by New Ashok Nagar Vikas Sangathan as Ex.PW-1/39; electricity water and telephone bills as Ex.PW-1/40 to PW-1/44 and income tax returns filed by the plaintiff as Ex.PW-1/45 (colly.) and closed his evidence.” 6. Appellant/defendant also led evidence of acquisition and possession proceedings qua the Government and which evidence is referred to in paragraph 7 of the judgment of the trial court and the same reads as under:-
"“7. Defendant, on the other hand, has examined DW1 Sh. Inderjeet Singh, Patwari from the Office, LAC, Geeta Colony who produced the records of Award no.39 and 22 for the year 198283. He also produced the original RD Register and the possession proceedings dated 1.10.1982 in Award no.39 and possession proceedings dated 12.01.1982 in Award No.22. The copies of award no.22 alongwith possession proceedings were proved as Ex.DW1/1and the copy of Award No.39 alongwith possession proceedings as Ex.DW1/2. The reply dated 9.5.2007 issued to the defendant has been proved as Ex.DW13. The defendant also examined himself as DW2 and filed his examination in chief by way of affidavit as Ex.DW2/A. He also relied upon the documents already Ex.DW
and closed his evidence.” 7. Trial court dismissed the suit holding that since the suit land is proved to have been acquired by the government, and which acquisition and possession proceedings are of the year 1982-83, therefore the respondent/plaintiff by his documents of 1997 could not claim title to the suit property. Accordingly, the suit for possession was dismissed.
8. The first appellate court by an elaborate, exhaustive, thorough and well reasoned judgment has set aside the judgment of the trial court and held that even if the respondent/plaintiff failed to show his title because the suit land RSA No.206/2015 Page 4 of 11 was acquired by the Government, respondent/plaintiff proved his possessory title to the suit property and therefore he was entitled to succeed on the basis of the possessory title as against the world at large except the true owner, and that respondent/plaintiff could succeed against the appellant/defendant as the appellant/defendant was not the true owner. Ordinarily, I would have given detailed reasoning to uphold the judgment of the first appellate court, but, in my opinion, since the first appellate court has passed a very exhaustive and thorough judgment, and possibly even I cannot do any better so far as language is concerned, I seek to reproduce relevant paragraphs being paragraph nos. 9 to 20 of the judgment of the first appellate court, and which read as under:-
"9. In this regard this court is supported by the case law reported as „(2004) 1 SCC769titled as Rame Gowda Vs. M. Vardappa Naidu (dead) by LRs‟. It is has been held by Hon‟ble Supreme Court in this case that a person who is in possession of a land is assumed to have perfectly good title against the entire world but the rightful owner. It is also held that when no party has title then rights are decided only on the basis of the possession alone. In the absence of proof of better title, the prior settled and peaceful possession of plaintiff itself is the evidence of title. It is further held that when the defendant fails to prove his title to the suit property then plaintiff can succeed to obtain a decree of possession on the basis of his prior possession who dispossessed him. Even a trespasser, who has been forcefully dispossessed by the defendant having no title, can recover the possession on the basis of his prior possession.
10. In this regard this court is further supported by the judgment reported as 1986(1) CurLJ357titled as Bhartu Vs Dewana and another and relevant para of this judgment reads as under:-
"5. Once the plaintiff succeeds in proving his possession and his dispossession is not shown to be legal or in accordance with law, he must indeed be held entitled to a decree for possession based upon his possessory title. The position in law, in this behalf, is well-settled. Reference may be made here to the judgment of the Supreme Court in Nair Service Society Limited v. K.C. Alexander and others, AIR1968Supreme Court 1165, where it was held that a person in possession of land in the assumed character of owner and exercising peaceably the RSA No.206/2015 Page 5 of 11 ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title in the event of disturbance of possession by a third party, the plaintiff can maintain a possessory suit under the provisions of the Specific Relief Act, for which title would be immaterial for a suit for possession within 12 years. A similar view was expressed in Somnath Berman vs. Dr.S.P. Raju and another, AIR1970Supreme Court 846.
11. It has been held in case reported as 1983 CurLJ30title as Banwari Ram Vs Attar Chand that in case plaintiff fails to prove his title it is found that defendant is a trespasser then plaintiff is entitled to recover possession on the basis of his prior possession. The relevant portion of this judgment reads as under:-
"It may be that ordinarily it is for the plaintiff to prove his title in order to succeed in his suit, but in a case where it is found that the defendants are the trespassers, then the plaintiff is entitled to the relief on the basis of his prior possession. Only a rightful owner could dispossess the plaintiff even if he is in possession of the property without any title.
