Mst Tana vs Badamo
2013 Latest Caselaw 3744 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       RFA No. 384/1980

                                   Judgment reserved on 2nd May, 2013

                                   Judgment delivered on 26th August, 2013

        MST TANA                                          ..... Appellant
                           Through:     Mr. Sanjeev Sindhwani, Sr. Adv. with
                                        Mr. Rakesh Saini, Adv.
                    Versus

        BADAMO                                           ..... Respondent

                           Through:     None.

CORAM:
Hon'ble Mr. Justice A. K. Pathak

1. Appellant-plaintiff no. 1 along with respondent nos. 2 and 4 (plaintiff

nos. 2 and 3 respectively) filed a suit for partition and perpetual injunction

against the respondent nos. 1 and 3 (defendant nos. 1 and 2) in respect of

property bearing no. 3477, Gali No. 4/5, Rehgar Pura, Karol Bagh, New

Delhi (for short, hereinafter referred to as the "suit property"). By the

judgment and decree dated 8th September, 1980 trial court dismissed the suit,

hence, this appeal has been preferred by plaintiff no.1 wherein plaintiff nos.

2 and 3 have been impleaded as respondent nos. 2 and 4 as they chose not to

challenge the impugned judgment and decree.

2. Plaintiffs alleged in the plaint that plaintiff no. 1 was daughter and

plaintiff nos. 2, 3 and defendant no. 2 were grand children; whereas

defendant no. 1 was daughter-in-law of Shri Maman, who died in the year

1948. The pedigree table of Late Shri Maman is as under :-

Shri Maman (His wife Smt. Jamna predeceased him)

1. Smt. Tana 2. Smt. Dharam Kaur Sh. Prabhu (son) died (daughter) Plaintiff (daughter) in the life time of no. 1 Maman

no. 11. Smt. Tana (daughter) Plaintiff no.

1. Sh. Deep Chand       2. Smt. Shanti           3. Sh. Umrao Singh
(son) Plaintiff No.2    (daughter)               (Son) Defendant





                                      1. Smt. Badamo              Smt. Sarupi, other
                                      (widow)                     widow (now dead
                                      Defendant No. 1             after remarriage)

3. Late Shri Maman got the suit property built in the year 1924 after

acquiring the land underneath it on lease during the year 1919 from Delhi

Improvement Trust. Late Shri Maman gifted the suit property to his

daughters, that is, plaintiff no. 1 and Smt. Dharam Kaur @ Modi (mother of

plaintiff nos. 2 and 3 and defendant no.2) on 19th August, 1945 through a

registered Gift Deed dated 21st August, 1945. The daughters along with

widows of pre-deceased son continued to reside with Late Shri Maman in

the suit property till his death. They were still in possession of the suit

property. Smt. Sarupi, second widow of deceased Prabhu, son of Late Shri

Maman, was issue less. She remarried after the death of Prabhu prior to

coming into force the Hindu Succession Act, 1956, hence, she was not

entitled to any share in the suit property being the widow of pre-deceased

son. Plaintiff no. 1 and Late Smt. Dharam Kaur, mother of plaintiff nos. 2, 3

and defendant no. 2 filed a suit for possession in respect of the suit property

on 19th December, 1946 against the defendant no.1 which was decreed by

Sub Judge, Ist Class on 23rd March, 1948. Defendant no. 1 and Smt. Sarupi

went in appeal before Punjab High Court which was partly allowed on 10th

October, 1954 whereby plaintiffs were granted a decree for possession of

half of the suit property. Accordingly, plaintiff nos. 2, 3 and defendant no. 2

were joint owners of the suit property. The remaining half portion of the

suit property fell into the share of defendant no.1 and Smt. Sarupi. It was

alleged that defendant no. 2 was not interested in institution of the partition

suit, thus, was arrayed as defendant no.2. Defendant no. 1 had been openly

claiming herself to be the exclusive owner of suit property and was

threatening to alienate and transfer the suit property, hence, the suit for

partition and perpetual injunction.

4. Defendant no. 1 filed written statement wherein she took certain

preliminary objections to the effect that suit was barred by limitation; suit

was undervalued, inasmuch as, insufficient court fee was paid; suit was not

maintainable; suit was barred under Order 2 Rule 2 of the Code of Civil

Procedure, 1908 (for short, hereinafter referred to as "The Code"). On

merits, it was denied that Late Shri Maman acquired and got built the suit

property after taking the lease of land underneath the built up portion from

Delhi Improvement Trust in the year 1919. It was alleged that Late Shri

Maman was very poor and had no means to acquire the suit property. It was

Prabhu, son of Late Shri Maman and husband of defendant no. 1 who had

purchased the land underneath the disputed property from Shri Lachhman

son of Shri Sadhu and raised construction from his own earnings. Shri

Lachhman had taken the lease from the Deputy Commissioner of Delhi.

