Hoshiar Singh & Ors. vs Om Prakash (Now Deceased) Through ...
2011 Latest Caselaw 1197 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 23.02.2011
                   Judgment Delivered on: 28.02.2011

+        RSA No.103/2004 & CM Nos.5533/2004 & 3384/2006

HOSHIAR SINGH & ORS.               ...........Appellants
             Through:          Mr.Manish Gandhi, Advocates

                    Versus

OM PRAKASH (NOW DECEASED) THROUGH HIS L.Rs.
                           ..........Respondents
             Through: Mr.Lalit Gupta, Mr.Deepak Sahni and
                      Mr.Deepak Aggarwal, 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.

1. This appeal has impugned the judgment and decree dated

30.8.2003 which had endorsed the finding of the trial judge dated

30.9.1997 whereby the suit filed by the plaintiff Om Prakash

seeking possession of shops bearing No.902 and 902A, Mehrauli in

occupation of the defendants had been decreed in his favour.

2. The plaintiff is stated to be the owner of premise No.348,

Ward No.VIII, Meena Bazar, Mehrauli, New Delhi. He had

purchased this property on 16.9.1975 vide sale deed Ex.PW-1/1.

Defendants were stated to be in unauthorized occupation of two

shops i.e. shops bearing no.902 and 902/2A, Ward No.VIII, Meena

Bazar, Mehrauli, New Delhi which numbers had been allotted by

the Municipal Corporation without authority. Defendants in spite

of requests failed to vacate the suit property. Suit was accordingly

filed.

3. In the written statement, it was contended that the

ownership of the plaintiff was denied. Plea of adverse possession

had been set up by the defendants.

4. On the pleadings of the parties, the following four issues

were framed. They read as follows:

1. Whether the property in suit bears municipal No.348 (old) and 902/1 (new) Ward No.VIII Mehrauli and is owned by the Plaintiff? If so its effect? OPD

2. Whether Nain Singh has become owner of suit premises by adverse possession? If so its effect? OPD

3. Whether the suit is within time? OPP

4. Relief.

5. Plaintiff had examined seven witnesses; three witnesses had

been examined on behalf of the defendants. PW-1 Om Prakash was

the plaintiff himself. He had proved certified copy of the sale deed

dated 16.9.1975 as Ex.PW-1/1; the site plan depicting the location

and the identity of the suit property was proved as Ex.PW-1/2.

PW-2 Islamuddin was an attesting witness to the sale deed. In his

cross-examination he has stated that blacksmiths are in occupation

of the suit land since about 40 years. PW-4 was the clerk from

Mehrauli Zone, MCD. His testimony had been adverted to as the

vehement contention of the appellant is that he had brought the

record of the property No.901 and 902A and not of 902 which is

the property in dispute; his testimony has to necessarily discarded.

PW-5 was also Assistant Zonal Inspector of MCD. He had also

brought the summoned record. His deposition is to the effect that

Om Prakash is the owner of property no.902/1-2. PW-7 was the

brother of the plaintiff. He had in his deposition explained that the

old number of the property was 348 and the present number is

902/1; it was denotified by the Custodian of the Evacuees by orders

Ex.PW-1/2 and Ex.PW-1/3. Per contra the defendants had

produced three witnesses in defence of whom defendant no.1

examined himself as DW-1 . He had deposed that he is in

possession of the suit property since 1947; muslims were

occupying this property who have since fled to Pakistan. He has

become the owners by adverse possession. DW-2 and DW-3 had

also supported this version. The solitary document of the

defendants was Ex.DW3-/1 which was a licence of the blacksmiths

of the year 1961-62. The contention of the appellants/defendants

is that even as per this document, the defendants are in

continuous, open and adversarial possession since 1961-62. Suit

filed in the year 1978 was barred by time.

6 The trial judge had decreed the suit of the plaintiff for

possession. Relief of permanent injunction had been decreed. Title

of the plaintiff to the suit land had been proved. Plea of adverse

possession set up by the defendants had not been proved.

7 These findings were endorsed by the first appellate Court.

8 This is a second appeal. It has been admitted and on

15.11.2007 the following substantial question has been formulated:

"Whether on the evidence on record appellants have satisfied the ingredients of adverse possession on the plea that at the time of partition some Muslim abandoned the property and the same was occupied by the appellants who even effected constructions thereon without any hindrance or obstacle."

9 Thereafter on 21.2.2011 an additional substantial question of

law has been formulated; it reads as follows:

"Whether the findings in the impugned judgment dated 30.8.2003 qua the ownership and the identification of the suit property is a perverse finding? If so, its effect ?"

