Smt. Bhagwan Devi vs Smt. Premwati
2007 Latest Caselaw 1284 Del

JUDGMENT

J.M. Malik, J.

1. This is a peculiar case, where daughter in the second appeal, having lost her case before both the courts below, is trailing her coat tails against her mother. Appellant is the real daughter of Premwati respondent/plaintiff. Respondent is the owner of the property bearing No. D-1/88(D-1/69), Ashok Nagar, Kachcha House, P.S. Mansarover Park, Shahdara, Delhi. The respondent purchased this property from Alok Kumar vide GPA, Affidavit, Agreement and receipt dated 25.06.1990 for consideration of Rs. 48,000/-. At that time the suit property comprised of one room along with boundary wall. After the marriage of appellant, she could not find a house to stay and as such respondent allowed her to stay in the suit property because it was lying vacant at that time. The appellant had assured to vacate the premises when she was able to acquire suitable accommodation for her family. In the meantime, sons of the respondent got married and the number of her family member increased. She asked the appellant to vacate the premises but she declined. The respondent got constructed the remaining suit property and shifted therein about few years back along with her sons and his family members. The request made by the respondent to the appellant to vacate the premises time and again fell on deaf ears. Consequently, the instant suit for possession and mesne profit was filed on 12.07.2005.

2. The respondent contested this suit tooth and nail. Her principal defense is that she had shifted in the disputed suit property in the year 1989 along with her family members which was an abandoned piece of land measuring 60 square yards. She had erected a jhuggi in the said piece of land. She constructed a room in the year 1993 along with latrine and bathroom. She pointed out that the respondent has got no right, title or interest in the suit property and as such she became the owner of suit property by 14 years of adverse possession. Again, the respondent has falsely relied upon false and fabricated documents which are not legally admissible. She averred that the respondent did not approach the court with clean hands and she does not have any cause of action. It was further explained that on 16.11.2003, the respondent came to meet the appellant and stayed there for a night. On the next following morning, the son of the respondent also arrived there. They asked the appellant to vacate the suit property as respondent wanted to construct the suitable accommodation for her family. The respondent was, however, able to occupy half of the plot i.e. 30 sq. yards out of 60 sq. yards. In the meantime, the appellant filed a suit for declaration and permanent injunction against the respondent on 09.12.2003. The suit of the appellant was decreed with regard to the relief of permanent injunction but the relief of declaration was not granted in her favor on the ground that she had failed to produce any document regarding her ownership, vide order dated 07.01.2005.

3. I have heard the counsel for the parties. The counsel for the appellant pointed out that the appellant had become the owner of the case property by adverse possession. He, however, admitted that there is no documentary evidence with the appellant which may go to prove that she has got any right, title or interest in the case property.

4. I am unable to locate substance in these feckless arguments. The respondent has produced on the record the General Power of Attorney, Ex. PW1/B, Agreement to Sell Ex. PW1/C, Affidavit Ex. PW1/D, Receipt Ex. PW1/E and Will Ex. PW1/E-1, dated 25.06.1990. All these documents, indisputably prove the ownership of the respondent.

5. In her cross-examination the appellant admitted that she was having visiting terms with the respondent at that time when she shifted to the suit property. She further admitted that she did not convey to her mother that she had trespassed into the property. The plea raised by the appellant that she is in possession of the case property by adverse possession is not convincing. Her mother purchased the property. They were on visiting terms. On the other hand, the story as put forward by the respondent appears to be true, natural and reliable. This circumstance cannot obscure the fundamental fact as to how the appellant got into the possession of premises in dispute.

6. The appellant herself admitted that on 16.11.2003 the respondent and her son occupied half portion of the plot in dispute. She has already lost the suit for declaration that she had become the owner of the case property by adverse possession. In that case certified copy of judgment Ex. PW1/G dated 07.1.2005 was placed on record. The paras germane to present controversy are reproduced hereunder:

15. PW 1 deposed that she erected the jhuggi in the suit property in the year 1989 and she remained there in that jhuggi for half year. PW3 deposed that in early 1991 plaintiff along with her husband placed order for certain quantity of brick, cement and badarpur at his shop and the material was delivered. If plaintiff lived in jhuggi six months from entrance in the suit property in the year 1989 and as per PW3 order for bricks and cement were placed by the plaintiff only in 1991 then where the plaintiff lived during period of year 1990.

17. Plaintiff has not exhibited any document on record which shows that she was in the possession of the suit property prior to 1992. It is the admitted case of the defendant that plaintiff is in the possession of the suit property since 1992. Plaintiff in her entire plaint nowhere disclosed that when the possession of her became adverse to the true owner of the suit property.

