Delhi High Court

Sh. Bhola Nath & Another vs Sh. Kishan Lal on 13 August, 2010

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Date of Judgment : 13.08.2010

+                  RSA No. 159/1978 CM No. 560/2003

SH. BHOLA NATH & ANOTHER
                                                 ...........Plaintiff
                   Through:    Ms. Bharti Kocchar, Advocate.

                   Versus

SH. KISHAN LAL                                  ..........Respondent
             Through:          Mr. Prem Singh Nagar with
                               Mr.Jaiveer Singh Nagar, Mr. Virender
                               Kumar and Ms. Anuradha, Advocates.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                   Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J. (Oral)

1. The plaintiffs have filed the present suit seeking a decree of

possession of a plot no. 4790, Roshanara Road, Arya Pura, Delhi, as

described in para 3 of the plaint. The father of plaintiff no.1, Sh.

Amar Nath, had purchased the property in a court auction on

15.01.1965. The plaintiffs i.e. his son and widow are the legal heirs

of the deceased. Defendant is in unauthorized occupation of this

plot since January, 1962. In spite of requests, the defendant had

failed to deliver the possession of the suit property to the plaintiffs.

2. In the written statement, the defence of the defendant was

that he had been in continuous possession since last more than 25

years and has now become the owner by adverse possession.

3. The trial judge had framed six issues. All these issues were

decided in favour of the plaintiff. The defence of the defendant

claiming adverse possession was rejected; it was held that the

possession of the defendant is not open and hostile to the title of

the plaintiff for the continuous period as claimed by him. The court

had scrutinized the testimony of three witnesses who had appeared

on behalf of the plaintiff and two witnesses who had appeared on

behalf of the defendant as also the documentary evidence. The suit

of the plaintiff had been dismissed. Damages were, however, not

awarded.

4. In first appeal, the Additional District Judge on 04.05.1978

had set aside the judgment of the trial court. The appeal was

allowed. The appellate court held that the defendants have

become owners by adverse possession. The relevant extract of the

finding of the first appellate court are reproduced as follows:

"It was validly contended by the learned counsel for the appellant that from the fact that the name of the defendant appeared in the voters‟ list Ex. DW3/1 to Ex. DW3/3 since the year 1954-55, it should be presumed that in all reasonableness that there would have been in that year in existence the aforesaid tin shed on the plot in dispute raised by the defendant-appellant for his residence as also for the residence of his family members. Even though Kanahaya Lal DW.1 did not state in so many words as to when Kishan Lal had constructed his tin shed he was specific in stating that defendant-appellant had been living in the disputed plot for the last about 19/20 years and the residence of a man with his family on the open plot without structure thereon looks unthinkable. The learned trial court was wrong in remarking that Chander DW2 had not stated as to since when Kishan Lal had built the tin shed, because in his testimony he has clearly stated that he had been seeing the defendants residing in jhuggi made of bricks walls a tin shed for the last about 18/20 years. He further stated in his cross-examination that he was the owner of the plot below. Thus the raising of the tin shed with bricks walls on the plot in dispute by the defendant Kishan Lal since 1954- 55 stands proved as a convincing fact and cannot

be rebutted by house tax assessment list or the letters Ex. P4 and Ex. P5 referred to above. The raising of the aforesaid structure on the plot in dispute by the defendant was obviously an open act of hostility against the title of the true owner. It was only on this point that the learned trial court had given finding against the defendant-appellant for which reason the possession of Kishan Lal was not held to be adverse possession. The learned counsel for the parties did not differ upon the definition of adverse possession which as stated in Ram Lal and Others Vs. Chetu alias Chet Ram and Others, AIR 1958 Punjab 355 reads as follows:-

"Adverse possession, as the words imply, must be actual possession of another‟s land with intention to hold it and claim it as his own. It must commence with the wrongful dispossession of the rightful owner at some particular time; it must commence in wrong and must be maintained against right. It must be actual, open, notorious, hostile, under claim of right, continuous and exclusive and maintained for the statutory period. Indeed it should be so open and exclusive as to leave no doubt as to the intention of the occupant, so notorious that the owner may be presumed to have knowledge of the adverse claim and so continuous as to furnish a cause of action every day during the required period."

The continuity of possession was not doubted by the learned trial court and the same is established from the evidence on the record of the case.

No other point was urged at the bar and in view of the above discussion, the finding of the learned trial court on issue no. 3 is reversed and it is held that the defendant-appellant had become owner by adverse possession of the plot in dispute and consequently accepting the appeal, the impugned decree and judgment are set aside and the suit of the plaintiffs-respondents is dismissed leaving, however, the parties to bear their own costs, throughout."

5. This is a second appeal. On 09.10.1978 the appeal was

admitted and the following substantial question of law was

formulated:

"Whether the respondents have become owners by adverse possession of the plot of land in question?"

6. List of dates on behalf of the appellant is on record. The

appellants, in spite of notice, have not appeared before this court.

The respondents have addressed their submissions. Record has

been perused.

7. On 08.04.1974, the suit of the plaintiff, Sh. Bhola Nath, had

been decreed for possession of the suit property. On 04.05.1978,

the appeal was accepted. It was held that the defendants have

become owners by adverse possession; suit of the plaintiff was

dismissed.

8. Perusal of the record shows that the findings of the first

appellate court call for no interference. In S.M. Karim Vs. Bibi

Sakina reported in AIR 1964 SC 1254, Justice Hidayatullah, in the

context of adverse possession had made the following observations

which are relevant to the instant case:

"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."

9. To establish the plea of adverse possession, there must

be a continuous and uninterrupted possession of the land in

question claiming right, title and interest hostile to the right

title and interest of the original owner. The question as to

whether the defendant has perfected his title as adverse

possession has to be seen in the context of the facts of each

case.

10. In the instant case, the defendants had proved on

record that their names appeared in the voters list Ex. DW

3/1 and DW 3/2 for the year 1953-54 leading to the necessary

finding that the voter would not be living in a plot but in a

constructed portion. DW 1, Sh. Kanhiya Lal had stated that