Nanhey Khan vs Smt. Kala Mehta
2013 Latest Caselaw 5743 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 12th December, 2013.

+      RFA 522/2013, & CMs No.17822/2013 (for stay) & 17824/2013
       (u/O VI R-17 for leave to amend W.S.)

       NANHEY KHAN                                              ..... Appellant
                           Through:      Mr. Ajay Kumar, Adv.

                                    Versus

    SMT. KALA MEHTA                          ..... Respondent
                  Through: Mr. M.M. Hasmi, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree (dated 26 th August,

2013 of the Court of the Additional District Judge (ADJ)-01, South District,

Saket Courts, New Delhi in Suit No.186/2011 filed by the respondent

against the appellant) of recovery of possession from the

appellant/defendant of property No.7C/6, Gandhi Park, Hauz Rani, Malviya

Nagar, New Delhi.

2. The appeal came up for hearing first on 11th November, 2013, when

the counsel for the respondent/plaintiff being on caveat, appeared. The

appeal was admitted for hearing and the Trial Court record requisitioned.

Considering the nature of the controversy and further considering that the

parties have been litigating since the year 1993 and yet further finding that

the respondent/plaintiff had not been awarded any mesne profits/damages

for use and occupation, with consent of the counsels, hearing was expedited

and the appeal listed for today for hearing. The counsels have been heard.

3. The respondent/plaintiff sued for possession of the property,

pleading:

(i) that the respondent/plaintiff was the owner of the property;

(ii) that the respondent/plaintiff though born a Hindu converted to

Islam on the date of her marriage to the appellant/defendant on 8 th

September, 1981;

(iii) that the Nikahnama contained an Ikrarnama that the

appellant/defendant shall have no claim over the movable and

immovable properties of the respondent/plaintiff;

(iv) that after marriage, the appellant/defendant started living with

the respondent/plaintiff in the property aforesaid owned and

possessed by the respondent/plaintiff; two children from the previous

marriage of the respondent/plaintiff were also residing with them in

the said property;

(v) that marital disputes arose between the parties leading to Talaq

on 16th September, 1992 and whereafter, the respondent/plaintiff

returned to the religion of her birth;

(vi) that the appellant/defendant however on 21st August, 1993 filed

a civil suit seeking declaration, on the basis of some forged

documents, that the respondent/plaintiff had sold the said property to

him, and permanent injunction restraining the respondent/plaintiff

from dispossessing him from the said property;

(vii) that the said suit was dismissed by the Court of the Civil Judge

on 12th September, 2007 and first appeal filed by the

appellant/defendant was also dismissed on 15th January, 2009 by the

Court of the ADJ, Delhi;

(viii) that the appellant/defendant had however failed to vacate the

premises even though had no right thereto and inspite of a notice

dated 13th February, 2009 got issued by the respondent/plaintiff in

this regard.

4. The appellant/defendant contested the suit by filing a written

statement, on the grounds:

(a) that the respondent/plaintiff was not the owner;

       (b)     that the suit was undervalued;




        (c)      that the notice preceding the suit was defective;

       (d)      that the appellant/defendant had been residing in the said

property for the last 30 years and had got construction over the plot in

question which was lying vacant;

(e) that the respondent/plaintiff had left the company of the

appellant/defendant without any reason and no divorce had taken

place.

5. The respondent/plaintiff filed a replication.

6. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 20th October, 2009:

"1. Whether the plaintiff is entitled to a decree for possession against the defendant? OPP

2. Relief."

7. The respondent/plaintiff besides herself, examined three other

witnesses. The appellant/defendant besides himself, examined one another

witness.

