Delhi High Court
Smt. Urmila Devi & Anr vs Laxman Singh & Anr on 20 March, 2015
$~13
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA(OS)No.85/2014
% Date of Decision: 20th March, 2015
SMT. URMILA DEVI & ANR. ....Appellants
Through : Mr. Raman Gandhi and Mr.
Sunil Satyarthi, Advocates.
with appellant no.1 in
person.
versus
LAXMAN SINGH & ANR. ....Respondents
Through: Mr. Saurabh Tiwari,
Advocate.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
GITA MITTAL, J.
1. It is well settled that what is not pleaded cannot be proved
and facts admitted need not be proved. Yet the appellants assail
the judgment and decree dated 28th of March, 2014 passed by the
learned Single Judge of this court in the suit being
CS(OS)No.3275/2012 premised on their admissions leading to the
inevitable conclusion that no material issue necessitating trial
arose in the suit. As a result the court passed a decree in terms of
the prayer (a) in the plaint seeking recovery of possession of the
RFA(OS)No.85/2014 Page 1
suit property in favour of the plaintiffs (respondent herein) and
against the defendants, Urmila Devi and her husband Subhash
Chand (appellants herein). So far as the second prayer for grant of
mesne profits and damages is concerned, inquiry thereof is pending
in the suit on the original side of this court in accordance with law.
2. The facts giving rise to the instant case are within the narrow
compass. Laxman Singh and Smt. Hukum Kaur (son and wife
respectively of late Shri Ganpat Ram) who are the plaintiffs in the
suit - respondents herein, filed the CS(OS)No.3275/2012 against
the appellants, seeking possession, damages and mesne profits
claiming to be owners of the property bearing No.323/1-A, Block-
D, (Old No.229/1-A), Sangam Vihar, New Delhi 110062 ad
measuring 200 sq. yds. The property is a built up property, having
eight rooms, a store room and two wash rooms. The suit claim is
briefly noted hereafter.
3. As per the plaint, the said plot was purchased jointly by
Laxman Singh and his late brother Bhagat Ram by an agreement to
sell dated 12th April, 1985 executed in their favour by Shri Sohan
Dutt Gupta. Other usual documents in the nature of general power
of attorney, agreement to sell (both dated 12 th April, 1985) and a
cash receipt reflecting the sale consideration of `40,000/- were also
executed by the erstwhile owners.
It is noteworthy that these documents have been filed by the
appellants with their written statement and stand admitted by the
respondents in admission/denial of documents. The documents
have therefore, been exhibited before the learned Single Judge as
RFA(OS)No.85/2014 Page 2
the documents of the appellants in accordance with law. There is
no dispute that the property was built up by Laxman Singh and
Bhagat Ram and at present, is having eight rooms, a store room and
two wash rooms.
4. About twenty years prior to the filing of the suit in 2012, one
of the two brothers namely Bhagat Ram, a bachelor, died intestate.
He was also issueless at the time of his death. As such, his mother
Smt. Hukum Kaur, being the only Class I heir, inherited his fifty
per cent share in the said property. As such the plaintiffs, Laxman
Singh and Hukum Kaur, were the exclusive and absolute owners of
the suit property.
5. Approximately 14 years prior to filing of the suit, the
defendants approached Shri Ganpat Ram seeking permission to
take shelter in the suit property for a few months. Late Shri Ganpat
Ram permitted them to reside in one of the rooms in the suit
property intermittently. In the year 2008, the defendants
approached the plaintiffs seeking permission to reside in two rooms
of the property. However this request was not acceded too as the
plaintiffs needed the property for their own purposes.
6. In July, 2010, the plaintiffs asked the defendants to vacate
the only room in their possession as it was needed for the purpose
of a wedding in the family. It was pointed out to them that
permission to reside in the room stood revoked in July, 2010 and in
the event they failed to handover the possession, they would be
treated as trespassers.
RFA(OS)No.85/2014 Page 3
7. Late Shri Ganpat Ram was suffering from tuberculosis, was
also diabetic and he unfortunately died on 20 th of August, 2010 due
to complications arising therefrom. In December, 2010, the
plaintiffs reminded the defendants to vacate the suit property, again
making it clear that on their failure to do so they would be treated
as trespassers and the plaintiffs would be compelled to initiate legal
action against them.
