Kishan Chand Wadhwa vs Durga And Ors.
2012 Latest Caselaw 4673 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No. 1644/2003

%                                                         7th August, 2012

KISHAN CHAND WADHWA                                       .....Plaintiff
                Through:                 Mr. B.B.Gupta and Ms. Anshul Mittal,
                                         Advocates.


                            VERSUS

DURGA AND ORS.                                            ...... Defendants
                            Through:     Ms. Neelam proxy counsel for Mr.
                                         S.K.Verma, Advocate for D-1,10 and 17.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)



1.       The subject suit for possession and mesne profits has been filed by the

plaintiff who is the owner of Industrial Plot No. E-6 in Block B-1 Extension

situated in Mohan Cooperative Industrial Estate, Mathura Road, New Delhi. The

plaintiff became owner of this plot by means of a perpetual sub-lease dated

27.10.1988 executed by the Delhi Administration. The present perpetual lessor is

the Delhi Development Authority (DDA). After getting the lease rights in the plot

when the plaintiff went to the spot it transpired that various unauthorized
CS(OS) 1644/2003                                                          Page 1 of 5
 occupants were in possession of different portions of the plot.           The plaintiff

thereafter entered into correspondence with Mohan Cooperative Industrial Estate,

the DDA, as also the police authorities, for removal of the encroachers, however,

since no steps were taken by the requisite authorities, plaintiff filed the subject suit

for possession and mesne profits.


2.     In this suit, the written statement was filed only by defendant nos. 10 and 17.

Originally, in this suit there were 29 defendants and which list was subsequently

expanded by allowing an application under Order 1 Rule 8 of Code of Civil

Procedure, 1908 (CPC). An amended memo of parties was then filed expanding

the array to 97 defendants. The difficulty of the plaintiff is that there are jhuggis at

the spot, and which keep on changing hands, and therefore it is not known as to

which different portions of the property are being transferred and when and to

whom, hence the Order 1 Rule 8 CPC application. In my opinion, however it will

not make any difference because under Order 22 Rule 10 CPC, read with Section

52 of the Transfer of Property Act, 1882, the decree passed in the suit will be

binding against the original defendants as also all persons who claim under the

original defendants once the rights arise subsequent to the filing of the suit. The

Supreme Court in the case of Dhurandhar Prasad Singh Vs. Jai Prakash

University & ors. 2001 (6) SCC 534 has held that it is not mandatory for the

CS(OS) 1644/2003                                                              Page 2 of 5
 persons to whom title has devolved during the pendency of the suit to be

substituted in place of original parties and the suit can be continued by or against

the original parties to the suit.

3.     Issues in this case were framed on 17.3.2006, which read as under:-

              "1.    Whether the plaintiff is entitled for a decree of recovery of
                     possession of the property against the defendants except from
                     the defendant Mohan Cooperative Industrial Estate Ltd.?OPP
              2.     Whether the plaintiff is entitled for recovery of mesne profits
                     from the defendants except from the defendant Mohan
                     Cooperative Industrial Estate Ltd.?OPP
              3.     Whether the suit has been properly valued for the purpose of
                     Court fees and jurisdiction and appropriate Court fees has been
                     paid?OPP
              4.     Whether all the defendants except the defendant Mohan
                     Cooperative Industrial Estate Ltd have become owners by
                     adverse possession?OPD
              5.     Relief."
4.     The plaintiff led evidence and the plaintiff's witnesses were cross-examined.

The defendant Nos.10 and 17 however failed to lead any evidence and therefore,

right of these defendants to lead evidence was closed vide orders dated 1.8.2011

and 21.9.2011.


5.     In view of the fact that the onus to prove adverse possession was on the

defendants and no evidence is led on behalf of the defendants, and thus issue no.4

is decided against the defendants.

CS(OS) 1644/2003                                                             Page 3 of 5
 6.     I will now take up issue nos. 1 and 2 of the entitlement of the plaintiff to

possession and the claim of mesne profits. The plaintiff has proved and exhibited

in this Court the perpetual sub-lease executed in his favour as Ex.P-1. Various

other letters sent to the different authorities seeking removal of encroachments

have been proved and exhibited as Ex.P-2 to Ex.P-12.          The site plan of the

property has been proved and exhibited as Ex.P-13. Plaintiff has also led evidence

and deposed that the market rent of similar plot of land in this area would be `

25,000/- approximately, and to this aspect there is no cross examination on behalf

of the two defendants i.e. defendant nos. 10 and 17 who were appearing in the suit.

In any case, this Court can take judicial notice that for a plot of about 1400 sq.yds

the rental would be at least in the regime of ` 25,000/- in around the year 2003. As

per the order dated 8.9.2005, the plaintiff has restricted his claim of mesne profits

w.e.f. 12.5.2005, when the application for amendment of the plaint was allowed to

add the relief of mesne profits.


7.     In view of the above, and in my opinion, the plaintiff has proved his

ownership of the suit plot. The defendants have failed to prove their ownership by

adverse possession. The plaintiff is also entitled to relief of mesne profits at `

25,000/- per month.




CS(OS) 1644/2003                                                            Page 4 of 5
 8.     In view of the above discussion, suit of the plaintiff for possession and

mesne profits is decreed against the defendants. The plaintiff is held entitled to

possession of the Industrial Plot No. E-6 in Block B-1 Extension situated in Mohan

Cooperative Industrial Estate, Mathura Road, New Delhi against the defendants; or

whoever is found to be in possession through the defendants; as per the site plan

Ex.P-13. Plaintiff is also entitled to mesne profits of ` 25,000/- per month jointly

and severally against the 97 defendants in the suit w.e.f. 12.5.2005 till passing of

this decree and thereafter till the defendants handover peaceful vacant possession

to the plaintiff. Plaintiff is also entitled to costs as per the rules applicable to this

Court. Decree sheet be prepared. The suit is accordingly decreed and disposed of.




AUGUST 07, 2012                                       VALMIKI J. MEHTA, J.

ib