Tek Ram (Deceased) Through Lrs & ... vs Shri Prehlad Singh & Ors.
2011 Latest Caselaw 4567 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 385/2002

%                                                 16th September, 2011

TEK RAM (DECEASED)
THROUGH LRS & OTHERS                                    ...... Appellants

                                Through:    Mr. Sajan K. Singh, Advocate.

                          VERSUS

SHRI PREHLAD SINGH & ORS.                               ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the 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?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal under Section

96 CPC is to the impugned judgment and decree dated 18.3.2002, and

by which judgment and decree, the court below decreed the suit of the

respondents/plaintiffs declaring them to be the owners of the property

being H.No 5797/XI situated in Basti, New Chandrawal, Near Subzi

Mandi, Delhi.

2. The claim for declaration of ownership was on the ground of law

of prescription contained in Section 27 of the Limitation Act, 1963, read

with Article 65 of the Schedule of the Act on the ground that the

respondents/plaintiffs were in open, continuous and hostile possession

of the property since 1910 and therefore, were bound to be declared as

owners of the property.

3. Thus, the only issue was as to whether the respondents/plaintiffs

to the knowledge of the owners had declared themselves to be the

owners of the suit property and were in actual physical possession

thereof for 12 years, inasmuch as after the expiry of a period of 12

years specified in Article 65 of the Schedule of the Act, the ownership

interest in the property itself gets extinguished by virtue of law of

prescription contained in Section 27 of the Act, thereby, making the

persons in actual physical possession the owners of the property.

4. The relevant issue framed by the trial court in this regard was

issue no.2 and with respect to which the relevant observations of the

trial court are contained in paras 13 to 15 of the impugned judgment

which read as under:-

"13. Before appreciating the evidence of the parties, for the purpose of determining certain facts as alleged in the plaint, it is necessary to go to the pleadings of the parties. In the plaint the plaintiffs in para 3 had specifically pleaded that in or about 1959, the defendants and their seven associates tried to interfere in the enjoyment of the suit property of the plaintiff and Sh. Hukam Singh father of the plaintiffs No.2 to 4 and grand-father of defendants No.5 to 9 and wanted to take forcible possession from them whereupon plaintiff No.1 and Sh. Hukam Singh filed a civil suit for injunction against the defendants and their seven associates, registered as 224/1959 in the Court of Sh. Shiv Dass Tyagi, the then ld. SJIC, Delhi; that in the suit the defendants had claimed to be the owner of the site of the suit property but admitted the possession of the plaintiffs; that the trial court found that the suit property was in possession of the plaintiff and passed

a decree restraining the defendants from interfering with the enjoyment of the plaintiffs, physical possession of the suit property and from dispossessing them. It has also been pleaded that the defendants filed an appeal against the said decree, which was dismissed and the decree of the trial Court was maintained. In para 3 of the WS on merit, the defendants had neither denied nor disputed these facts pleaded in para 3 and therefore, in the absence of any denial much less than specific denial whatever has been pleaded by the plaintiffs in para 3 are deemed to be admitted by the defendants by the provision contained u/o 8 Rule 5 CPC. On the other hand in the testimony of D.W.s, filing of the suit for injunction by the plaintiffs was admitted and granting of the decree against the defendants was also admitted and at the same time filing of appeal and dismissal of the same is also admitted on evidence. Accordingly, it is proved beyond all disputes that in 1959 in a suit for permanent injunction filed by the plaintiffs, the defendants had taken a plea that they were owner of the said property and that they had admitted the possession of the plaintiffs in respect of the suit property. Accordingly, I find that the possession of the suit property with the plaintiffs had been admitted by the defendants specifically in the pleadings in 1959.

14. In addition to them the plaintiffs in their suit has also pleaded that they are in possession of the suit property since 1910. This factum of possession since 1910 has been pleaded by the plaintiffs in para 1 & 4. In response to these facts the defendants had disputed the possession of the plaintiffs since 1910, but has admitted that they had occupied the possession of the said property in the year 1947-48, when the plaintiff No.1 and Sh. Hukam Singh constructed the structure. Accordingly, in view of this pleading of the defendants, I find that the possession of the plaintiffs in respect of the suit property has been admitted since 1947-48 and that the plaintiff No.1 and Sh. Hukum Singh had raised the structure on such property somewhere in that year. Accordingly, by the pleadings of the defendants it is admitted fact that the plaintiffs are in possession of the suit property since 1947-48, if not from 1910, as pleaded by the plaintiffs. On evidence, the defendants had also deposed such facts and they had deposed that in a suit of 1951, the plaintiffs were not the party to that suit in which the partition of property had allegedly taken placed by which the defendants have allegedly acquired the ownership of the property. On evidence also the possession of the plaintiffs have been undisputably proved as admitted by the defendants in their testimony themselves. Therefore, I find that the plaintiffs have proved their possession since 1947-48, in respect of the suit property.