Prabhu took the land on lease for a period of 20 years in the name of his

father-Late Shri Maman out of respect for his father. It was alleged that suit

property was self acquired property of Late Shri Prabhu who raised the

construction from his own funds and earnings. Late Shri Maman had no

right, title or interest in the suit property. It was denied that Late Shri

Maman had gifted the suit property to his daughters, that is, plaintiff no. 1

and Smt. Dharam Kaur. It was alleged that even if it is assumed that the gift

deed was executed the same was void, invalid and illegal since Late Shri

Maman had no right to execute the alleged gift deed. It was denied that

daughters of Late Shri Maman had been living with him in the suit property.

It was alleged that the cause of action, if any, for filing suit for partition

arose during the year 1946, inasmuch as, defendants disputed the claim of

plaintiffs during Suit No. 285/1986 which was decreed way back on 23rd

March, 1948. Appeal, preferred against the said judgment, was decided on

15th October, 1954 but no execution was filed against the said decree of

High Court. Execution became time barred on 15th October, 1966, thus,

plaintiffs had abandoned their rights. Suit was hopelessly barred by time for

the above reason. Defendant no. 1 has been in actual physical possession of

the suit property right from the death of her husband Late Shri Prabhu. She

never allowed the plaintiffs to enter in the suit property or obtain possession

over any part thereof. The possession of defendant no. 1 over the suit

property was exclusive open, hostile and continuous, thus, she had become

owner by adverse possession. Defendant no. 1 had made additions and

alterations in the suit property, inasmuch as, got her name mutated in the

municipal records and was paying the house tax, water and electricity bills

etc. It is she who had been letting out the different portions of the suit

property to tenants and recovering rents. She had also acquired fresh lease

hold rights over the plot underneath the disputed property in her own name.

It was prayed that suit be dismissed.

5. Following issues were framed by the Trial Court :-

i) Whether the plaintiffs and defendant no. 2 are joint owners of the suit property as alleged in para 8 of the plaint? OPP

ii) Whether the suit is within limitation? OPP.

iii) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPP.

      iv)      Whether the suit is maintainable? OPP
      v)       Whether the defendant no. 1 is or has become the sole

and exclusive owner of the suit property as alleged in her written statement? OPD

vi) Whether the suit is barred under Order 2 Rule 2 CPC?

vii) What is the effect of non-execution of the decree passed in suit no. 285 of 1946, as modified by the High Court? OPP

viii) Relief.

6. Upon scrutiny of entire evidence adduced by the parties trial court has

held that suit was not maintainable as the decree passed by the Punjab High

Court in the year 1954 had become incapable of execution since no

execution petition was filed by the appellant. Punjab High Court held that

the site was acquired and taken on lease with the money which was provided

wholly or partly by Late Shri Maman on which construction was raised by

Late Shri Prabhu, thus, plaintiffs and defendants were joint owners in the

suit property. Issue No. 1 was decided accordingly. During the course of

hearing, Issue Nos. 3 and 6 were not pressed by defendant no.1. As regards

Issue Nos. 4 and 7, Trial Court held that suit was barred under the provisions

of Section 47 of the Code which envisaged that all questions arising between

the parties to the suit in which the decree was passed or their representatives

relating to the execution, discharge or satisfaction of the decree, shall be

determined by the court executing the decree and not by a separate suit.

Trial court was of the view that suit was filed on the basis of a decree passed

by the Punjab High Court on 15th October, 1954 whereby it was held that

appellants were entitled to possession of half share in the suit property. If

the said decree was not taken into consideration the plaintiffs were left with

no interest in the suit property. Thus, the present suit was nothing but a

subtle device to execute the said decree. Reliance was placed on

Ramanand and others versus Jai Raj & Others AIR 1921 All 369

wherein Allahabad High Court held thus:-

"we have given our best consideration to the question before us and we are of opinion that, both on authority and on a correct interpretation of Section 47 of the Code, the present suit was not maintainable. Stripped of all unnecessary details, the relief claimed by the plaintiffs, in substance, amounts to asking for the fruits of a decree which they are unable to execute owing to lapse of time. The suit, in effect, does raise a question "relating to the execution, discharge or satisfaction" of the former decree and cannot be determined by a separate suit. The plaintiffs' claim in reality is that they obtained a decree for possession of this property, the defendants have not given them possession in spite of the said decree, and therefore the Court should compel the defendants to carry out their obligation under that decree. In our opinion such a suit falls clearly within the purview of Section 47 of the Code, and if it did not, we fail to see what other form of suit would".

