Delhi High Court

M/S D.M.H.P. Sales Ltd. vs M/S New Howrah Transport Company & ... on 13 August, 2009

Author: S. Muralidhar

       IN THE HIGH COURT OF DELHI AT NEW DELHI

              CS(OS) 1701/2003 & IAs 10647, 13220 & 8848/2007

       M/S D.M.H.P. SALES LTD.                            ..... Plaintiff
                       Through Mr. Gagan Gupta, Advocate.

                       versus

       M/S NEW HOWRAH TRANSPORT COMPANY & ORS.
                                                     ..... Defendants
                   Through Mr. Amit Singh, Advocate for D-1.
                   Mr. Paritosh Budhiraja, Advocate for D-2.

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

       1.Whether reporters of the local newspapers
         be allowed to see the judgment?                    No
       2.To be referred to the Reporter or not ?           Yes
       3. Whether the judgment should be reported in the   Yes
         Digest ?

                                JUDGMENT

13.08.2009

1. This is a suit for recovery of possession and damages by way of mesne

profits/occupation charges.

2. The case of the Plaintiff is that it is a limited company registered under

the Companies Act, 1956 and owner of property at 1, old Municipal

No.1616 (front and rear) and new Municipal No.1704, S.P. Mukherjee

Marg, Queens Road, Delhi-110006 (hereinafter referred to as the `suit

property‟). The Plaintiff purchased the suit property from Shri Suresh

Chandra Jai Narain Gupta by sale deed dated 22nd July 1975. The suit

property was mutated in the name of the Plaintiff in the municipal house tax

record in April 1989.

3. It is stated that prior to the said purchase by the Plaintiff, the Plaintiff as

well as M/s P.S. Jain and Sons were tenants in the suit property. In 1971

P.S. Jain and Sons merged with M/s Universal Industries Pvt. Ltd. One R.C.

Jain was the Director both in the Plaintiff as well as Universal Industries

Pvt. Ltd. It is stated that P.S. Jain and Sons being the sister concern of the

Plaintiff, its tenancy rights got merged in the ownership rights of the

Plaintiff after the suit property was purchased by the latter in 1975.

4. It is stated that R.C. Jain inducted Defendant No.1 in the godown-cum-

office on the ground floor and the mezzanine portion of property, which is

shown in `Red‟ in the site plan appended to the plaint. The ground floor was

of an area of about 1590 sq. ft. whereas the mezzanine portion was 195 sq.

ft. The monthly rent was Rs.200/- which was later enhanced to Rs.3,600.

The entry to the red portion was from S.P.Mukherjee Road whereas the

entry to the basement was from the rear side of the road known as Nahar

Shahdat Khan.

5. It is stated in the plaint that the Defendant No.1 did not pay rent after 31st

December 1982 despite several reminders. Defendant No.1 also did not

hand over vacant and peaceful possession of the property. Instead it parted

with possession to Defendant No.2 who is carrying on business of transport

under the name and style of Rajdhani Interstate Transport Company.

Defendant No.2 is also stated to have taken over wrongful and illegal

possession of the lower ground floor, i.e., the basement having area of

about 1200 sq. ft., marked in the „Green‟ in the site plan. This portion is

stated to have been earlier handed over to the Plaintiff by the tenant M/s

Ganpat Rai Vijay Kumar on 24th May 1993 through eviction proceedings.

Thereafter the Defendant No.2 illegally broke open the locks of the said

portion and took over possession allegedly on 1st July 2003. Despite a

police complaint being lodged by the Plaintiff, the Defendant No.2 did not

hand over the vacant possession of the said portion. It is on the above basis

that the suit was filed against both the defendants seeking recovery of

possession of the suit property and mesne profits.

6. In the written statement filed by the Defendant No.1 it was contended

that the earlier the Plaintiff had filed a civil suit for injunction against

Defendant No.1 in the Court of the learned Civil Judge, Tis Hazari, Delhi.