15. The defendants had challenged the possession of the plaintiffs by filing the suit for recovery of the possession somewhere in 1992 and that suit had been dismissed and the copy of the same has been proved on record by filing the certified

copy and proving the same as Ex.PWA/B alongwith the pleadings thereof. Once the plaintiffs are admittedly in possession w.e.f. 1947-48 and at no point of time, the defendants had taken over the possession of the said property for any period, I find that the plaintiffs are continuously is occupation and possession of the said property till the filing of the suit. The suit has been filed on 25.5.76 and more than 12 years have passed before filing the suit with a continuous possession against the defendants and the defendants had also challenged their possession during the course of pendency of the suit filed by the plaintiffs for injunction as well as by filing the suit for possession but the same remained intact and accordingly, in those circumstances, the plaintiffs had also proved the possession of the suit property in their hands adverse to the defendants, since the defendants had also claimed their ownership in respect of the suit property somewhere in 1959, when the plaintiffs had filed a suit for injunction and therefore, after 1959, when the defendants had come forward in the Court claiming to be the owner of the suit property and continuously more than 12 years had passed till filing of the suit, I find that the plaintiffs for more than 12 years. In view of my findings on the basis of admission made by the defendants in the WS as well as in evidence the contentions raised by the ld. counsel for the defendants do not appear to have any merit or substance to oust the claim of the plaintiffs for such declaration and accordingly, the law cited by the ld. counsels for the defendants in cases Ngasepam Ibotombi Singh Vs. Wahengbam Ibohal Singh AIR 1960 Manipur 16. Manmohan Services Station Vs. Mohd. Haroon Japanwala 54 (1994) DLT 552, Wg.Car.(Recd.) R.N.Dawar Vs. Sh. Ganga Saran Dhama AIR 1993 Delhi 19, Smt. Gauran Devi Vs. Durga Dase AIR 1996 H.P. 112 and Jamarathbee Vs. Pralhad Dattatraya AIR 1978 BOM 229, do not appear to be helpful to the case of the defendants, since the facts of the present case are substantially different from the facts of the cases relied by the ld. counsel for the defendants. Therefore, the contentions raised by the ld. counsel for the defendants are rejected. So, this issue stands decided in favour of the plaintiffs and against the defendants. (underlining added)

5. A reading of the aforesaid paragraphs show that though the

respondents/plaintiffs had claimed to be the owners in possession since

1910, it was proved that at least from 1959 the same was in the

knowledge of the appellants/defendants, inasmuch as in 1959 the

predecessor-in-interest of the plaintiffs i.e., their father Sh. Hukam

Singh had filed a suit for injunction against these very

appellants/defendants and in which, it was claimed that Sh. Hukam

Singh was the owner in possession of the suit property. Plaint in the civil

suit no. 224/1959 was exhibited before the trial court as Ex. P/W. This

suit was contested by the present appellants/defendants and was

decreed in favour of the predecessor-in-interest of the

respondents/plaintiffs thereby granting a decree of injunction in favour

of Sh. Hukam Singh and restraining the appellants from in any manner

dispossessing them without due process of law. An appeal filed against

this judgment of the trial court Ex.P/W dated 1.10.1960 was dismissed

by the Appellate Court vide its judgment exhibited in the trial court as

Ex.DW1/2. There is, therefore, no manner of doubt that the

respondents/plaintiffs became owners by law of prescription inasmuch

as, the subject suit was filed in 1974 and the period of limitation of 12

years from filing of the plaint in 1959 had expired in the year 1971. In

fact, the appellants/defendants only filed a suit for possession against

the respondents/plaintiffs in the year 1992 and which suit was also

dismissed. I also take note of subsequent events as per Order 7 Rule 7

CPC and the factual position today is that till the year 2011, no suit for

possession has been filed against the respondents/plaintiffs with respect

to the suit property.

6. I, therefore, agree with the conclusions and findings of the court

below that the respondents/plaintiffs were entitled to be declared

owners by virtue of law of prescription. The reasoning of the trial court

contained in paras 13 to 15 is categorical and correct, and I agree with

the same.

7. In view of the above, I do not find any merit in the appeal, which

is accordingly dismissed leaving parties to bear their own costs.

SEPTEMBER 16, 2011                              VALMIKI J. MEHTA, J.
ib