Mawasee (Decd.) Thr. L.R.S & ... vs Jamia Milia Islamia University & ...
2010 Latest Caselaw 377 Del

3, 4 & 5
*IN THE      HIGH    COURT         OF   DELHI   AT   NEW   DELHI

+     W.P.(C) Nos. 4929/2007, 4930/2007 & 5292/2007


%                              Decided on : 22nd January,2010.

      MAWASEE (DECD.) THR.
      LR'S & ORS.            ..... Petitioners in WPC 4929/2007
      RUSTAM (DECD.) THR.L.RS
      & ORS.                ..... Petitioners in WPC 4930/2007
      SHAFIQUL HASSAN THR.
      L.R'S & ORS.         ..... Petitioners in WPC 5292/2007
                     Through Mr.Sunil Chauhan, advocate.

                  versus

      JAMIA MILIA ISLAMIA
      UNVIERSITY & ORS.                     ..... Respondents
                       Through Ms. Jaya Goyal, Mr.Arvind Biswal,
                       Ms.Warisha Farasar, advocates.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

      1. Whether Reporters of local papers may be
      allowed to see the judgment?
      2. To be referred to the Reporter or not ?
      3. Whether the judgment should be reported
      in the Digest ?
                               ORDER

1. Admit. With the consent of the parties these Writ Petitions are

taken up for final disposal.

2. The petitioners herein have challenged Order dated 6th July,

2007 passed by the learned Additional District Judge upholding the

Order passed by the Estate Officer and dismissing the appeals filed

WPC Nos.4929-30/2007 & 5292/2007 Page 1 by the petitioners herein under Section 9 of the Public Premises

(Eviction of Unauthorised Occupants) Act, 1971 (hereinafter

referred to as the Act, for short).

3. The principal contention raised by the petitioners before the

Estate Officer and the learned Additional District Judge was that the

petitioners have become owners of the land in their occupation by

adverse possession and they have constructed buildings on the said

land. The said contention has been examined at length both by the

Estate Officer and learned Additional District Judge. Claim for

adverse possession or title by prescription is established only when

the claimant is in actual physical possession, exclusive, open,

uninterrupted, notorious and hostile to the true owner for a period

exceeding 12 years. Long and continuous possession by itself does

not constitute adverse possession, if it is either permissive

possession or possession without possendendi. Further lis based

on title and adverse possession are mutually inconsistent and the

latter does not begin to operate till the former is renounced. Unless

the person in possession of the property has requisite animus to

possess the property, hostile to the title of the owner, period of

prescription does not commence. (Refer, L.N. Aswathama and

another versus P. Prakash JT 2009 (9) SC 527 and other cases

referred to in the said judgment).

WPC Nos.4929-30/2007 & 5292/2007 Page 2

4. Onus to prove that the petitioners have been in occupation of

the land and their possession was open, hostile to the true owner

was on the petitioners. The Estate Officer and the learned Additional

District Judge have both held after examining the evidence on

record that the petitioners have not been able to discharge the said

onus. In fact the plea of the petitioners before the Estate Officer and

the learned Additional District Judge was that they have been in

possession of land under the title inherited from their forefathers

and the respondent-University is not owner of the said land. Plea of

adverse possession and of title are mutually inconsistent. A person

claiming title and right there under should be clear about the origin

of the title of the property and the claim should be elucidated. When

a plea of adverse possession is projected, it is inherent in the plea

itself that someone else is the owner of the property and the

claimant can plead and prove his assertion of independent, hostile

adverse possession to the knowledge of the actual owner during the

entire period of 12 years.

5. The respondent-University has pointed out that the land in

question located in Khasras 68, Village Okhla was transferred to

them by way of gift deed dated 14th November, 1950. The said

document is registered. The total gift was for an area of 24 bighas

and 11 biswa of land. The respondent university claims title on the

WPC Nos.4929-30/2007 & 5292/2007 Page 3 basis of the said gift deed. The petitioners have failed to produce

any document of title.

6. The respondent university had earlier initiated eviction

proceedings against some other occupants under the Act. The

eviction proceedings and the order passed by the learned Additional

District Judge upholding the eviction orders were made subject

matter of Writ Petition (Civil) No. 3772/2002 and other connected

matters titled Mohd. Shamim versus Jamia Milia Islamia University

and others. These writ petitions were decided on 31st August, 2004.

In these writ petitions, plea with regard to the demarcation of land

was raised pointing out that Khasra no. 68, Village Okhla had much

larger area and the petitioners therein were in occupation of area

other than 24 bighas and 11 biswas of land which was transferred to

the respondent-University under the Gift Deed. The petitioners

therein had also relied upon the revenue records and maps. In view

of the said plea, demarcation was directed and on the basis of the

demarcation report submitted by the Tehsildar, the said writ

petitions were dismissed. Learned Single Judge while dismissing the

writ petitions had observed that the petitioners therein were

encroachers on the land and had no title deeds. It was pointed out

that U.P. Government was the owner of the said Khasra and had

transferred a part of the said Khasra to the respondent-University.

WPC Nos.4929-30/2007 & 5292/2007 Page 4 Learned Single Judge had further observed that it would not be

proper to interfere in exercise of jurisdiction under Article 226 of the

Constitution of India. Review application filed by the petitioners

therein was also dismissed. The petitioners therein had filed Letters

Patent Appeal which was dismissed and the matter was taken

before the Supreme Court but the Special Leave Petition was

dismissed. Thus the contention of the petitioners herein that the

land in their occupation is not subject matter of the Gift Deed dated

14th November, 1950 and does not form part of the 24 bighas and 11

biswa of land transferred to the respondent-University is rejected.