7. Reliance was also placed on Mal Singh Bika Singh and Others

versus Mohinder Singh Mehar Singh AIR 1970 P&H 509 wherein, it was

held as under :-

"If the nature of a decree requires that it should be executed, a decree-holder cannot, after allowing the period of limitation to lapse without issuing process of execution, seek by a fresh suit on the decree to obtain that which he should have sought for by execution".

8. Trial court observed that decree was passed for possession of half

share in the disputed property, thus, plaintiffs could have very well applied

for the execution of the decree and in that eventuality the bailiff could have

put them in possession over the disputed property under the orders of the

court, executing the said decree.

9. As regards Issue No. 5, it was held that defendant no. 1 had become

sole owner of the suit property by way of adverse possession. One joint

owner can perfect his title by adverse possession against the other joint

owner, however, in that eventuality there must be exclusive possession of

one joint owner over the disputed property for over twelve years. The said

possession must be open, hostile as a matter of right against the other joint

owner. On the basis of evidence on record, it was held that defendant had

succeeded in proving all the ingredients for claiming ownership by way of

adverse possession. Trial court placed reliance on P. Lakshmi Reddy

versus L. Lakshmi Reddly AIR 1957 SC 314 to conclude that one joint

owner can claim adverse possession over the disputed property. Reliance

was also placed on Haraballav Sarma and others versus Mohodar

Sharma AIR 1975 Guwahati 76 and A.R.R.M.V. Arunachallam Chetty

and others versus Venkatachalapathi Guruswamigal AIR 1919 Privy

Council 62.

10. In Haraballav Sarma (supra), it was held as under:-

"The submission of learned counsel cannot be accepted as a correct proposition of law. In my opinion when a person openly and continuously possesses land under a claim of right adverse to the title of the true owner for the statutory period, his possession becomes adverse to the rightful owner. His belief that the land did not belong to the true owner is immaterial. His belief that it belonged to himself is necessary as that will be a claim of right adverse to the title of the true owner."

11. In Arunachallam Chetty (supra) it was held as under :-

"...This is a very ordinary case of possession nec vi nec clam nec precario. The person now claiming to be owner has stood by while others continued to possess not by any derivative title but in practical contravention of his alleged rights. The law does not require that the claimant to ownership must in such circumstances be shown to have protested that his rights were being violated, and that the possession went on adversely to his protests. In short, their Lordships cannot agree with the legal view upon this subject of possession adopted by the Court below."

12. In P. Lakshmi Reddy (supra), Supreme Court held as under:-

"Now, the ordinary classical requirement of the adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan, 61 Ind

App 78 at p 82: (AIR 1934 PC 23 at p. 25) (A). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna, 27 Ind App 136 at p. 140 (PC) (B). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non- possession co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all co- heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy, 1912 AC 230 (C). It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."

13. Law regarding adverse possession is no more res integra. Long and

continuous possession by itself, it is trite, would not constitute adverse

possession. A person claiming adverse possession has to prove his

continuous and hostile possession against the true owner. For proving

adverse possession ouster of the co-owner has also to be there. In order to

show that possession of the co-owner is adverse to other it is necessary that

there should be ouster or something equivalent to it. Broadly speaking,

three elements are necessary for establishing the plea of ouster in the case of

co-owner. These are (i) declaration of hostile animus, (ii) long and

uninterrupted possession of the person pleading ouster and (iii) exercise of

right of exclusive ownership openly and to the knowledge of other co-

owner.

