Delhi High Court

Smt. Kanak Lata Jain & Ors. vs Sh. Sudhir Kumar Jain & Ors. on 24 February, 2012

Author: Valmiki J. Mehta

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.232/2011

%                                                   24th February, 2012

SMT. KANAK LATA JAIN & ORS.     ..... Appellants
                  Through: Mr. M. Hussain, Advocate.

                      versus

SH. SUDHIR KUMAR JAIN & ORS.             ..... Respondents

Through: Mr. Sanjiv Kakra, Advocate with Mr. Atul Kumar, Advocate and Mr. Irfan Ahmad, Advocate for respondent No.2.

Mr. Ravinder Singh, Advocate with Mr. Maheem Pardhan, Advocate for respondent Nos.3, 6, 7 and 8.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal (RFA) filed

under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the trial Court dated 31.1.2011 which decreed the suit of the

respondent Nos.1 and 2/plaintiffs for partition of the suit property belonging to

the mother of the parties, Smt. Rajmati Jain. The trial Court passed a

preliminary decree declaring all the legal heirs of Smt. Rajmati Jain including

the plaintiffs to be 1/8th co-owners in the suit property. The

plaintiffs/respondent Nos.1 and 2 were also held entitled to rendition of

account of the rental income received by the defendant Nos.1 to 3/appellants.

2. The facts of the case are that admittedly Smt. Rajmati Jain was

the owner of the property bearing plot No.67, Mauza Shakurpur, Delhi bearing

Municipal No.WZ-16 & 17, Golden Park, Rampura, Delhi admeasuring 224

sq. yds. Smt. Rajmati Jain expired on 6.4.1987 leaving behind eight legal

heirs. The husband of Smt. Rajmati Jain i.e. Sh. Jagmohinder Lal Jain expired

on 27.6.1987. In the plaint, it was pleaded that Smt. Rajmati Jain did not

execute any Will during her lifetime, and since she died intestate, all her eight

legal heirs being the plaintiffs and the defendant Nos.2 and 4 to 8 became 1/8th

co-owners of the suit property. It was pleaded in the plaint that the plaintiffs

with the defendant Nos.2 and 4 had been carrying on a partnership business in

the name and style of M/s. J.K. Medical Products since 1977 at 94-Darya

Ganj, New Delhi and the suit property was used as a godown upto the year

1999. It was then pleaded in the plaint that when in August 2003 the

plaintiffs/respondent Nos.1 and 2 approached the defendant No.2/appellant

No.2 for partition, the matter was delayed on one pretext or the other. It was

pleaded that it transpired that the defendant No.1/appellant No.1 claiming

herself to be the owner of the suit property sold the same to defendant Nos.2

and 3 by a sale deed. Defendant No.2 is the husband of defendant No.1 and

defendant No.3 is the real sister of defendant No.1. The plaintiffs were

shocked and surprised to receive the certified copy of the sale deed on

25.9.2003 in which it was alleged that the defendant No.1 had become owner

of the suit property by virtue of the Will dated 10.1.1987 of the mother-late

Smt. Rajmati Jain. It was pleaded that there was no valid Will of Smt. Rajmati

Jain dated 10.1.1987 and consequently it was pleaded that the suit property

was liable to be partitioned.

3. The suit was contested by the appellants/defendant Nos.1 to 3

while relying upon the Will dated 10.1.1987 allegedly executed by the mother

Smt. Rajmati Jain. It was pleaded that by virtue of the Will dated 10.1.1987,

Smt. Rajmati Jain bequeathed the suit property in favour of her daughter-in-

law i.e. defendant No.1 and thereby she became sole owner of the suit

property. It was pleaded that the defendant No.1 finally sold the property on

14.5.1998 to her husband-defendant No.2 and her sister, defendant No.3.

4. After completion of pleadings, the trial Court framed the

following issues:-

"1. Whether the will dated 10.01.1987 is a validly executed and

legally enforceable document? OPD

2. Whether the suit has been properly valued for the purpose of court fees and pecuniary jurisdiction? OPP

3. Whether no cause of action has arisen against the defendants and in favour of the plaintiff for filing the present suit? OPD

4. Whether the suit is barred by limitation? OPD

5. Whether the plaintiff is entitled to the decree for partition and separate possession of suit property? OPP

6. Whether the plaintiff is entitled to the decree for rendition of accounts against defendants in respect of rent of suit property? OPP

7. Relief."

5. The main issue was really as to the ownership of the defendant

No.1 by virtue of the alleged Will dated 10.1.1987 of the mother Smt. Rajmati

Jain. In this regard, the trial Court in the impugned judgment in para 28 has

noted that no Will of late Smt. Rajmati Jain has been placed on record, much

less the original Will. Further, no attesting witness of the Will was summoned

to prove the execution of the Will. It was held that since the alleged Will of

Smt. Rajmati Jain was not proved consequently all the legal heirs of Smt.

Rajmati Jain i.e. the plaintiffs, and defendant Nos.2and 4 to 8 were equal co-

owners to the extent of 1/8th share each in the suit property.

I completely agree with the findings and conclusions of the trial

Court inasmuch as surely if no Will is filed, much less the original Will, and

no attesting witness summoned, surely the alleged Will dated 10.1.1987 was

not proved.