The suit had been filed on 3rd July 1990 and was still pending disposal in

that court. In its written statement in the said suit, the defendant had

challenged the right and title of the plaintiff to the suit property and had

claimed there that it had perfected title to the suit property by adverse

possession. In para 6 of the written statement it was stated as under:-

"6. That it is pertinent to give a brief background of the facts and circumstances, under which the Defendant no. 1 had asserted itself as an adverse owner of the said portion of the impugned premises, which adverse possession has also perfected itself with the passage of stipulated time under the law."

7. Further in the same paragraph, the Defendant No.1 admitted that it was

inducted in the suit property in the year 1959 by Shri R.C. Jain. However,

the Defendant No.1 was silent on whether it was paying any rent to Shri

R.C. Jain. On the contrary in paras 7 and 8 it is asserted as under:

"7. That the Defendant no. 1 has never recognized the Plaintiff as a lawful owner of the suit premises and has also never tendered any rent to the Plaintiff for the use of the suit premises. The Defendant no. 1 has been asserting his rights to the suit premises by way of adverse possession, which dates back to the year 1959.

8. That in the civil suit pending before the Civil Judge, Tis Hazari, Delhi, the Defendant vide his written statement filed on 31.7.1990, had reiterated its right as an adverse owner of the suit premises, in as much as, the Defendant has been in continuous and uninterrupted possession of the said premises from the year 1959."

8. In the present suit an interim injunction was granted in favour of the

Plaintiff restraining the Defendant No.1 from alienating or parting with the

suit property. Against the said order the Defendant No.1 filed an appeal and

by an order dated 22nd February 1996, interim injunction stood vacated.

9. The stand of Defendant No.2 in his written statement is that he was given

possession of the premises under his occupation by one Meena Gupta.

According to the Defendant No.2 an agreement dated 10th February 2000

had been executed between the Plaintiff and Meena Gupta whereby tenancy

rights were created in favour of Meena Gupta. She was also given the right

to sub-let the premises. Consequently the Defendant No.2 was inducted into

the portion under his occupation as a lawful sub-letee by Meena Gupta on a

rent of Rs.700/- per month. It is claimed that the Plaintiff had joined two

different causes of action against two different defendants and therefore the

suit is barred under Order II Rule 3 CPC.

10. In the replication to the written statement filed by the Defendant No.1,

the Plaintiff clarified that the suit in the civil court at Tis Hazari, Delhi was

for an injunction whereas the present suit was for possession and which was

therefore not barred in law. It was denied that the Defendant No.1 had

perfected title in respect of the suit premises by adverse possession. It was

asserted that the Defendant No.1 was a tenant and with the tenancy having

been terminated it became an unauthorised occupant of the suit premises. It

was reiterated that R.C. Jain had inducted the Defendant No.1 as a tenant in

the suit premises in 1971. Rent receipts were placed on record in proof of

this fact. It was asserted that the Plaintiff is the sole and absolute owner of

the suit premises.

11. In the replication filed in the written statement of the Defendant No.2, it

is stated by the Plaintiff that Meena Gupta was the wife of Vijay Gupta,

partner of M/s Ganpat Rai Vijay Kumar from whom the Plaintiff got a

portion of the suit premises vacated by the process of law. The Defendant

No.2 had deliberately concealed the name of the husband of Meena Gupta

with a view to mislead this court. It is stated that the story set up by the

Defendant No.2 was a concocted one. The agreement dated 10th February

2000 permitting Meena Gupta to sub-let the premises was denied. It has

been pointed out that when the Plaintiff came to know on 1st July 2003

about the Defendant No.1 having forcibly taken possession of the premises,

a police complaint was filed.