8. The learned ADJ has decreed the suit in favour of the

respondent/plaintiff, finding/observing/holding:

(I) that the appellant/defendant, in the suit earlier filed by him, had

admitted that the respondent/plaintiff was the owner of the property

before marriage and had failed to prove that the respondent/plaintiff

had transferred the property to him; the judgment and decree in the

earlier suit filed by the appellant/defendant had attained finality;

(II) that the appellant/defendant had not led any evidence to prove

to be in possession of the suit property prior to his marriage with the

respondent/plaintiff on 8th September, 1981;

(III) that mere residence in the suit property as the husband of the

respondent/plaintiff did not make the appellant/defendant the owner

thereof;

(IV) that the appellant/defendant in the suit earlier filed by him had

claimed that the respondent/plaintiff had transferred the property to

him vide Agreement to Sell, Power of Attorney and Will etc. all dated

30th December, 1993 but the said documents were held to be not

genuine;

(V) that the respondent/plaintiff had proved the Nikahnama,

whereunder the appellant/defendant had agreed not to claim any share

in the property of the respondent/plaintiff;

(VI) that the respondent/plaintiff had also proved dissolution of the

marriage by Talaq.

9. The counsel for the appellant/defendant has raised only one argument.

It is contended that the claim of the respondent/plaintiff for possession of

the property was barred by limitation. It is argued that the cause of action

for the relief of possession accrued to the respondent/plaintiff on 21st

August, 1993, when the appellant/defendant had filed the suit aforesaid

against the respondent/plaintiff and the suit from which this appeal arises

filed by the respondent/plaintiff in the year 2009, was beyond 12 years and

thus barred by time.

10. On enquiry, as to which Article of the Schedule to the Limitation Act,

1963 governs the period of limitation for such a suit, the counsel for the

appellant/defendant refers to Article 65 of the Act.

11. However upon it being pointed out to the counsel for the

appellant/defendant that the period of 12 years provided therein begins to

run from the date when the possession of the appellant/defendant becomes

adverse to that of the respondent/plaintiff and that there is no such plea of

the appellant/defendant in his written statement and no such issue was

claimed, the counsel for the appellant/defendant invites attention to CM

No.17824/2013 accompanying with the appeal, under Order VI Rule 17 of

the Civil Procedure Code (CPC), 1908 for amendment of the written

statement to take the plea that the appellant/defendant has remained in

uninterrupted, hostile and continuous possession of the suit property for

more than 30 years and is eligible to be declared as owner thereof, having

perfected his title by way of adverse possession.

12. No case for allowing such amendment is made out. After the

amendment of the CPC with effect from 1st July, 2002, no application for

amendment can be allowed after the trial has commenced, unless the Court

comes to the conclusion that inspite of due diligence, the parties could not

have raised the matter before the commencement of the trial. Here, the trial

has already been completed. There is not even a whisper in the application

of any due diligence inspite of which the plea now sought to be taken by

way of amendment, could not be taken earlier. The application is thus liable

to be dismissed.

13. There is another aspect of the matter. The Supreme Court in L.N.

Aswathama Vs. P. Prakash (2009) 13 SCC 229 and certain other judgments

followed by this Court in Chanan Kaur Vs. Ajit Singh 202 (2013) DLT

433 has held that a plea of adverse possession cannot be taken in alternative

to the plea of lawful possession to the property. The appellant / defendant,

since the institution of the suit earlier filed by him on 21 st August, 1993 and

till the final decree dated 15th January, 2009 in that proceeding, was

claiming lawful title to the property and in which claim he failed. He cannot

after failing in his claim for lawful title, set up a defence of adverse

possession.

14. The counsel for the appellant/defendant has relied on Gulab

Chaudhary Vs. Govinder Singh Dahiya (2012) 189 DLT 236 to contend

that a suit for possession has to be filed within 12 years of the date, the

possession of the property becomes adverse to that of the appellant/plaintiff.

However, the same is not applicable as the claim of the appellant/defendant

in the suit filed by him, though adversarial to the title of the

respondent/plaintiff to the property, was not on the ground of hostile

possession but on the ground of a lawful title and which ground the

appellant/defendant could not establish.

15. No other argument has been raised.

16. There is thus no merit in the appeal, which is dismissed with costs in

favour of the respondent/plaintiff. Counsel's fee is assessed at Rs.11,000/-.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

DECEMBER 12, 2013 bs..