Sh. Subhash Gupta vs Shri B.L.Gupta Now Deceased ...
2011 Latest Caselaw 5801 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No. 766/2002

%                                                     29th November, 2011

SH. SUBHASH GUPTA                                          ..... Appellant
                               Through:   Mr.R.K.Shukla, Adv.

                      versus

SHRI B.L.GUPTA NOW DECEASED THROUGH L.Rs ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal filed under Section 96 of the Code of

Civil Procedure (CPC), 1908 impugns the judgment and decree dated 11.9.2002

passed by the Trial Court decreeing the suit of the plaintiff (now represented by

his legal heirs, the respondents) for possession and mesne profits with respect to

the second floor of the property bearing no. 308, Dr.Mukherjee Nagar, Delhi.

2. The plaintiff in the plaint pleaded the case that he was the owner of

the entire suit property bearing no. 308, Dr.Mukherjee Nagar, Delhi and which

was given to him in lieu of a plot owned by him at Hudson Line, Kingsway

Camp, New Delhi. The plot was given to the plaintiff by the Municipal

Corporation of Delhi on 24.4.1976 and whereafter he raised construction on the

plot from his own funds. The defendant was the real younger brother of the

plaintiff and was inducted as a tenant in the suit property on a monthly rental of

`2,000/- plus `50/- as water charges and when the defendant failed to pay the

rent, the plaintiff filed a suit for recovery of rent in the Civil Court. In this suit,

the defendant denied the relationship of landlord and tenant. The defendant also

took up a plea of ownership by adverse possession which was dis-allowed by the

Court. Since the defendant failed to vacate the property thereafter, the subject

suit for possession and mesne profits came to be filed.

3. The basic defence of the defendant in the written statement was that

he had become the owner of the suit property by means of adverse possession

since the year 1979.

4. After the pleadings were completed, the Trial Court framed the

following issues:

"1. Whether the claim of the plaintiff for possession is barred by limitation? OPP.

2. Whether the defendant has been in open hostile and adverse possession of the premises for more than 12 years before filing of the suit? OPP.

3. Whether the plaintiff is entitled to possession of the premises?

OPP.

4. Whether the plaintiff is entitled to claim mesne profits/damages for use and occupation of the premises and if so, for what rate and for what period? OPP."

5. Issue nos. 1 and 2 as to whether the suit was barred by limitation or

the defendant had become owner by adverse possession were decided in favour

of the plaintiff by making the following observations:-

"18. From the testimony of DW-2 i.e. the defendant it is clear that the premises in question was constructed in the year 1980 while he is claiming adverse possession in the written statement since 1979. It is also admitted by him that even prior to the occupation of the second floor he was living with the plaintiff on the ground floor. Regarding the cost of construction and the manner of construction, DW-2 has admitted that he cannot produce any documentary evidence to show that the construction on second floor was done by him. The business of cement was joint while the plaintiff alone had the authority to operate that account. The defendant has not shown any iota of evidence to prove that the construction on the second floor was raised by him. Rather a perusal of Rx.DW2/2 the pass book of the bank account of the deendant clearly shows that till the year 1997 he was not having, at any point of time an amount of Rs.10,000/- in his account. Simply by saying in the Court that the construction was raised by him is of no help to prove the factum of construction. Since when the defendant has been in adverse possession is also unsubstantiated. In the written statement the defendant says that he is in adverse possession since 1979 and after raising the construction of the second floor. While in the statement in the earlier suit and in this case as DW-2 he has clearly admitted that the construction on the second floor

was raised in the year 1980 and prior to that he was living with the plaintiff on the ground floor. Therefore, the induction of the defendant in the property bearing no.308 was prior to even the year 1979. From the statement of DW-2 it is explicit that in the year 1977 the defendant was Ex-student of a college. In other words, he was student and only possible inference can be that the plaintiff had allowed him to stay with him as a member of the family.

19. The adverse possession must be known to the plaintiff. In other words, the adverse possession must be hostile to the plaintiff. In cross-examination DW-2 himself has admitted that plead of adverse possession was first time taken by him in the year 1992 when the plaintiff filed the earlier suit.

20. Another test of adverse possession is that the defendant has been in possession and enjoyment openly and continuously in assertion to his right as owner. DW-1 has himself admitted in his testimony that son of the plaintiff is sharing a room on the second floor. Neither he got said plain sanctioned nor electricity connection. He has also not paid any house tax or other charges to any authority as owner, at any point of time. DW-2 has also admitted that there is no exclusive/separate entry to the second floor. The gate on the staircase leading to the second floor is admitted fact. Therefore, it cannot be said that the defendant at any point of time was in exclusive possession and enjoyment openly and continuously in assertion to his right as owner.

21. The testimony of DW-2 is full of contradictions and material improvements over the case he has made out in the written statement. Not only this, but the statement made by him in the earlier suit has also been retracted. Whether his adverse possession was from 1979, 1980 or 1982. It was for the defendant to prove from which date he has asserted his adverse possession as owner. Unless and until, same is proved by the defendant with cogent, reliable and trust- worthy evidence, I am of the considered opinion that the

court cannot accept the bald and wild plea of adverse possession taken by defendant. Even otherwise, the testimony of defendant as DW-2 is neither reliable nor trust- worthy." (underlining added).

6. I completely agree and adopt the findings and conclusions of the

Trial Court. It is settled law that a plea of adverse possession commences in a

wrong and is continued against a right and therefore is often looked at with

disfavour by the Courts. The plea of adverse possession has to be categorically

established by showing continuous, open and hostile possession to the true

owner by a person who claims to be in an adverse possession. The Trial Court

has referred to the deposition of the defendant and also the documents filed to

arrive at a conclusion that inconsistent pleas of adverse possession commencing

from 1979 or 1980 or 1981 were taken up. Further, the passbook filed by the

defendant as Ex.DW2/2 also showed that he hardly had enough funds to bear the

cost of the construction of suit property being the second floor. It was admitted

by the defendant that he could not produce the documentary evidence to show

the construction of the second floor by him. In the earlier suit between the

parties, the defendant had claimed that the disputed floor/suit property/second

floor was raised in the year 1980 and therefore the claim of adverse possession

of the defendant of the suit property from the year 1979 was clearly false. In fact

in 1977, the defendant was a student of a college and therefore was permitted by

the plaintiff to stay with him. Thus, the defendant failed to prove his case of

adverse possession. Mere possession is not an adverse possession because

adverse possession means assertion of a title in oneself and which has to be

hostile to the true owner, and which aspects have not been proved.

7. A civil case is decided on balance of probabilities. The balance of

probabilities shows that the appellant/plaintiff failed to prove that he had become

owner by adverse possession. No other argument or issue was urged before this

Court.

8. In view of the above, the appeal being without any merit is

dismissed, leaving the parties to bear their own costs. Trial Court record be sent

back.

VALMIKI J. MEHTA,J NOVEMBER 29, 2011 ak