14. Coming back to the facts of the present case, defendant no. 1 had all

along been claiming that the suit property did not belong to late Shri

Maman. This plea was taken in the suit in the year 1946. It was alleged that

gift deed was invalid for the above reason. Gift deed was executed under

undue influence. Superstructure was raised by Late Shri Probhu from his

own funds. The said suit was decreed on 23rd March, 1948 by the Sub-Judge

Ist Class in favour of the plaintiff no.1 and Dharam Kaur. Defendant no. 1

Sarupi went in appeal before the Punjab High Court which was partly

allowed on 10th October, 1954. It was held that there was no iota of

evidence on record to justify the conclusion of Sub-Judge that either the plot

of land which was taken on lease in the year 1919 or the superstructure,

which was put up thereon in or about the year 1924, was acquired with the

aid of joint family property. It was further held that suit property was not a

joint family property. It was also held that though the lease was taken in the

name of Late Shri Mamam but this fact alone was not sufficient to prove

conclusively that he provided funds for the payment of lease money or that

his son provided the funds from his income. No clear evidence was available

on record in this regard. However, there was convincing evidence to justify

the conclusion that superstructure was built up by or at the expense of Late

Shri Prabhu. In the year 1924 when the house was constructed Late Shri

Maman was aged about 65 years. He had not inherited any property from

his father and he did not follow any vocation or engage in any work. When

he died at the age of 80, in the year 1946 he was deaf as well as blind and

had been so for about 15 years previously. Thus, he was incapable because

of his physical infirmities either of earning a livelihood for himself or of

contributing substantially towards the construction of the building. Late

Shri Prabhu was 40 years of age in the year 1924 and was mason and

electrician by profession. He was reasonably affluent. He purchased

various quantities of goods required for construction of the house. Thus, it

was held that although the site was probably taken on lease with his funds

by Late Shri Maman but the construction was raised at the expense of Late

Shri Prabhu. It was, thus, concluded that half the property in suit should be

deemed to be self acquired property of Maman and other half as that of

Prabhu. Thus, Maman had power to make a gift of his own share to his

daughters but had no power whatsoever to make a gift of the share of his son

which on the death of the son had devolved on his widows. Punjab High

Court granted a decree of possession to plaintiff no.1 and Dharam Kaur in

respect of half of the suit property.

15. It is not in dispute that the decree was not executed by the plaintiffs.

There is sufficient evidence on record to show that plaintiffs were never in

possession of the suit property which fact is also evident from the action of

filing of suit for possession which was decreed ultimately in their favour in

respect of half share in the suit property by the Punjab High Court on 15 th

October, 1954. Plaintiffs also failed to lead any cogent evidence to show

that after the decree they came in possession of any portion of the suit

property through the process of court or otherwise. On the other hand,

sufficient and conclusive evidence has been led by the defendant no. 1

before trial court to show that it is she who had been in continuous

possession of the suit property. Plaintiffs have all along been out of the suit

property. Right from the beginning defendant no. 1 had been asserting her

right in the suit property. She had been claiming ouster of the plaintiffs

from the suit property, inasmuch as, has proved the same by leading definite

evidence in this regard. The possession of defendant no.1 in the suit

property has all along remained hostile to the plaintiffs. Trial court has taken

a note of the fact regarding continuous possession of defendant no.1 in the

suit property which was not only supported by the ocular evidence but also

from documentary evidence including decree passed by the Punjab High

Court as well as other documents, that is, house tax receipts, electricity bills,

water bills etc. which were paid by the defendant no.1. There is not even an

iota of evidence regarding possession of the appellant. Thus, in my view,

trial court has rightly concluded that possession of defendant no.1 was open,

hostile and as a matter of right against other joint owners continuously for

more than 12 years, thus, she had acquired the ownership rights by way of

adverse possession. Obviously, this would be in respect of half portion of

the suit property since as per the decree of Punjab High Court, which has

remained unchallenged, defendant no.1 otherwise was having ownership

rights in respect of half portion of the suit property.

16. Learned senior counsel has vehemently contended that defendant no.1

has taken diametrically opposite pleas which are mutually destructive. On

one hand, she claimed herself to be the exclusive owner of suit property

having derived title from her late husband on the other, she has claimed that

she was absolute owner of the entire suit property as is evident from her

written statement wherein the judgment of Punjab High Court has also been

assailed as having been decreed only with regard to the possession and not

on the question of title, which plea has been negated by the trial court.

Having failed in said plea respondent sought to base her claim on adverse

possession. He has contended that the two claims are diametrically opposite

and are mutually destructive. The latter does not begin to commence till the

former is renounced. Reliance has been placed on N. Kirpal Singh versus

S.Harchar Singh 2011 (121) DRJ 66. I do not find any force in this

contention of learned senior counsel. The judgment relied upon by him is in

the context of different facts and is of no help to the appellant. In the

present case, right from the beginning defendant no.1 had been asserting that

Late Shri Maman was not the owner. Late Shri Prabhu had raised

construction. She had derived the title from her Late husband Prabhu. Late

Shri Maman had no right to gift the suit property. However, this plea was

not accepted by the Punjab High Court in appeal and it was held that Late

Shri Maman and Late Shri Prabhu were having joint rights in the suit

property. Maman could have passed on his share to his daughters by way of

gift in respect of his half share while other half share vests in the widows of

Late Shri Prabhu. Defendant no. 1 is the widow of Late Shri Prabhu.