12. It has been held in the case reported as 2011(3) M.P.L.J titled as Pratap Singh (since deceased) by Lr Sardar Singh Vs. Mangal Khan and Another that plaintiff can also file a suit for possession if he is not having actual title but having better title than the defendant. In this case while taking the said view Hon‟ble High Court has relied upon the judgment of Hon’ble Supreme Court reported as AIR1972SC2299 titled as M. Kallappa Setty Vs. M.V. Lakshminaravana Rao.
13. Thus, the question of acquisition of land is not relevant to the facts and circumstances of the present suit and even if plaintiff is unable to prove his valid title, he can also maintain and succeed on the strength of his possessory title. In view of the settled law, it is the concerned government authority which can recover the possession from the plaintiff but a third person having no better right or title has got no right to disturb the possession of the plaintiff.
14. In the instant case plaintiff has claimed that he is the owner of the suit property and defendant is a trespasser. Plaintiff has brought in evidence a number of documents to establish his title over the suit property. Defendant has disputed the claim of ownership of the defendant mainly on two basis, firstly, that the suit property is situated over an acquired land, and therefore, plaintiff has not acquired any legal rights qua the same and secondly that the documents i.e. EX-PW-
(by virtue of which plaintiff has claimed to have purchased 30 sq. yards of the suit property) pertains to khasra no.291 and not khasra no.409/274 wherein the suit property is situated. It is also contended on behalf of the defendant that plaintiff doesn‟t get any right in the suit property as the same has not been sold by the original owners of the suit property.
15. To prove his title the plaintiff has brought in evidence the three sets of documents (Ex.PW-
to 1/20) by virtue of which plaintiff has claimed to have RSA No.206/2015 Page 6 of 11 purchased the entire 100 sq. yard of the property bearing no.A-699, New Ashok Nagar, Delhi, situated in the khasra no.409/274. These documents were executed in the year 1996 and 1997. The defendant claimed that the suit property is situated on acquired land and proved this fact by examining the DW-1 Sh. Inderjeet Singh, Patwari. This witness has proved that the land vested in khasra nos:-409/274 and 291 has been acquired. Thus, defendant has proved that suit property is an acquired land. It is contended on behalf of defendant that since the suit property is an acquired land, hence, plaintiff has no right to file the present suit against the defendant.
16. As discussed above that a person can seek possession not only on the basis of his legal title and also on the basis of his possessory rights. As such, the factum of acquisition of the land would not affect the right of person who is in possession. If possessory rights of a person are affected or encroached then he has got every right to recover the possession from the encroacher. A person with the possessory rights can sue any person except the true owner.
17. Plaintiff has claimed that he is in possession of the entire suit property except one shop and two rooms which have been encroached upon by the defendant. Defendant has claimed that earlier Mrs. Meena Gupta and now her son Mr. Vipin Kumar is the owner and in possession of the suit property. Defendant admitted during evidence that Mrs. Meena Gupta is his wife. The defendant has made a simple assertion in this regard and has not brought on record even a single document to prove that his wife or his son are the owners and in possession of the suit property. One thing is clear from this very stand of the defendant that defendant admits that even after acquisition, the suit property was being sold and purchased and its possession was also being transferred to the purchasers of the suit property. Plaintiff has proved on record number of documents to prove that he is in 18. possession of the suit property since long and came in possession much prior to the year 2001 (the year in which the defendant stated to have trespassed in the suit property). Plaintiff has proved on record the copy of the LPG gas connection transfer application as Ex.PW-1/42. This application was made on 21.01.98. Plaintiff has further proved number of documents as Ex. PW-1/28 to
to show that he obtained the electricity connection from Delhi Vidyut Board on 27.05.99 and has been paying the electricity dues against this connection. Plaintiff has further proved the documents i.e. Ex PW-1/34 and
that he also obtained the water connection in the suit property from Delhi Jal Board on 7.02.2000. Plaintiff has further proved the acknowledged copy the income tax form „SARAL‟ as Ex.PW-1/54 to show that he has been filing the income tax return form the address of the suit property since August, 2000. Plaintiff has also proved the property tax payment receipt as Ex.PW-1/38. The aforesaid documents are undisputed documents. Defendant has not disputed the authenticity of any of these documents during the cross examination of plaintiff, thus, these documents remained undisputed and accordingly deemed to have been duly proved by the plaintiff. RSA No.206/2015 Page 7 of 11 It is also clear from the admission made by defendant in his cross 19. examination that plaintiff is in possession of the suit property somewhere from the year 1995. The documents proved by plaintiff also show the possession of plaintiff in the suit property from the year 1998. It is also clear that the plaintiff has been exercising all his rights qua the suit property as its owner and these documents of plaintiff also clearly establish that plaintiff has been in possession of the suit property much prior to the defendant said to have trespassed into the suit property. Thus, plaintiff has clearly established that he is having and enjoying the possessory title over the suit property.