6. So far as the issue of limitation is concerned, the trial Court has

noted that the suit cannot be said to be barred by limitation as the suit property

was used for storing as godown of the partnership business between the parties

till the year 1999 and the demand for partition was made in the year 2003 and

the suit was thereafter filed on 13.4.2005 i.e. within two years. The trial

Court has rightly noted that the period of limitation for filing of the suit for

partition is 12 years. Of course, 12 years will begin when the claim adverse to

the plaintiffs/co-owners is notified to the world at large including the plaintiffs

who are the concerned persons. There is no evidence which has been led on

record that the alleged Will of the mother dated 10.1.1987 was ever brought to

the notice of the respondent Nos.1 and 2/plaintiffs. The issue of limitation has

been dealt with by the trial Court in para 34 of its judgment, with which I

agree and which reads as under:-

"34. Issue no.4 Whether the suit is barred by limitations? OPD The onus to prove this issue is upon the defendants. In the written statement, defendants have simply mentioned that suit is barred by time. As per the plaintiff, the suit property was inherited by them as well as other legal heir after the death of their mother, Smt. Rajmati Jain and the plaintiffs and defendant no.2 were carrying the joint business by the name of M/s. J.K. Medical Products and the suit property was being used as a godown for storing the products till the year 1999. As per the plaintiff in the year 2003, they asked the defendant no.2 for

partition which he initially avoided and subsequently stated that he is the owner of the suit property. Therefore on inquiry they came to know that defendant no.1 executed a sale deed in favour of defendant no.2 & 3 on the basis of the alleged will, thus right of the plaintiff and other legal heir was disputed by the defendant in the year 2003. The plaintiff reiterated the said fact in his examination in chief. During cross-examination he has admitted that he made enquiries with the office of Sub-Registrar regarding the will of Smt. Rajmati Jain dated 10.01.1987. He volunteered that he made the enquiry somewhere in 2003. He further stated that he came to know in the year 2003 that Smt. Kanaklata Jain was claiming her right on the suit property by virtue of will dated 10.01.87 executed by Smt. Rajmati Jain. In the entire cross-examination, PW1 has not been suggested that the suit is barred by limitation. As per the plaintiff they came to know that defendant no.1,2 & 3 were claiming absolute right in the suit property to the exclusion of legal heir of late Smt. Rajmati Jain in the year 2003. The present suit has been filed on 13.04.2005 i.e. within 2 years. The limitation for filing the suit for partition is 2 years from the date of denial of right. The present suit has been filed within the period of limitation. Defendants have thus failed to discharge the onus of issue no.4, same is accordingly decided against the defendant."

7. There is no issue which is framed with respect to the plea of

ownership by adverse possession of the appellants/defendant Nos.1 to 3 and

even if such issue was framed it was necessary that this issue should have

been proved by leading clinching evidence showing the claim of ownership of

the defendant No.1 for a consistent period of 12 years before filing of the suit

i.e. nec vi, nec clam, nec precario i.e. open, peaceful and continuous. Mere

long possession is not adverse possession. The plea of adverse possession is

not looked upon with favour especially when the parties are closely related to

each other inasmuch as possession of one co-owner is treated to be possession

for and on behalf of the other co-owner unless ouster is categorically proved.

Nothing has been pointed out to me on behalf of the appellants/defendant

Nos.1 to 3 that ouster was specifically ever made known to the

plaintiffs/respondent Nos.1 and 2. The Supreme Court in its recent judgment

reported as Chatti Konati Rao and Ors. Vs. Palle Venkata Subba Rao (2010)

14 SCC 316 has reiterated the law with respect to adverse possession in paras

12 to 15 of the said judgment, and which paras read as under:-

"12. We have bestowed our thoughtful consideration to the submission advanced and we do not find any substance in the submission of Mr. Bhattacharya. What is adverse possession, on whom the burden of proof lie, the approach of the court towards such plea etc. have been the subject matter of decision in a large number of cases. In the case of T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows:

"20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order

to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."

13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf v. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows:

11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and

D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC

567) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma : (1996) 8 SCC 128.

14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The Plaintiff is bound to prove his title as also possession within 12 years and once the Plaintiff proves his title, the burden shifts on the Defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the Defendant should be adverse to the Plaintiff and the Defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. The person who

claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. Plea of adverse possession is not a pure question of law but a blended one of fact and law." (underlining added) A reference to para 14 of this judgment shows that if the

possession before the plea of adverse possession is accepted, the same must be

open and hostile enough so that it is known by the parties interested in the

property. The Supreme Court has reiterated this on the basis of similar

observations made by the Supreme Court in its judgment reported as T.

Anjanappa & Ors. Vs. Somalingappa & Anr. (2006) 7 SCC 570 and para 20

of which judgment has been referred to in para 12 of the judgment in the case

of Chatti Konati Rao (supra).

8. A civil case is decided on balance of probabilities. Once the

appellants failed to prove that there was any Will of the mother-Smt. Rajmati

Jain and also failed to prove the plea of adverse possession, which in any case

is looked at with dis-favour by the Courts, the trial Court was justified in

arriving at a finding decreeing the suit for partition. An appellate Court does

not interfere with the findings and conclusions of the trial Court unless such

findings are wholly perverse or illegal. I do not find any perversity or

illegality in the impugned judgment which calls for interference by the Court

in the appeal.