8. The plaintiffs have stated that up to 21st of February, 2011
when the suit property was utilised for the purposes of marriage of
the son of Laxman Singh‟s sister Bimla Devi, all the rooms, except
one room occupied by the defendants, were under the lock and key
of the plaintiffs. However, between 22nd of February, 2011 and 3rd
of March, 2012, instead of handing over the possession, Urmila
Devi filed CS No.35/2011 in the Saket District Court for
permanent injunction against dispossession by the plaintiff no.1
(Laxman Singh) and his two sisters. Smt. Hukum Kaur (plaintiff
no.1 in the present litigation and co-owner of the property) was not
impleaded as a defendant.
9. When the plaintiffs visited the suit property after receipt of
the summons in CS No.35/2011, they discovered that the
defendants had broken open the locks of all the rooms of the suit
property and replaced the same with their own locks. The
defendants took shelter under a false police complaint filed by
them.
10. Laxman Singh and his siblings contested the CS No.35/2011
by filing a common written statement setting up the same pleadings
RFA(OS)No.85/2014 Page 4
as noted above. Additionally, one of the sister‟s of Laxman Singh,
namely, Smt. Meera Devi (a co-defendant in CS No.35/2011) filed
an application therein under Order VII Rule 11 of the Code of Civil
Procedure for rejection of the plaint.
11. The learned Civil Judge held that the appellant was
admittedly a licensee and that on the eve of filing of the suit by the
appellant, the licence stood revoked. It was held that no injunction
prohibiting recovery of possession against the licensee as prayed
by the appellant was maintainable as the licensee cannot continue
to retain possession after termination of the license. By the
judgment dated 31st of May, 2012, the learned Civil Judge
therefore, rejected the plaint for want of cause of action.
12. Urmila Devi filed a first appeal being RCA No.29/2012
before the District Judge. On the 18th of October, 2012, the
Additional District Judge dismissed the application of the appellant
under Section 5 of the Limitation Act praying for condonation of
delay. As a result, the appeal was also dismissed.
13. Thereafter on the 28th of January, 2013 the appellant filed a
second appeal under Section 100 of the Code of Civil Procedure
which was registered as RSA No.30/2013 in this court praying for
setting aside of the order dated 18th of October, 2012. This appeal
was dismissed for non-prosecution by the order dated 27th of
September, 2013 in the presence of counsel for the respondent.
14. In this background, Laxman Singh and his mother Hukum
Kaur filed CS(OS) No.3275/2012 against Urmila Devi and her
husband, the appellants herein, seeking a decree for possession and
RFA(OS)No.85/2014 Page 5
mesne profits. The appellants contested the CS(OS)No.3275/2012
and filed a joint written statement. By way of the replication, the
plaintiffs repudiated all the assertions made in the written
statement.
15. Upon completion of pleadings, the suit was placed before the
court on 25th of April, 2013 for framing of issues when the
following order came to be passed:
"1. The suit is ripe for framing of issues.
2. The counsel for the defendants has handed over
proposed issues which are taken on record.
3. The counsel for the plaintiffs states that no
issue arises since there are no material pleas in the
written statement and the suit insofar as for the relief
of possession is liable to be decreed forthwith. It is
argued that some of the pleas in the written statement
in this suit are contrary to the pleadings by the
defendant no.2 who is the wife of the defendant no.1
in the earlier suit and the orders and the proceedings
therein.
4. The counsels have been heard for some time.
5. It is deemed expedient to record the statement
of both the defendants under Order 10 read with
Section 165 of the Evidence Act.
6. On enquiry, it is informed that neither of the
defendants are present in the Court today.
7. Both the defendants are directed to personally
appear before this Court on 24th May, 2013."
RFA(OS)No.85/2014 Page 6
16. The appellants avoided making the statement as directed by
the court on the 28th of May 2013. Either they did not appear or
when they appeared, their counsel did not appear or sought
adjournment for one reasons or another on the 28th of May, 2013;
13th August, 2013; 5th September, 2013; 9th October, 2013 and 8th
November, 2013.
17. Finally on the 8th of November, 2013, counsel for the
plaintiffs (present respondents) pressed that there were no material
pleadings in the written statement and no issue therefore, was
required to be struck. It was prayed that so far as relief of
possession is concerned, the suit was liable to be decreed. The
court heard arguments on this aspect of the matter and gave liberty
to the parties to place judicial precedents relied upon by them in
support before the court.
