Delhi High Court

Sh. Bhola Nath & Another vs Sh. Kamal & Others on 13 August, 2010

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Date of Judgment : 13.08.2010

+                  RSA No. 67/1998

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

                   Versus

SH. KAMAL & OTHERS                              ..........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 20

years and has now become the owner by adverse possession.

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

decided against the plaintiff. The defence of the defendant

claiming adverse possession was upheld; it was held that the

possession of the defendant is 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 four witnesses who had appeared on

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

of the plaintiff had been dismissed.

4. In first appeal, the Additional District Judge on 07.04.1998

had upheld the judgment of the trial court. The appeal was

dismissed. The appellate court reiterated that the defendants have

become owners by adverse possession. The relevant extract of the

finding of the first appellate court is reproduced as follows:

"The plaintiff‟s evidence is simple and brief. PW-1 Bhajan Lan and PW-2 Uma Shanker, both stated to have been seen the property in question in 1956 and 1959 respectively and have found the entire land of 400 sq. yards lying vacant. The plaintiff/appellant himself appeared as PW-3. He stated in 1951 to 1059 the land in question was lying vacant and that at the time of the court auction i.e. in 1965 there was only one shed and some jhuggies thereof, the tin shed belonging to Sardar Harnam Singh. It was also clarified by the plaintiff that the auction was not in execution of any money decree but was on account of a decree for partition of a joint Hindu family property which was acquired by his grand father. He also stated that his grand father had been visiting the land in question. The suit was filed in 1969. Thus according to the plaintiff the defendants‟ possession was for less than 12 years. The defendants produced 4 witnesses. The defendant no. 1 has been proceeded ex-parte in the matter. The defendant no. 2 deposed that the whereabouts of the defendant no. 1 are not known for last more than 25 years. The wife of defendant no. 1 who is also mother of the defendant no. 2 also appeared in the witness box. The wife of the defendant no. 1 Smt. Batto Devi deposed in her examination in chief that she and her family occupied the land

soon aftr partition, leveled the land and constructed a room. The ration cards of the members of the family were produced by her which was admitted in evidence as Ex. DW 1/1 and DW 1/3. She deposed that Bhola Nath had been visiting the place but he never interfered in her possession. She says that she was also registered as Voter from the suit land. In her cross- examination the statement that Bhola Nath had been visiting the place has not been assailed at all. The defendant no. 2 Budhu Ram has appeared as DW-5. He deposed that ever since the knowledge dawned on him he has bee seen himself living in the same suit land and that initially there was a jhuggi and subsequently he raised the construction about 16 years prior to his testimony i.e. in 1968. There is hardly any cross examination to the statement of DW-5 excepting the suggestion that when the auction took place he was not living there. DW-3 and DW-4 witnesses who deposed about the contents of the documents without producing the documents themselves. The evidence of these two witnesses is not admissible in evidence. DW-2 deposed that the DW-1 and her sons had been living on the suit land since 1947. His evidence remains unshaken in cross examination. The Ld. Trial court has observed that the documents DW 1/1 and DW 1/3 and the voter list Ex. DW 1/4 show the possession over the land by the DW-1 Smt. Batto and her sons. The Ex. DW- 1/4 shows that Batto Devi had been living on the land in 1954 . Ex. DW 1/1 to DW 1/3 ration cards show her residence on that land, in or around 1952. In view of these 4 documents it is difficult to believe the testimony of the witnesses of the plaintiff who say that they visited the land for the purpose of purchasing the same in 1956 and 1959 and found the land entirely vacant. The testimony of DW-1 that she and her family leveled the land and raised the structure to provide a home for themselves has not been sufficiently challenged in her cross-examination. Similarly the testimony of the defendant o. 2 has also gone more or less unchallenged. Thus I find myself in agreement with the ld. Trial court that the defendants had been actually occupied the suit land for more than 12 years prior to the filing of the suit."

5. This is a second appeal. On 22.11.1999; the appeal was

admitted and the following substantial question of law was

formulated:

"Whether on findings by the lower appellate court, the respondents could prescribe title by adverse possession on the facts and circumstance of this case ?"

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 respondent has addressed their submissions. Record has been

perused.

7. On 30.01.1985, the suit of the plaintiff, Sh. Bhola Nath, was

dismissed by Sub Judge, Sh. R.K. Yadav. On 07.04.1998, the

appeal was dismissed by learned Additional Judge.

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 voter list Ex. DW 1/4

and ration cards Ex. DW 1/1 to DW 1/3 for the year 1952

leading to the necessary finding that the voter would not be

living in a plot but in a constructed portion. DW 1 Smt. Batto