12. On the basis of the above pleadings and the documents filed by the

parties, this Court framed the following issues:-

"1.Whether the Defendant No.1 has become owner of the portion of the suit premises shown in red colour in the site plan annexed to the plaint, having 1590 sq. ft. area on Ground Floor and 195 sq. ft. area on mezzanine floor, by way of adverse possession? OPD-1

2. Whether any agreement was executed between the Plaintiff and Mrs. Meena Gupta, D/o late Shri Prem Nath on 10.2.2000, with respect to the portion of the suit premises shown in green colour in the site plan annexed to the plaint? If this is proved, what is the consequence and effect of the said agreement? OPD-2

3. Whether Mrs. Meena Gupta had any power to sub-let the premises, shown in green colour in the site plan annexed to the plaint, to the Defendant No.2? OPD-2

4. Whether the suit of the Plaintiff, in so far as it relates to the portion shown in green colour in the site plan annexed to the plaint, is barred by the provisions of Section 50 of the Delhi Rent Control Act, 1988? OPD-2

5. Whether suit of the Plaintiff is bad under the provisions of Order II of the Code of Civil Procedure, 1908? OPD-1and 2.

6. Whether Defendant No.1 was inducted by predecessor- in-interest of the Plaintiff as a tenant in the portion of the suit property shown in red colour in site plan having 1590 sq. ft. area on Ground Floor and 195 sq. ft. area on mezzanine floor? OPP

7. Whether the Defendant No.1 illegally handed over the

aforesaid suit premises shown in red colour in the site plan to the Defendant No.2? OPP

8. Whether the Defendant No.2 forcibly took possession of the Lower Ground Floor/Basement portion of the suit property, shown in green colour in the site plan annexed to the plaint, and measuring 1200 sq. feet? OPP

9. Whether the Plaintiff is entitled to possession of the suit property bearing No.1, Old Municipal No.1616 (front and rear) and new Municipal No.1704, S.P. Mukherjee Marg, Queens Road, Delhi-110 006 as shown in red and green in the site plan? OPP

10. Whether the Defendants are liable to be evicted from the suit premises? OPP

11. Whether the Defendants are liable to pay damages to the Plaintiff for wrongful use and occupation of the suit property? If yes, at what rate and for what period? OPP

12. Relief."

13. The submissions of the learned counsel for the parties have been heard.

14. Issue No.1: Whether the Defendant No.1 has become owner of the portion of the suit premises shown in red colour in the site plan annexed to the plaint, having 1590 sq. ft. area on Ground Floor and 195 sq. ft. area on mezzanine floor, by way of adverse possession?

The plea of adverse possession set up by the Defendant No.1 appears to be

misconceived. It is claimed that the Defendant No.1 in the written statement

filed in the other suit namely Suit No. 372 of 1990 pending in the Court of

the Civil Judge that the Plaintiff had no title to the suit property. A person

setting up the plea of adverse possession has to necessarily aver that such a

plea is being set up against a person who is the valid title holder/owner of

the premises in question. The possession of the suit premises by the

Defendant No.1 has to be shown to be hostile to the true owner. These are

the essential ingredients necessary to be proved before a party can be

permitted to take the plea of adverse possession.

15. In T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been

explained that the concept of adverse possession contemplates hostile

possession, i.e., a possession which is expressly or impliedly in denial of

the title of the true owner. A person who claims title by adverse possession

"must show by clear and unequivocal evidenced that his possession was

hostile to the real owner and amounted to denial of his title to the property

claimed".

16. Referring to the decisions in Annasaheb Bapusaheb Patil v. Balwant

(1995) 2 SCC 543, the Supreme Court in T. Anjanappa v. Somalingappa

explained as under (SCC @ p.575):

"14.Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:

"14......Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65` [of the Limitation Act], burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

15. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v. Balwant, SCC p. 554, paras 14-15)."

17. In T. Anjanappa v. Somalingappa, the Supreme Court criticized the

High Court for holding that the defendants do not have to prove who is a

true owner. It was observed "if the defendants are not sure who is the true

owner the question of their being in hostile possession and the question of

denying title of the true owner do not arise".

