Shri Hoshiar Singh Negi vs Shri Durga Dass Bedi (Deceased) ...
2011 Latest Caselaw 2558 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 12.05.2011

+                    R.S.A.No. 85/2008 & CM No. 5183/2008

SHRI HOSHIAR SINGH NEGI                          ...........Appellant
                  Through:           Mr. J.S. Bakshi with
                                     Mr. Amitesh Singh Bakshi,
                                     Advocates.
                     Versus

SHRI DURGA DASS BEDI (DECEASED)
THROUGH HIS LEGAL HEIR SHRI BALDEV BEDI
                                         ..........Respondent
                  Through: Mr.Manbir      Singh   &    Mr.
                            Dilpreet Singh, 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 This appeal has impugned the judgment and decree dated

15.3.2008 which had reserved the finding of the trial judge dated

20.7.2005. Vide judgment and decree dated 20.7.2005 the suit

filed by the plaintiff Durga Dass Bedi seeking possession and

damages qua the suit property i.e. the property bearing no.T-

5133, Pusa Lane, New Delhi had been dismissed. The impugned

judgment had decreed the suit.

2 The case of the plaintiff is that the plaintiff had migrated

from Lahore Cantt in 1948; he occupied the aforenoted piece of

land where he constructed a portion for his residential

commercial use. This was at his own cost. The area which was

for commercial user was given number T-5133, Pusa Lane, New

Delhi. Plaintiff had in fact been called upon by the government to

pay damages for use and occupation of the government land w.e.f.

1952 which he has since paid. The Municipal Corporation of Delhi

(MCD) has also assessed property tax qua the suit property and

the bills were raised in the name of the plaintiff. Plaintiff has

been paying property tax. In October 1970 defendant approached

the plaintiff and sought permission from him for user of the shop

on a licence basis. This was reduced into writing vide a letter

dated 31.10.1970. On 31.7.1974 the defendant reaffirmed his

occupation as a licencee for this part of the property. Licence fee

was being paid regularly at the rate of `250/- per month to the

plaintiff; this was paid up to 1980. In March 1981 defendant

wanted to make some alteration in the demised premises which

was objected by the plaintiff. On 25.5.1981 vide a notice he

terminated the licence of the defendant. Defendant had

thereafter become an unauthorized occupant. In spite of requests

he has failed to vacate the sit property. He has also not paid any

damages. Present suit was filed.

3 Defendant contested the suit. It was stated that the land in

occupation of the defendant is a "public premises"; it was denied

that a superstructure was constructed by the plaintiff; contention

was that the walls around a kiosk were raised by the plaintiff up to

a height of 8 feet. Plaintiff may have been in unauthorized

occupation of the suit land at one time but since 1974 the

defendant has been shown in occupation and possession of the

suit land. Delhi Development Authority had called upon the

defendant to pay damages for the period 01.4.1971 to 31.3.1980

which was to the tune of `1263.60 which has since been paid. The

land being "public premises" suit was not maintainable.

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

were framed:

1.Whether the plaintiff has locus standi to file the present suit? OPP

2.Whether the plaintiff is entitled to the decree of possession as prayed for?

3.Whether the plaintiff is entitled to damages? If so at what rate?

4.Relief.

5 The following additional issue was also framed on

06.4.2005:

"Whether the order of Estate Officer , DDA dated 19.09.2003 has any bearing on the suit of the plaintiff filed in the year 1983. If so to what effect?"

6 Oral and documentary was led. Trial judge was of the view

that the case of both the parties is that the land in question is

government land; possessory title was in dispute. Possession of

the plaintiff was prior in time to that of the defendant but since

the defendant has since been assessed by the DDA for damages he

is regularly paying damages; plaintiff has no locus standi left to

file present suit; suit was dismissed.

7 The impugned judgment had reversed this finding. Court

was of the view that the letters executed by the defendant had

been admitted by him i.e. the letters Ex.PW-4/4 and Ex.PW-4/5

evidencing the fact that the defendant was a licencee of the

plaintiff; plaintiff was entitled to possession of the suit land; suit

was decreed.

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

04.4.2008 the following substantial question of law was

formulated:

(a) Whether Ex.PW-4/4 and Ex.PW-4/5 could be relied upon to order ejectment of the appellant in the teeth of DDA directly assessing appellant to damages under DDA and the respondent having lost the right to the suit property under DDA?