10 On behalf of the appellants, it has been urged that the

ownership of the suit land has not been proved. Attention has also

been drawn to the sale deed dated 14.4.1938 Ex. PW-6/1 executed

by LRs of Haji Abdul Karim in favour of the plaintiff wherein the

municipal number has been mentioned as 253. It is pointed out

that in the sale deed Ex.PW-1/1 (acted upon by the plaintiff) the

municipal number of the property has not been mentioned; the

boundaries as reflected in Ex.PW-1/1 do not match with the

boundaries as contained in the compromise decree dated

08.02.1968 passed by the Calcutta High Court. This decree dated

08.2.1968 had in fact decreed a family settlement which requires a

compulsory registration as no transfer of immovable property could

be effected without such a registration. It was hit by bar of Section

17 and 49 of the Registration Act. To support this submission

reliance has been placed 1993 RLR 462 Jaidev Singh Vs. Sujan

Singh. It is pointed out that identification of the suit land has also

not been established; in the sale deed Ex. PW-6/1 reference has

been made to municipal No.253 whereas the contention of the

plaintiff is that the municipal number was 348; when and how

municipal number 348 had thereafter changed to municipal no.902

and to 902/A and has not been explained or answered by the

plaintiff; in the absence of the correct identification of the suit land

a decree could not have followed in favour of the plaintiff. The plea

of adverse possession had also been illegally rejected by the Courts

below. Attention has been drawn to versions of PW-2 wherein he

had admitted that blacksmiths are in possession of suit land since

last 40 years. It is pointed out that this deposition of PW-2 was

effected on 24.9.1986 meaning thereby that the plaintiff himself

had admitted the possession of the defendants in the suit land

since 1946-47. The suit filed in the year 1978 was clearly barred

by limitation. Reliance has been placed upon 1997 I AD SC 534

Kalika Prasad Vs. Chhatrapal Singh (dead) to substantiate this plea

that the defendants had perfected their title by prescription and

they cannot be now ousted.

11 On behalf of the respondent, it is submitted that the

judgment of the two Courts below suffer from no infirmity and the

title of the plaintiff stand proved. There is no confusion on the

identification of the suit property. Plea of adverse possession set

up by the defendants was rightly dismissed as there was no

evidence before the court to establish this plea.

12 This Court is a second appeal Court. It has to answer the

aforenoted substantial questions of law.

13 Suit property was originally owned by Haji Abdul Karim. He

had purchased it on 14.4.1938 vide sale deed Ex. PW-6/1 from

Manik Chand. The boundaries mentioned herein reads as follows:

"North - Wall of House of heirs of Rai Chhunna Mal Saheb

Sahu

South - Open Land - Rai Bahadur Lala Sri Kishan Dass Saheb

Sahu

East - Land of passage and Gate of House Chowkidar and

Mehrabdar, Chhjali Sankeen and Nali and passage,

one Mori Khassi with land connected with the House

upto passage.

West- the land of Thorough Passage, Five Gates of

Shops, Platform with Sankeen Stones with Chhajja

& Kathera with Two Wooden Doors constructed on t

he Platform, Five Mories, Wooden Verandah and Five

Chokhats and Wall of Chhunna Mal Sahen babat

Khanja."

14 Municipal number is 253. After the death of Abdul Karim on

10.07.1957 (page 4 of the settlement) his legal heirs had entered

into a family settlement which has been recorded by the Calcutta

High Court on 08.2.1968 (page 721 of the fist appeal court record).

As per this family settlement the property had devolved upon his

three grand children namely Ikhlas Ahmed, Mumtaz Begum and

Noorjahan (children of his pre-deceased daughter Amtulla). Page

18 of this decree describes the property number as 348 situated at

Meena Bazar, Mehrauli where reference has made to the earlier

title deed dated 14.4.1938; No. 348 is thus traced back to No. 253.

In this decree the boundaries of the suit land had been described

as follows:

      "North      -      Land of Chhunna Mal
      South       -      Land formerly belonging to Mohd. Yusuf
                         Paiwalay.
      East        -      By Road
      West        -      Main Road."


15    Such a family settlement which only acknowledges the pre-

existing right of the family members does not require registration.

This has been held in the judgment of Jaidev Singh (supra) relied

upon by the appellant.