18. In the above context, therefore, the plea of the Defendant No.1 that the

Plaintiff is not the true owner, per se negatives its assertion that it has

perfected title by adverse possession vis-a-vis the Plaintiff. The plea of the

Defendant No.1 that the Plaintiff is not the true owner of the suit property

certainly therefore should result in holding that the Defendant No.1 has

failed to prove perfection of title to the suit property by adverse possession.

19. In the affidavit of evidence filed by the Plaintiff, a certified copy of the

sale deed dated 22nd July 1975 has been enclosed and marked as an

Ex.PW.-1/3. In the cross-examination, the witness denied that the rent

receipts and claimed that Ex. PW.1/10 to PW1/13 were forged. He denied

the suggestion that there was any tenancy between Defendant No.1 and the

Plaintiff. A question was asked if the Defendant No.1 was having a booking

agency of the Defendant No.2, to which the witness of the Plaintiff stated

that he was unable to confirm. As regards the suggestion about Meena

Gupta, this witness denied that he had inducted her as tenant in respect of

the lower ground floor and also given her right to sub-let the property.

20. As far as the Defendant No.1 is concerned, he filed an affidavit by way

of examination-in-chief dated 30th July 2007. According to the Defendant

No.1, suit premises was given to him by R.C. Jain since he wanted to do it

as act of gratitude for the agency of Telco. Defendant No.1 claims not to be

aware as to who has been paying the property tax and other related taxes.

This answer by itself is a clear indication that the Defendant No.1 was not

in possession of the suit premises. If in fact had the Defendant No.1 been in

possession of the suit property, it would have been paying the property tax

and other taxes. Defendant No.1 also claims to have been unaware of the

sale deed dated 22nd July 1975 or its mutation in the name of the Plaintiff.

The witness admitted that they were having an agency of Defendant No.2.

21. The Defendant No.1 has miserably failed to prove that he has perfected

title to the suit property by adverse possession. Defendant No.1 has not

placed on record any document to show that it has been in continuous

possession of the suit property or has been paying its property taxes or

electricity charges.

22. It was sought to be asserted by the counsel for the Defendant No.1 that

the period for claiming adverse possession should be construed as

commencing on 31st July 1990 when the Defendant No.1 asserted such

adverse possession in the written statement. This submission is clearly

misconceived. The ingredients of the plea of adverse possession has been

explained by the Supreme Court in the aforementioned decision in T.

Anjanappa v. Somalingappa. In light of that law, it must be held that the

Defendant No.1 has failed to prove that it has perfected title to the suit

property by adverse possession.

23. Issue No.1 is accordingly answered against the Defendant No.1 and in

favour of the Plaintiff.

24. Issue No.2: Whether any agreement was executed between the Plaintiff and Mrs. Meena Gupta, D/o late Shri Prem Nath on 10.2.2000, with respect to the portion of the suit premises shown in green colour in the site plan annexed to the plaint? If this is proved, what is the consequence and effect of the said agreement?

The Defendant No.2 has not led any evidence at all. The original of the

agreement dated 10th February 2000 has not been placed on record.

Consequently it must be held that the agreement is not proved in

accordance with law.

25. The plea of Defendant No.2 that it came into possession lawfully by

means of that agreement a sub-letee of the premises through induction by

Meena Gupta must fail. This issue is accordingly answered against the

Defendant No.2 and in favour of the Plaintiff.

26. Issue No.3 : Whether Mrs. Meena Gupta had any power to sub-let the premises, shown in green colour in the site plan annexed to the plaint, to the Defendant No.2?

In view of the finding on Issue No.2, it must be held that Meena Gupta had

no power to sub-let the premises to Defendant No.2. The issue is answered

against Defendant No.2 and in favour of the Plaintiff.

27. Issue No.4: Whether the suit of the Plaintiff, in so far as it relates to the portion shown in green colour in the site plan annexed to the plaint, is barred by the provisions of Section 50 of the Delhi Rent Control Act, 1988?