Decree passed by the Punjab High Court had become final and could not

have been assailed in this suit as has been rightly held by the trial court

while dealing Issue No.1. It is in the context of Punjab High Court

judgment that plea of adverse possession has been set up, obviously, because

on the face of Punjab High Court judgment defendant no.1 could not have

claimed herself to be exclusive ownership rights flowing from her Late

husband. Only respect of the remaining half share she could have claimed

ownership rights by way of adverse possession.

17. Learned senior counsel has next contended that after the decree was

passed by Punjab High Court on 10th October, 1954, the nature of possession

of plaintiffs stood changed. The possession of defendant no.1, after passing

of decree in the year 1954, became joint in view of the

settlement/compromise arrived at between the parties. After passing of the

decree plaintiffs otherwise, are deemed in constructive possession of the suit

property being co-sharer. This argument also has no force. No conclusive

evidence could be led by the appellant that after the decree a compromise or

settlement was arrived at between the parties whereby defendant no.1

accepted their joint possession. In fact, the evidence led by defendant no. 1

before the trial court show otherwise. Defendant no.1 all throughout

disputed the possession of the plaintiffs. There is nothing on record to

indicate that defendant no.1 acknowledged or accepted the joint possession

of plaintiffs at any stage.

18. Learned senior counsel has further contended that trial court has

committed a patent error by accepting the house tax receipts as well as

electricity and water bills to conclude that defendant no.1 had derived

ownership rights by way of adverse possession. Reliance has been placed

on Harbans Kaur versus Bhola Nath & Ors. 57 (1995) DLT 101. This

argument is rejected being misconceived. The above referred documents

have not been accepted as a proof of title of the defendant no.1. Judicial

notice of the above documents has been taken with regard to physical

possession of the defendant no. 1 in respect of the suit property and nothing

wrong can be found with this approach. In Harbans Kaur (supra), it has

been held that a person who is in possession is bound to pay house tax as

well as electricity and water bills; meaning thereby such documents can be

accepted as proof of actual physical possession of a person.

19. Learned senior counsel has further contended that suit filed in the year

1946 was only for possession and no relief of partition was claimed at that

time, thus, Court was not competent to go into the question of partition of

the suit property. The decree passed in the year 1954 was merely a decree

of joint possession. No partition by metes and bounds had been ordered,

thus, in absence of specific demarcation of the share of the parties in the

decree. Executing Court could not have gone beyond the decree and allot

separate portions to the parties; meaning thereby the decree passed in the

year 1954 in its form was inexecutable. Executing Court could not have

gone beyond or behind the decree in exercise of its powers under Section 47

of the Code. Thus, finding returned by the trial court that suit was not

maintainable is perverse. Reliance has been placed on Vijay Kumar Jain

& Ors. versus A.R. Marwah 103 (2003) DLT 193. I need not to go into

this question in detail since, in view of the findings on the issue of adverse

possession suit must fail, inasmuch as, the suit otherwise is hopelessly

barred by time even if for the sake of arguments, contention of learned

senior counsel regarding decree being inexecutable are accepted. Suit filed

by the plaintiffs for partition, on the face of it, is hopelessly barred by time

as has rightly been held by the trial court. Vide decree passed by Punjab

High Court appellant and late Smt. Dharam Kaur (mother of plaintiff nos. 2

and 3 and defendant no.2) were jointly held entitled to half share in the suit

property; while the other half share vested in defendant no.1. The hostility

between the plaintiffs and the defendant no.1right from the day one is writ

large since defendant no.1 had been resisting the claim of plaintiffs to the

possession of suit property, inasmuch as, they were never in joint possession

of the suit property as is evident from the evidence on record. Thus, the

cause of action for filing the suit for partition arose on 15th October, 1954

when the decree was passed and the plaintiffs ought to have filed the suit for

partion, if any, within the period of three years from the said date, that is,

October, 1957. However, the present suit has been filed in the year 1976,

that is, after about 22 years. Period of limitation relating to a partition suit

would be three years under the residuary provision, that is, Article 113 of the

Limitation Act which envisages a period of three years for filing such suits

from the date when the right to sue accrues. In the instant case, right to sue

commenced on the date when decree was passed by Punjab High Court on

15th October, 1954.

20. In the light of above discussions, appeal is dismissed. No order as to

costs.

A.K. PATHAK, J.

AUGUST 26 , 2013 ga