18. Learned counsel for the plaintiffs had pointed out that the
defendants had admitted that they entered the property for
temporary purposes with the permission of Shri Ganpat Ram and
were paying no consideration. After their licence stood terminated,
they had no locus standi to continue to remain in possession.
19. In the written statement, the appellants had claimed that with
the permission of Sh.Ganpat Ram and that they were residing with
Shri Ganpat Ram in joint possession of the property to the
exclusion of the plaintiffs. The appellants claimed that they were
taking care of the day to day needs of Late Shri Ganpat Ram and
looking after all aspects of his life. A vague plea that the plaintiffs
RFA(OS)No.85/2014 Page 7
were never in possession of the property for the last 18 years was
set up.
20. The defendants set up a Will dated 4th January, 2010
executed by late Shri Ganpat Ram and claimed bequest in favour of
Smt. Urmila Devi of 50% of the suit property by him as owner
thereof. The Will contains a declaration that Bhagat Ram and
Laxman Singh were the owners of the property.
21. At the same time, the defendants stated that as the plaintiffs
were claiming under an agreement to sell, general power of
attorney and receipt, etc., they were not the owners of the property.
In support of this submission, reliance was placed on the
pronouncement of the Supreme Court reported at (2012) 1 SCC
656, Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana &
Anr.
22. Interestingly, the appellant also set up a half baked plea that
the property had been purchased benami by late Shri Ganpat Ram
in the name of his two minor sons. Simultaneously, the appellant
further state that Shri Ganpat Ram was also trespasser on the
property for the reason that the property was located in an
unauthorized colony and the ownership of the property vests in the
government!
23. As against the above mutually destructive pleas, a third plea
is orally pressed before us in appeal that the plaintiffs had to
establish title as well as possession for a period of 12 years prior to
filing of the suit. The appellants claimed that as they were in
RFA(OS)No.85/2014 Page 8
exclusive possession of the property with Shri Ganpat Ram, they
were entitled to claim title by adverse possession.
24. After considering the entire matter, the learned Single Judge
concluded that all material facts with regard to ownership, creation
of the licence, its termination inter alia stood admitted and that the
plaintiffs were entitled to a decree of possession resulting in the
impugned judgment and decree dated 28th of March 2014 of
possession in favour of the respondents. The learned Single Judge
also observed that a decree could have been passed under Order X
Rule 4 CPC for the failure of the defendants to make the statement,
yet the matter was considered on merits. The appellants have
assailed this judgment before this court.
25. Both sides have taken us through the entire record of CS(OS)
No.3275/2012 including the documents filed by them. The
respondents have also filed the certified copies of all prior litigation
as well which also have been brought to our attention. Protracted
submissions were also orally addressed.
Binding admissions by and on behalf of the appellants
26. So far as present consideration is concerned, we may first
and foremost notice the stand of the appellants on the essential
facts which have been treated as admissions by the learned Single
Judge and have entitled the plaintiffs (present respondents) to the
judgment and decree of possession, under the following headings :
RFA(OS)No.85/2014 Page 9
A. Admissions by the appellants that Laxman Singh and Bhagat
Ram were the owners of the suit property.
B. Admission that occupation of the appellants was because
Urmila Devi was inducted as a mere licencee in the premises
by Late Shri Ganpat Ram.
C. Claim of title and possession of Urmila Devi not asserted
over entire suit property but restricted to only 100 sq. yards
i.e. of only half of the suit property.
D. Appellants case that they were occupying suit property with
knowledge of family members of Ganpat Ram and therefore,
the appellants‟ occupation had the respondents‟ implied
consent to the same.
E. Appellants claim that they were in possession with Ganpat
Ram and hence the admission that they were not in exclusive
possession of the property.
F. Claim of donation of 100 yds. i.e., fifty percent of the
property owned by Bhagat Ram to Urmila Devi.
G. Claim of the title by prescription on the sole plea that
Urmila Devi was in joint possession with Ganpat Ram.
H. Termination of licence to occupy.
I. Claim over the entire suit property.
27. We hereafter note the admissions made by the defendants on
the above aspects as emerge from the suit record.
RFA(OS)No.85/2014 Page 10
A. Admissions by the appellants that Laxman Singh and Bhagat
Ram were the owners of the suit property.