20. On the other hand DW 1 deposed that she purchased the suit property from one Sh. Alok Kumar s/o Sh. Narender Kumar by virtue of General Power of Attorney dated 25.3.90. Copy of GPA is Ex. DW1/A.

21. Ld. Counsel for plaintiff stated that GPA does not confirm any right, title or ownership of the suit property to the defendant. It is true that GPA has not confirmed any right, title to the defendant but Ex. DW1/A can be read for collateral purposes. PW 2 deposed that he filed suit for getting share in the suit property. Ex. DW1/A shows that Sh.Alok Kumar s/o Sh. Narender is the owner of the suit property at the time of execution of GPA i.e. 25.6.90. The suit property consists of one room and boundary wall and when the room and boundary wall was already there in the suit property then there was no construction made by the plaintiff in the suit property and it is further that suit property was not a vacant piece of land. Plaintiff has not placed any material on record to show that she was in possession prior to 1992 neither she has deposed anything that when her possession became adverse to the true owner of the suit property. In view of the above discussion, the issue is decided against the plaintiff.

7. It must be borne in mind that judgment dated 07.01.2005 has attained finality, yet this fact was suppressed for the reasons best known to the appellant. To argue the case time and again is not only barred by res judicata but it is an abuse to the process of the Court as well. It is well settled that an issue or a point decided and attaining finality should not be allowed to be re-opened and re-agitated twice over See Escorts Forms Ltd. v. Commissioner Kumanon Division Nainital . As has been observed by Halsbury, "the Doctrine of res judicata is not a technical doctrine applicable only to records, it is furndamental doctrine of all courts that there must be an end to litigation [Halsbury's Law of England, 3rd Ed., Vol. 15, Para 357, P. 185], Halsbury also adds that the doctrine applies equally in all courts and it is immaterial in what court the formal proceeding was taken, provided only that it was a court of competent jurisdiction. "Res Judicata", it is observed in Corpus Jurisdiction, 'is a rule of universal law providing every well regulated system of jurisprudence, and is put upon two grounds embodied in various maxims of the common law; the one, Public Policy and necessity, which makes it to the interest of the State that there should be an end to litigation" interest republicae ut sit finis litium, the other, the hardship on the individual that he should be vexed twice for the same cause" nemo debet bids vexari pro eadem causa. (See Corpus Jurisdiction, Vol. 34, P. 743).

8. I am able to locate some latest authorities which lay down the proposition on the point of adverse possession. In P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. Civil Appeal No. 7062/2000 decided on 24.04.2007, the Apex Court was pleased to make the following observations:

It is settled law that mere possession even if it is true for any number of years will not cloth the person in enjoyment with the title by adverse possession. As indicated supra, the important ingredients of adverse possession should have been satisfied.

4. Adverse possession in one sense is based on the theory of presumption that the owner has abandoned the property to the adverse possession on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. See Downing v. Bird 100 So. 2D (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock 227 Ark. 1085 : 303 S.W.2d 569 (1957); Mannot v. Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).

6. To understand the true nature of adverse possession, Fairweather v. St Marylebone Property Co. [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. 16 termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law:

7. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially willful "neglect" element on part of the owner established Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favor of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.

9. In other recent authority reported in T. Anjanappa v. Somalingappa 2006 (8) JT 382, it was held that mere possession, however, long does not necessarily means that it is adverse to the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. It was further held that classical requirement are that such possession in denial of true owners' title must be peaceful, open and continuous.

10. In Govindammal v. R. Perumal Chettiar it was held that there must be a hostile open possession, denial and repudiation of rights of competitor and this denial and repudiation must brought home to competitors.

11. In Bhura Mogiya v. Satish Pagariya it was held that permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to property to the knowledge of true owner for a period of 12 years and above.

12. In Roop Singh v. Ram Singh AIR 2000 SC 1485 it was held that mere possession for along time does not result in converting permissive possession into adverse possession.

13. In Krishnamurthy S. Setlur v. O.V. Narasimha Setty it was held:

The right extinguished is the right which the lawful owner has and against whom a claim for adverse possession is made, therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession. The question whether possession is adverse or not is often one of simple fact but it may also be a conclusion of law or a mixed question of law and fact. The facts found must be accepted, but the conclusion drawn from them, namely, ouster or adverse possession is a question of law and has to be considered by the court.

14. The learned Counsel for the appellant should have known that such a cockeyed stand cannot stand up in the Court of law.

15. The judgments delivered by both the courts below are in accordance with law whence the present appeal is without any merit and therefore same is dismissed. LCR and copy of this order be sent to the trial court forthwith.