(b) Whether the learned First Appellate Court was justified in reversing the decree passed by the learned Trial Judge in the teeth of the fact that respondent claimed interest in the suit property under DDA alleging that the respondent was assessed to damages by DDA which right was lost when DDA stopped assessing respondent to damages and directly started levying damages on the appellant.

9 On behalf of the appellant, it has been urged that the

judgment of the trial court is illegal; it had arbitrarily and without

any cogent reason reversed the finding of the trial Judge.

Admittedly, the appellant is now in occupation of the suit land

since 1971; he has been assessed to damages and the order of the

Estate Officer dated 19.09.2003 evidenced this fact; this order of

the Estate Officer has also attained a finality. It is submitted that

the rights of the appellant cannot now be disturbed. The counsel

for the appellant has placed reliance upon the judgment reported

in IR 1961 Punjab 98 Hari Kishan Dass & Another Vs. Union of

India to support his submission that the disputed land is a public

premises and proceedings under the Public Premises Act would

alone lie. Reliance has also been placed upon AIR 1987 SC 2192

D. Satyanarayana Vs P. Jagdish as also another judgment of the

Apex Court reported in AIR 1987 SC 1656 Mangat Ram & another

Vs. Sardar Meharban Singh & Others to substantiate his

submission on the premise of Section 116 of the Evidence Act i.e.

doctrine of estoppel; it is pointed that the plaintiff is now estopped

from claiming back the premises from the defendant who is now

in the rightful occupation of the same and in his own independent

status.

10 Arguments have been countered. It is pointed out that the

judgment of the trial court suffers from no perversity. The

possessory title of the plaintiff had been recognized; he was

admittedly in possession of the suit land prior in time to the

defendant. The impugned judgment had also appreciated the legal

position in its correct perspective by placing reliance upon the

judgment of the High Court AIR 1973 Delhi 186 Phiraya Lal Kapur

Vs. Jia Rani & another as also another judgment of the Apex Court

reported in (1985) 2 SCC 332 Sant Lal Jain Vs. Avtar Singh.

11 Record has been perused. This was a suit for possession.

Admittedly even as per case of the defendant, the plaintiff was in

possession of the suit land prior in time to the defendant. The

plaintiff was in possession of the suit land since 1952; in 1971 he

had permitted the defendant to use the suit land as a licensee. It

is also not in dispute that since 1971 damages qua the suit land

are being paid by the defendant. Documents Ex. PW-4/4 and Ex.

PW-4/5 are also admitted documents. They are dated 31.10.1970

& 31.07.1974 respectively. These are documents of license

created by the plaintiff in favour of the defendant whereby the

defendant has admitted that he is a licensee of the plaintiff; he has

agreed to pay license fee of `250/- per month with a further

understanding that his license may be terminated by a 24 hour

notice. Both these documents are admitted documents.

12 It is in this factual scenario and background that the

contentions of the appellant have to be appreciated.

13 Record shows that this was a possessory suit. The plaintiff

was a prior possessor of the suit land. The defendant was claiming

only through the plaintiff; his claim that he has an independent

status is incorrect as Ex.PW-4/4 & Ex. PW-4/5 clearly show that

the earlier possessor of the land i.e. plaintiff had granted a license

to the defendant. There is no doubt that this was a no man's land;

neither was it owned by the plaintiff; nor was it claimed to be

owned by the defendant. Both were in unauthorized occupation

the Government land. The concept of possessory title is a

recognized concept of law. It is not alien. In the case of Phiraya

Lal Kapur a bench of this had in this context noted as follows:-

7. What was the nature of their possession ? They clearly had no legal title such as of ownership or of lessees to the land. But in the English common law, possession has always been regarded as a good title of right against any one who cannot show a better. As observed by Salmond in his "Jurisprudence", Ninth Edition, page 408, "a wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself". This theory was adopted in Indian law and embodied in section 8 of the Specific Relief Act, 1877 now succeeded by section 5 of the Specific Relief Act, 1963. As distinguished from section 9 of the old Specific Relief Act and section 6 of the new one, suits under section 8 of the old Act and section 5 of the new Act could be filed on the basis of title by owners as well as non-owners. In respect of owners, this remedy could be said to be proprietary while in respect of non-owners the remedy could be viewed as possessory. In the European civil law following the Roman law this distinction is well known and is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit). This duplication of remedies was, however, avoided in the English and the Indian law by the operation of the following three rules:-

(1)Prior possession is prima fade proof of title. In a suit for possession based on title, the plaintiff need do nothing more than prove that he had an older possession than that of the defendant. The law will then presume from this prior possession a better title in the plaintiff according to the maxim Old prior est tempore potior est jure, (compare section 110 of the Evidence Act.)