16 Plaintiff Om Prakash vide registered sale deed dated

16.09.1975 Ex.PW-1/1 had purchased five shops and a Khan having

an area of 5031 sq. feet as per the plan attached along with from

the legal heirs of Abdul Karim. The boundaries of the land

purchased by the plaintiff and as mentioned in Ex. PW-1/1 read as

follows:

      "North      - Property of Shri Chhunna Mal
       South      - Shri Om Prakash
       East       -Darshan Devi
       West       -Main Road"

17. The site plan Ex. PW-1/2 attached along with Ex.PW-1/1 has

been described as a plan of premises No.348, Ward no.VIII, Meena

Bazar, Mehrauli. The disputed portion had been depicted in red

colour. It is bounded as follows:

      "North         - Property of Chhunna Mal
       South         -Others property
       East          -Property purchased by Smt. Darshna Devi
      West           -Main road"

18. In para 1 of the plaint, the plaintiff has categorically averred

that he was owner of the premises bearing No.348, Ward-VIII,

Meena Bazar, Mehrauli, New Delhi which has been allotted a new

number. His contention is that the defendants are in unauthorized

occupation of the two shops i.e. shops No. 902 and 902/2A. PW-5

on the basis of the summoned record proved that Om Prakash is in

fact the owner of the disputed property i.e. of municipal No.

902/1-2. Identity of the suit property has also been clarified by

PW-7; who has deposed that the earlier number of the suit land

was number 348 and the present number is 902/1. These

depositions clearly establish that the suit land which was earlier

having No. 253 become No. 348 and thereafter was renumbered as

902/1-2. These were two parts of 902; i.e. 902 & 902A or may be

read as 902/1-2.

19. The boundaries as depicted in Ex.PW-6/1; the compromise

decree dated 08.02.1968 of the Calcutta High Court and in the

subsequent sale deed Ex. PW-1/1 and the site plan Ex. PW-1/2 also

all match with one another. On the North is the house of Rai

Chhunna Mal; on the South is others property; on the West is the

main road. This was (prior to 1975) the disputed property which

has since been purchased by the plaintiff. On the East is the

property of Darshan Devi who had purchased it subsequently;

earlier on the eastern side there was a road/land passage/nali.

20 The ownership and identification of the suit land has thus

been established through this chain of successive oral and

documentary evidence. Testimony of PW-1, PW-5 and PW-7 had

further corroborated this documentary evidence. There is no

confusion qua these issues. The additional substantial question of

law is answered in the negative i.e. against the appellant and in

favour of the respondent.

21. The claim of adverse possession set up by the

appellants/defendants was not substantiated. The onus to

discharge this issue was on the defendants. DW-1 had reiterated

on oath that he is in possession since 1947; earlier this land was

occupied by muslims who had fled to Pakistan, however, the only

document which he could produce was Ex. DW-3/1 which was his

licence evidencing his work as a blacksmith in the suit land since

the year 1961-62. DW-1 in his cross-examination had admitted that

electricity and water connection had been taken in the name of

DW-2 Nain Singh in the year 1955 and 1968; no such document

was produced. DW-1 had further stated that the house tax was

paid by his elder brother DW-2 but no such house tax receipts were

also produced. The impugned judgment had noted these facts. It

had noted that no documentary evidence including house tax

receipt, ration card electricity and water bills of the suit premises

had been produced by the defendants to set up their claim of

adverse possession. This fact finding had been returned in the

impugned judgment while disposing of issue no.2. The impugned

judgment had endorsed the finding of the trial judge. This was

after a re-appraisal and scrutiny of the oral and documentary

evidence. After a careful examination of this oral and documentary

evidence this finding was arrived at. At best this was a possession;

mere possession does not mature into an adverse possession. To

establish the plea of adverse possession, the possession must be

open, peaceful, uninterrupted and hostile qua its true owner. None

of this has been established by the defendants. This finding in no

manner can be said to be perverse; it calls for no interference.

22 Ex.PW-1/3 is an order dated 22.11.1955 passed by the

Assistant Custodian describing this suit property as „Khandhar‟ and

was declared as an evacuee property. Ex.PW-1/2 is the order dated

30.4.1959 passed by the Assistant Custodian denotifying this

property where again it has been referred to as a „Khandhar‟. The

denotification was in favour of Abdul Karim; property was released

as an evacuee property on 11.7.1957. Plaintiff had thereafter

purchased this property on 16.9.1975 vide Ex. PW-1/1 from the

legal heirs of Abdul Karim. Suit had been filed in 1978 i.e. within

three years of the purchase of this property. It was within

limitation. The additional substantial question of law formulated

on 15.11.2007 is also answered against the appellant and in favour

of the respondent.

15. There is no merit in the appeal. The appeal as also pending

applications are dismissed.

FEBRUARY 28, 2011                         INDERMEET KUAR, J

Nandan