In view of the finding on Issue Nos. 2 and 3, the suit filed by the Plaintiff

cannot be held to be barred under Section 50 of the Delhi Rent Control Act,

1988. Accordingly, this issue is also answered against Defendant No.2 and

in favour of the Plaintiff.

28. Isssue No.5: Whether suit of the Plaintiff is bad under the provisions of Order II of the Code of Civil Procedure, 1908?

The contention of the defendants that is the suit must fail under Order II

Rule 3 CPC. The suit filed before the learned Civil Judge was for an

injunction restraining the Defendant No.1 from creating third party rights in

respect of the suit property. The present suit is for recovery of possession. It

cannot be stated that the present suit constitutes part of the same cause of

action as that of suit filed before the learned Civil Judge. Consequently, the

issue No.5 is answered against the Defendants 1 and 2 and in favour of the

Plaintiff.

29. Issue No.6: Whether Defendant No.1 was inducted by predecessor-in-interest of the Plaintiff as a tenant in the portion of the suit property shown in red colour in site plan having 1590 sq. ft.

area on Ground Floor and 195 sq. ft. area on mezzanine floor?

The Plaintiff has been able to prove that the Defendant No.1 was inducted

in the red colour portion marked in the rough site plan, i.e., the ground floor

as well as mezzanine floor of the suit premises. Accordingly this issue is

answered in favour of the Plaintiff and against the Defendant No.1.

30. Issue No.7: Whether the Defendant No.1 illegally handed over the aforesaid suit premises shown in red colour in the site plan to the Defendant No.2?

The Defendant No.2 has not been able to demonstrate that it came to legal

occupation of the suit premises in question through Defendant No.1. It

appears that the Defendant No.2 has not been able to prove any document

to substantiate this plea. On the other hand, the Plaintiff has been able to

show that he had filed a police complaint against Defendant No.1 for

handing over possession of the suit premises to Defendant No.2.

Accordingly, this issue is answered in favour of the Plaintiff and against the

Defendants.

31. Issue No.8: Whether the Defendant No.2 forcibly took possession of the Lower Ground Floor/Basement portion of the suit property, shown in green colour in the site plan annexed to the plaint, and measuring 1200 sq. feet?

In view of the finding on Issue No.7, this issue is also held in favour of the

Plaintiff and against the Defendants.

32. Issue No.9: Whether the Plaintiff is entitled to possession of the suit property bearing No.1, Old Municipal No.1616 (front and rear) and new Municipal No.1704, S.P.

Mukherjee Marg, Queens Road, Delhi-110 006 as shown in red and green in the site plan?

In view of the finding on the above issues, it is held that the Plaintiff is

entitled to possession of the entire suit property including the portion shown

in red and green in the site plan. The issue is decided in favour of the

Plaintiff and against the Defendants.

33. Issue No.10: Whether the Defendants are liable to be evicted from the suit premises?

In light of the findings hereinabove, this issue is decided in favour of the

Plaintiff. It is held that the defendants are liable to be evicted from the

portion of the suit property under their respective occupation.

34. Issue No.11: Whether the Defendants are liable to pay damages to the Plaintiff for wrongful use and occupation of the suit property? If yes, at what rate and for what period?

The Plaintiff has not been able to adduce any evidence as regards damages.

However, the Plaintiff has placed on record the rent receipts marked as

PW.1/10 to PW1/13. Although the Plaintiff has claimed that the rent of

premises was increased from Rs.200/- per month to Rs.3,600/- per month,

no rent receipt has been placed on record in support of this fact. The four

rent receipts placed on record only show that even as on 31 st March 1991,

the rent of Rs.200/- was being collected. No other document has been

placed on record in support of the claim for mesne profits. Admittedly, the

rent was last paid only on 31st December 1982. The Plaintiff has also not

placed any evidence to prove the present market value of the premises in

question. Consequently this issue is decided against the Plaintiff and in

favour of the Defendants.