20. Once the plaintiff has established on record that he is enjoying the possessory title of the suit property, the onus shifted on the defendant as to under what capacity he is in possession of the suit property. The defendant has claimed that earlier his wife Mrs. Meena Gupta and presently his son Mr. Vipin Kumar is the owner and in possession of the suit property since 1997. Thus, onus was on defendant to establish that his son is the owner and in possession but except the simple statement, defendant has neither filed any documents nor lead any evidence to prove this claim. In the absence of any evidence to this effect it has to be assumed that neither his wife nor his son has any right in the suit (emphasis is mine) property.” 9. I completely agree with the discussion, reasoning and conclusion of the first appellate court because Article 64 of the Limitation Act, 1963 provides that there is a period of twelve years for filing of a suit on the basis of possessory title. Section 6 of the Specific Relief Act, 1963 only comes in when summary proceedings are sought to be invoked as against a person who does not have title but has taken illegal possession, however, that does not mean that normal civil suit cannot be filed even after six months for seeking possession on the basis of possessory title of the plaintiff as against a person who only claims possessory title and not ownership title of the suit property, and which suit is as per Article 64 of the Limitation Act and can be filed within twelve years of the date of dispossession. It is not in dispute that the subject suit has been filed RSA No.206/2015 Page 8 of 11 within twelve years of date of dispossession of the respondent/plaintiff claiming possessory title and therefore the first appellate court was completely justified in decreeing the suit on the basis of prior possessory title of the respondent/plaintiff and because appellant/defendant failed to prove any ownership title or possessory title of the suit property as against the respondent/plaintiff. I also note that the first appellate court has exhaustively referred to various documents which were proved by the respondent/plaintiff being the chain of title documents of respondent/plaintiff from the previous persons who claim ownership and therefore possessory title with respect to the suit property. These documents were exhibited as Ex.PW
to Ex.PW1/20 before the trial court. In paragraph 18 of its judgment, the first appellate court has further referred to LPG gas connection obtained by respondent/plaintiff on 21.1.1998 vide Ex.PW1/42, electricity connection in 1999 as per the documents Ex.PW1/28 to Ex.PW1/33, water connection in February, 2000 as per documents Ex.PW1/34 and Ex.PW1/35 as also filing of income tax returns since August, 2000 vide Ex.PW1/45 and the property tax payment receipt Ex.PW1/38. All these documents refer to the address of the suit property being that of the respondent/plaintiff and therefore showing possession of the respondent/plaintiff of the suit property. RSA No.206/2015 Page 9 of 11 10. The only way in which respondent/plaintiff could have been dislodged was by the appellant/defendant showing possessory title prior to 1997, but on this aspect the appellant/defendant miserably failed and which is rightly held in paragraphs 17 and 20 of the judgment of the first appellate court, which are reproduced above. The first appellate court rightly notes that except a simple self-serving statement no documentary evidence or any other credible evidence was led by the appellant/defendant with respect to his possession being a prior possession before 1997 when the respondent/plaintiff acquired, if not ownership title, but at least possessory title of the suit property.
11. The first appellate court has noted in paragraph 22 of its judgment the peculiarity which prevails in Delhi that various colonies have come up on government land, and such colonies running into hundreds have been regularized by government, and that the suit land is situated in one such unauthorized colony which is in the process of being regularized by government. In any case, dehors regularization aspect the only person who can claim possession from the respondent/plaintiff would be the government on the basis of ownership but not appellant/defendant who has no title and not even prior possessory title than the respondent/plaintiff.
12. Learned counsel for the appellant/defendant has sought to place reliance upon the judgment titled as Union of India and Others Vs. Vasavi Co- RSA No.206/2015 Page 10 of 11 op. Housing Society Ltd. and Others, 2014 (1) SCALE126to argue that in a suit for declaration of title and possession, title has to be clearly proved to succeed for possession, however, this judgment has no application in the facts of the present case because the first appellate court has not proceeded to grant relief to the respondent/plaintiff on the basis of ownership title but has granted reliefs on the basis of possessory title of the respondent/plaintiff being better than the illegal possession and occupation of the appellant/defendant as against the respondent/plaintiff.
13. In view of the above, there is no merit in this second appeal. No substantial question of law arises. Since the appellant/defendant has illegally dispossessed the respondent/plaintiff and which respondent/plaintiff has been forced to incur costs of litigation till this second appeal, this Regular Second Appeal is dismissed with costs of Rs.25,000/-. Costs shall be paid by the appellant/defendant to the respondent/plaintiff within a period of four weeks from today. OCTOBER18 2016 AK VALMIKI J.
MEHTA, J RSA No.206/2015 Page 11 of 11