Delhi High Court
Sat Narain Gupta And Anr. vs Shri Bansi Lal And Anr. on 3 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA Nos.285/2013 & 286/2013
% 3rd January , 2014
1. RSA No285/2013
SAT NARAIN GUPTA AND ANR. ......Appellants
Through: Mr. Amarjit Singh, Advocate.
VERSUS
SHRI BANSI LAL AND ANR. ...... Respondents
Through:
2. RSA No286/2013
SAT NARAIN GUPTA AND ANR. ......Appellants
Through: Mr. Amarjit Singh, Advocate.
VERSUS
SHRI BANSI LAL AND ANR. ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
RSANos.285/2013 & 286/2013 Page 1 of 7
RSA No.285/2013
1. This Regular Second Appeal filed under Section 100 of the
Code of Civil Procedure, 1908 (CPC) impugns the concurrent findings of
facts and law by the Courts below dismissing the suit for possession, mesne
profits etc filed by the appellants herein (the plaintiffs in the trial Court).
Trial Court dismissed the suit for possession etc by the judgment dated
13.8.2012. The appellate Court dismissed the appeal filed by the present
appellants/plaintiffs by its judgment dated 31.8.2013, hence this present
second appeal under Section 100 CPC.
2. Both the Courts below have dismissed the suit of the plaintiffs
on two counts. First is that if the plaintiffs claim that the suit property was
part of the property no.ER15 to ER20, Inderpuri, New Delhi-12 which form
part of khasra nos.1647 to 1649 and the defendants claim that the suit
property was not part of khasra nos.1647 to 1649 but was part of khasra
no.1652, then it was upon the appellants/plaintiffs to discharge the onus of
proof that the suit property falls in the khasra nos.1647 to 1649 and not in
khasra no.1652. Courts below have held that mere filing of site plan
showing location of the suit property and the cross-examination of the
witnesses of the other side will not necessarily prove that the suit property
RSANos.285/2013 & 286/2013 Page 2 of 7
will form part of khasra nos.1647 to 1649 and not of khasra no. 1652. The
Courts below have also held that merely because appellants/plaintiffs proved
that they were the owner of the property no.ER-15 to ER-20 forming part of
the khasra nos.1647 to 1649 by virtue of earlier decrees obtained against the
Delhi Development Authority (DDA), it does not necessarily follow that the
defendants are in fact in possession of a part of khasra nos.1647 to 1649 and
not khasra no. 1652 as claimed by the appellants/plaintiffs.
The second aspect which has been held against the
appellants/plaintiffs for dismissing of the suit is that the suit filed in the year
2000 is hopelessly time barred and hit by Article 65 of the Limitation Act,
1963 in view of the fact that predecessor-in-interest of the defendant
no.2(being the defendant no.1 who sold and transferred his rights alongwith
possession to defendant no.2) was in possession of the suit property way
back from 1980. This possession at least from 1980 became clear from the
suit filed by the defendant no.1 in 1980 wherein he stated he was in
possession of the suit property as owner, and in this suit the predecessor-in-
interest of the appellant no.1/plaintiff no.1 was the defendant no.1. The
present suit was filed in the year 2000 i.e after 12 years from 1980 when the
predecessor-in-interest of the appellant no.1/plaintiff no.1 was put to notice
RSANos.285/2013 & 286/2013 Page 3 of 7
about the illegal possession of the defendant no.1. Therefore, suit on this
account was accordingly dismissed as barred by limitation.
3. Before me, counsel for the appellants/plaintiffs argues that the
Courts below have committed illegality in overlooking the provision of
Order 7 Rule 3 CPC which states that in case of a suit relating to immovable
property it is sufficient to identify the property by a plan and since the
appellants/plaintiffs had proved and exhibited site plan of the suit property
the trial Court ought to have held that defendants were in fact in possession
of part of khasra nos.1647 to 1649. To buttress this argument, it is also
urged that onus of proof of issue no.2 was on the defendants as to whether
defendants were in possession of khasra no.1652 and since the defendants
failed to prove the issue no.2 and discharge the burden of prove qua this
issue no.2, appellants/plaintiffs should succeed by the Courts holding that
defendants are in possession of part of khasra nos.1647 to 1649 and not
khasra no.1652.
(ii) The argument urged on behalf of the appellants before me is
misconceived because the only object of Order 7 Rule 3 CPC is to identify
the property for seeking its possession, but this provision will not apply
where the issue is of location of the property as to whether the same falls in
RSANos.285/2013 & 286/2013 Page 4 of 7
khasra nos.1647 to 1649 as claimed by the appellants/plaintiffs or it falls
within khasra no.1652 as per the stand of the defendants. To discharge this
onus the appellants/plaintiffs had to summon and prove through the record
of the revenue authorities the exact location of the suit property. The
appellants failed in discharging their onus as in the suit no demarcation was
got done from the revenue authorities with respect to location of the suit
property as to the same falling within khasra nos.1647 to 1649 and not
khasra no.1652. Therefore, the argument urged on behalf of the appellants
by placing reliance upon Order 7 Rule 3 CPC is misconceived and rejected
and the Courts below have rightly held that appellants have failed to prove
that the property of which possession is claimed from the
respondents/defendants was situated in khasra nos.1647 to 1649.
4. The second aspect of the suit being barred by limitation is also
rightly decided by the trial Court and counsel for the appellants could not
dispute that from the year 1980 the predecessor-in-interest of the appellant
no.1/plaintiff no.1 knew that the defendant no.1 was in possession of the suit
property and through whom the defendant no.2 now claims. I may note that
as per the legal position under Article 65 of the Limitation Act, 1963 there is
a principle of tacking i.e different periods of different trespassers can be
tacked so as to form a total number of 12 years and it is not necessary that
RSANos.285/2013 & 286/2013 Page 5 of 7
for entire period of 12 years there should only be one trespasser. The aspect
of 12 years is a period so far as the owner is concerned for filing of the suit,
and the period of 12 years is not with respect to a single trespasser who need
not continue for the entire period of 12 years. I may also note that the
Courts below have noted the fact that the appellant no.1/plaintiff no.1, who
is successor-in-interest of the original owner late Sh. Bidhi Singh, in the sale
deed in his favour there is the mention of the fact that actual physical
possession of the suit property was not delivered to the appellant
no.1/plaintiff no.1 and it was stated in the sale deed that the suit property is
in possession of the tenants. Counsel for the appellants concedes that both;
the present appellant no.1 and the main contesting defendant no.2; are in fact
successors-in-interest of the original contesting parties being late Sh. Bidhi
Singh, the original owner and the defendant no.1 being the alleged original
trespasser. Therefore, I do not find that the Courts below have in any
manner committed any error in its findings and conclusions of the suit being
hopelessly barred by time as the suit is filed in the year 2000 and at least in
1980 it was the defendant no.1 who was in possession of the suit property
and through whom the defendant no.2 claims.
5. A second appeal under Section 100 lies only if there is a
substantial question of law. The aforesaid discussion shows that there is no
RSANos.285/2013 & 286/2013 Page 6 of 7
question of law involved, much less a substantial question of law, as
required under Section 100 CPC for this Court to interfere. The appeal
being without any merit is therefore dismissed, leaving the parties to bear
their own costs.
+ RSA No.286/2013
This appeal will also stand dismissed in view of aforesaid
discussions while dismissing RSA No.285/2013.
JANUARY 03, 2014 VALMIKI J. MEHTA, J.
Ne