(2) A defendant is always at liberty to rebut this presumption by proving that the better title is in himself. (3) A defendant is not allowed to set up the defense of jus tertii, as it is called; that is to say, he will not be heard to allege, as against the plaintiff's claim, that neither the plaintiff nor the defendant, but some third person, is the true owner. The principle is

"Let every man come and defend his own title. As between A and B the right of C is irrelevant".

8 In this analysis of the legal position, we are supported by the decision of the Supreme Court in Nair Service Society Ltd. v. K. C. Alexander Air 1968 SC 1165"

14 Present suit was based purely on prior possession; it was

based on possessory title. The possession of the plaintiff was

admittedly prior in time to that of the defendant; such a right is

also inheritable and can be transferred. They had also been noted

in para 10 of the judgment of Phiraya Lal Kapur (Supra). The

submission of learned counsel for the appellant is that the plaintiff

is claiming through his father Durga Dass who himself had no

right in the land and the plaintiff could not inherit this possessory

title is thus an argument which must fail. Reliance upon the order

passed by this Court in W.P.(C) No. 6125/2001 R.L.Kapur Vs. DDA

on 05.10.2001 was in a different context. In this case, the DDA

had sought to dispossess the petitioner; petitioner had claimed

allotment under the Gadgil Assurance Scheme; no land had in fact

allotted to the father of the petitioner under Gadgil Assurance

Scheme; question of the petitioner deriving title through his

father did not arise. Ratio of this order is nowhere applicable to

the present scenario.

15 Contention of learned counsel for the appellant that he is

being paying damages to the DDA and this has been recognized by

the Estate Officer in his order dated 19.09.2003; as such the

appellant has become the recorded owner in the record of the

DDA; further contention is that the plaintiff cannot seek his

eviction is an argument which is again misplaced. In this context,

in the judgment of Phiraya Lal Kapur it has been noted herein as

under:-

"13. In practice, the working out of the rights of possession of the true owner and of the prior possessor as against the subsequent. possessor may, however, lead to some difficulty. For instance, a subsequent possessor may be faced simultaneously with separate claims not only for possession but also for damages for use and occupation by the true owner as well as the prior possessor. Two alternative solutions of this difficulty may be envisaged. The possession from the subsequent possessor may be recovered either by the prior possessor or by the true owner whoever manages to get it first by the legal process. The liability of the trespasser to hand over possession or to pay mesne profits to the holder of the possessory title or to the true owner is only one and indivisible. Once either of them recovers possession, the other will not be able to get it from the subsequent possessor (that is the trespasser). Alternatively, the subsequent possessor (that is the trespasser) may persuade the Court for the consolidation of the separate claims of possession by the prior possessor and the true owner or he may persuade the Court to join the prior possessor as well as the true owner as parties in one suit so that the Court may decide both the claims against the trespasser in the same suit. The same will be true of separate claims by the prior possessor and the true owner against the trespasser for damages for use and occupation. The trespasser will not have to pay damages for use and occupation to both the prior possessor and the true owner. Payment to either of them will be a sufficient defense to such a claim

against him by the other. For, as against him both of them were entitled to make a claim. He cannot choose between them but is answerable to satisfy either of them who manages to make good his claim against the trespasser before the rival claimant does so."

16 In the present case plaintiff/respondent under instructions

from his client states that he is not pressing his claim license fee.

Even if the appellant/defendant has made payment of damages

qua the suit property, the submission of the plaintiff that he is

claiming no such charges from the appellant is answered in the

aforenoted extract noted hereinabove.

17 The Apex Court in the case of Sant Lal Jain had noted that a

licensee who is admittedly a licensee would always remain

licensee; his status cannot be changed. In this context, it is noted

herein as under:-

"The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from some one else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of property to the appellant even after the termination of the licence and the institution of the suit."

18 The appellant was a licensor in the suit land. This is evident

from Ex.PW4/4 & Ex. PW-4/5. This position is also not in dispute.

Present case was a case of possessory title; the plaintiff having

prior possession was entitled to recover it back from his licensee;

license admittedly stood validly revoked. The impugned judgment

on no count suffers from any perversity.

19 Substantial questions of law are accordingly answered in

favour of the respondent and against the appellant. There is no

merit in the appeal. Appeal as also pending application are

dismissed.

INDERMEET KAUR, J.

MAY 12, 2011 a