Both the Estate Officer and the learned Additional District Judge

have examined the said issue in the light of the demarcation report

which has been accepted in Writ Petition (Civil) No. 3772/2002 and

other connected cases.

7. Learned counsel for the petitioners submitted that the notice

under Section 4 of the Act was void as the same referred to land in

Khasra No. 68 measuring 1000 sq.ft. in village Okhla, New Delhi and

no specific area was stated. This contention cannot be accepted in

view of the demarcation which was already undertaken and

accepted in Writ Petition (Civil) No. 3772/2002 and other connected

matters. This contention was also raised before the learned

Additional District Judge. It was observed that no separate or new

WPC Nos.4929-30/2007 & 5292/2007 Page 5 demarcation was carried out by the respondent-University

immediately before initiating action because the question of

demarcation was settled in the said writ petition. Further prior to

initiation of proceedings survey was carried out on the basis of

demarcation and thereafter proceedings were initiated. The

petitioners have failed to produce any documents to prove title

before the Estate Officer, learned Additional District Judge and this

Court.

8. Learned counsel for the petitioners submits that the

respondent-University had filed a civil suit in 1980 against one of the

petitioners-Mr.Rustam Khan and husband of one of the

petitioners-Ms. Rashidan. It is stated that the said civil suits were

withdrawn on 6th February, 1985. In the Writ Petition it is stated that

in the said civil suits, the respondent-University had admitted that

Mr.Rustam Khan and husband of Ms. Rashidan were in possession

since 1971. The said aspect was examined by learned Additional

District Judge in Appeal No.83/2006 in the case of Mr.Rustam Khan

and other connected matters in paras 4 and 5. It is has been held

that Mr.Rustam Khan had earlier filed a suit for injunction against

the respondent-University which was partly allowed by the trial

Court but the decree was set aside by the appellate Court and the

said decree became final. The appellate court had held that

WPC Nos.4929-30/2007 & 5292/2007 Page 6 construction of two huts and two khors would not mean that the true

owner was excluded and had lost title of the land. In view of the said

decree, learned Additional District Judge held that no rights could

flow in favour of the petitioner-Mr.Rustam Khan. Learned Additional

District Judge had thereafter referred to the oral and documentary

evidence of the parties and has come to the conclusion that the

respondent-University was owner of the land in question which was

occupied by Mr.Rustam Khan. It is also an admitted case of the

parties that the land had become subject matter of proceedings

under the Land Acquisition Act and an Award dated 95/83-84 was

made. It is pointed out that in these circumstances, the suit filed by

the respondent-University against Mr.Rustam Khan and husband of

Ms. Rashidan was withdrawn in 1985. Subsequently, on 19 th

November, 1999 the acquisition proceedings were dropped and the

land was denotified from acquisition.

9. Reference was made to the earlier suits filed by the

respondent-University and before the Estate Officer and Additional

District Judge it was pleaded that the decision in the said suits

would operate as res judicata and principles of Order II, Rule 2 of the

Code of Civil Procedure, 1908 apply. The principles of res judicata

are not applicable as there was no decision on merits. Principles

under Order II, Rule 2 of the Code also will not apply as the

WPC Nos.4929-30/2007 & 5292/2007 Page 7 respondent-University became a Central University only in 1998.

Thereafter provisions of the Act became applicable. Further as

explained above, the land in question had become subject matter of

acquisition pursuant to award published in the year 1982-83 and

therefore the respondent-University had dropped the said

proceedings.

10. Learned counsel for the petitioners submitted that eviction

proceedings were initiated in the year 1997 and as the land was

denotified under the Land Acquisition Act in 1999, it is submitted

that proceedings before the Estate Officer under the Act at the time

of initiation were void and without jurisdiction. It is submitted that

the land in question was not "public premises" under the Act. A

similar contention has been considered by a learned Single Judge of

this Court in C.M.(M) Nos. 335-336/1988 titled Shri Abdul Hannan

(decd.) through L.Rs versus Shri S.N. Aggarwal & another decided on

23rd April, 2001. Learned Single Judge referred to Sections 16 and 17

of the Land Acquisition Act, 1894 and after referring to several

judgments held that till possession of the land is taken by the

Government/State, the title of the land continues to vest with the

original owner. After examining the facts it was held that the

possession of the land always continued with the

respondent-University and did not vest with the Central Government

WPC Nos.4929-30/2007 & 5292/2007 Page 8 under Sections 16 or 17(2) of the Land Acquisition Act, 1894 and

accordingly the Estate Officer was competent to initiate eviction

proceedings and pass eviction orders. Ratio of the said decision is

equally applicable to the present case. Moreover, it is the case of the

petitioners that they were in actual physical possession of the

property in 1997 and even thereafter. The petitioners have not

established that the Central Government as per their records had

taken possession, actual or symbolic, of the property. In these

circumstances it is not possible to accept the contention of the

petitioners that possession of the land was taken over by the Central

Government and the land was not property of the

respondent-University.

11. In view of the aforesaid discussion, I do not find any merit in

the present Writ Petitions. Learned counsel for the petitioners

submits that due to extreme cold weather in Delhi, interim

protection may be granted to the petitioners for some time. Learned

counsel for the respondent-University fairly states that they shall

not take any coercive steps to execute the orders passed by the

Estate Officer and upheld by the learned Additional District Judge for

a period of one month.

12. It may be noticed that possession of the property in

occupation of Mr.Rustam Khan has already been taken over by the

WPC Nos.4929-30/2007 & 5292/2007 Page 9 respondent-University and this statement will not operate in his

case.

SANJIV KHANNA, J.

JANUARY 22, 2010.

        P/NA




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