Sh.Khem Chand & Anr. vs Sh. Ram Mehar
2012 Latest Caselaw 825 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No.103/1996

%                                                    7th February, 2012

SH.KHEM CHAND & ANR.                                      ...... Appellants
                 Through:                Mr. Siddharth Yadav, Adv.



                            VERSUS

SH. RAM MEHAR                                               ...... 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. The challenge by means of this Regular First Appeal filed

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

impugned judgment of the Trial Court dated 30.10.1995 decreeing the suit

of the respondent/plaintiff for possession with respect to the suit property

being House No.358, Village- Hastsal, Delhi.

2. The facts of the case are that the respondent/plaintiff was the

owner of the suit property and the appellants/defendants being his relations,

were provided for a house behind the suit property for residence being

House No. 353 belonging to some other person. Electricity was however

provided by the respondent/plaintiff from connection in the suit property.

The respondent/plaintiff was not staying in the suit property because he

was in Government service and was transferred to Salhawas, Haryana and

therefore had built a house in village- Jakhala where he was staying. Since

the meter reader had to come for taking of the readings for the electricity

consumption, which was consumed by the appellants/defendants from the

meter installed in the suit property, one key of the suit property was

provided by the respondent/plaintiff to the appellants/defendants. The

respondent/plaintiff however found in February, 1991 that his lock was

removed and the appellants/defendants had put their own lock. The subject

suit for possession therefore came to be filed. The appellants/defendants in

the Trial Court laid down two basic defences.

First was that the property was purchased by the

appellants/defendants from the respondent/plaintiff for a sum of Rs.6,500/-.

The second defence was that of the plea of adverse possession.

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

following issues:

"i. Whether the suit of the plaintiff is barred by time? OPD.

ii. Whether the suit is not valued properly for the purposes of Court fees? OPD.

iii. Whether the plaintiff has sold and the defendant had purchased the property in suit as alleged in preliminary objection No.2 of WS? OPD.

iv. Whether the plaintiff is entitled for the relief claimed? OPP.

v. Relief."

4. The Trial Court with respect to the issues no. 3 and 4 has

given a finding that the appellants/defendants have failed to prove their

case of having purchased the property inasmuch as no proof was filed on

record of the alleged consideration of Rs.6,500/- being paid. It was also

pleaded that if the appellants/defendants had really purchased the property,

they would have at least an electricity bill in their name, however, even that

was not so. To the aforesaid, I may add that rights in an immovable

property can only be transferred by means of a registered instrument under

Section 17(1)(b) of the Registration Act, 1908 and admittedly there is no

registered instrument in terms of Section 17(1)(b) of the Registration Act,

1908 for the appellants/defendant to claim ownership of the suit property

thereupon. Leave alone a registered instrument there is not even a written

document. Even with respect to the issue of adverse possession, the

appellants/defendants miserably failed to prove the same inasmuch as

except long possession, the appellants/defendants had nothing in their

favour as to either house tax being paid by them or electricity, water

connection being in their name and so on. It is settled law that long

possession is not an adverse possession. A plea of adverse possession is

looked upon strictly by the Court inasmuch as the adverse possession

commences in wrong and is continued against a right. Further, the

appellants/defendants have failed to lead evidence that they had affirmed

their adverse possession in the suit property by giving the necessary

intimation to the owner being the respondent/plaintiff. The Supreme Court

in the recent judgment of Chatti Konati Rao vs. Palle Venkata Subba Rao,

2010 (14) SCC 316 has held that the plea of adverse possession must be

open and hostile enough to be capable of being known by the parties

interested in property. The party interested in the property obviously is the

respondent/plaintiff and therefore, once the appellants/defendants have

miserably failed to prove any act or fact to the knowledge of the

respondent/plaintiff of the claim of the appellants/defendants of adverse

possession, the claim of adverse possession had to necessarily fail. In the

judgment of Chatti Konati Rao (supra), the Supreme Court in Paras 12 to

16 has held 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 Bhattacharyya. 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 T. Anjanappa v. Somalingappa, 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 Karnataka Board of Wakf v. Govt. of India3. 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. SCC para 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, Parsinni v. Sukh and D.N. Venkatarayappa v. State of Karnataka.) 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 v. Raj Kumari Sharma.)"

14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is 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 twelve 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 twelve years thereafter.

15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the 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 that 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. The plea of adverse possession is not a pure question of law but a blended one of fact and law.

16. Bearing in mind the principles aforesaid when we proceed to consider the facts of this case, we find that the appellants have miserably failed to prove that they have perfected their title by adverse possession. It is worth mentioning here that the initial plea of the appellants was that they had purchased the property from the original

owner, alternatively by virtue of agreement to sale they came in possession of the property. Both these pleas have not been substantiated. Neither the purported sale deed nor the agreement to sale have been placed on record. (underlining added).

5. In view of the above, the Trial Court has rightly held that the

suit for possession of the respondent/plaintiff was bound to be decreed as

the appellants/defendants were not the owners and had also failed to prove

the plea of adverse possession. The observations made by the Supreme

Court in the recent judgment of Chatti Konati Rao (supra) squarely apply

to the facts of the present case.

6. In view of the above, there is no merit in the appeal, which is

accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J FEBRUARY 07, 2012 ak