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(i) The appellants have unequivocally declared that the suit
property was purchased by late Shri Ganpat Ram in the name of his
two sons Shri Laxman Singh and Bhagat Ram by his own means.
It is further stated that as Bhagat Ram expired untimely and
intestate, without any legal heir or class-I heir, after his death, Shri
Ganpat Ram became the owner of the half share of the property in
question. In support of these pleas, the appellants have filed the
following documents on the record of CS(OS)No.3275/2012:
a) A General Power of Attorney by Sh. Sohan Dutt Gupta in
favour of Bhagat Ram & Laxman Singh, both son of Shri Ganpat
Ram (Ex. D-1).
b) The Agreement to Sell dated 12th April, 1985 of plot of land
measuring 200 sq. yards , bearing No. 323/1-A, Block-D (Old No.
229/1-A) executed between Sh. Sohan Dutt Gupta as owner and
seller and Shri Bhagat Ram and Laxman Singh, both sons of Shri
Ganpat Ram, r/o 15/1639, Govind Puri, Kalkaji, New Delhi (as
purchaser) [Ex.D-2]
c) Cash receipts in the sum of `40,000/- [Ex. D-3] executed by
Sohan Dutt Gupta in favour of Bhagat Ram and Laxman Singh
evidencing receipt of the sale consideration from them.
d) An affidavit dated 12th April, 1985 executed by Sohan Dutt
Gupta stating vacant and physical possession of the plot has been
handed over to the purchasers. (Exh.D-4)
RFA(OS)No.85/2014 Page 11
It is noteworthy that these very documents were also filed by
the appellant Urmila Devi as her documents with her plaint in CS
No.35/2011. Before the learned Single Judge, when put to
admission/denial, the respondents admitted these documents and
they were duly exhibited on record.
(ii) In the police complaint dated 19th January, 2011 lodged by
Urmila Devi, she had also written as follows:
"3. That the applicant had been allowed by Late Sh.
Ganpat Ram, who purchased the said plot in the name
of his two sons (1) Laxman and Bhagat out of two, son
Bhagat had been expired about 20 years ago and that
said Ganpat Ram, became the sole owner of the half
share in said property and the half share of his son
Bhagat. It is also pertinent to mention here that said
plot had been purchased by said Ganpat Ram with his
own earning and said Ganpat Ram only lived in the
said house alongwith family members of applicant."
5. That after untimely death of his son Bhagat he
had a shocked in his mind and that he regularly lived
with family of applicant. Therefore, said Late Ganpat
Ram donated mutually and expressly and openly and in
the knowledge of his family members, half share of
Bhagat in the said property to the applicant, to which
above noted persons had no any objection and that they
all were consented persons thereto and that they raised
no any objection to the decision of Late Sh. Ganpat
Ram.
6. That, said Late Sh. Ganpat Ram died on
20.10.2010 due to sickness and old age, but
unfortunately and to the shock of applicant and her
family members, all above noted persons began to
extend threat in dire consequences to kill the husband
of applicant and to get vacated the house of applicant
forcibly to which they posses no right and title as
RFA(OS)No.85/2014 Page 12
applicant is the sole owner of half portion of said land
by prescription, as she has been living in the said house
for last more then 18 years and in physical possession
and in use and occupation openly, expressly, regularly
and without any interruption and that said half portion
of property in question was donated and bequeathed in
favour of applicant by Late Ganpat Ram before
witnesses, and in the open knowledge of above noted
persons."
(Underlining by us)
This complaint is also relied upon by the appellants before
the learned Single Judge.
(iii) The appellants (defendants) also set up an alleged Will
dated 4th January, 2010 purportedly executed by late Shri Ganpat
Ram as testator which also has been filed by them in CS(OS)
No.3275/2012. In this Will, it is stated that "said property was
purchased by the testator in the name of his two sons, namely, Mr.
Laxman Singh & Mr. Bhagat. That unfortunately and with the
mercy of God one son of the testator, namely, Mr. Bhagat expired
untimely without surviving any legal heir behind him, hence
testator become the sole owner of the half portion of the said
property measuring 100 sq. Yds. Out of 200 sq. Yds. And that Mr.
Laxman Singh is the absolute owner of the property measuring
100 sq. yds. out of 200 sq. yds. In the above noted property,
therefore, no other person has any right, title or interest of any
nature over the said half portion of the property, i.e., 100 Sq. Yds.
out of 200 Sq. Yds." It is further stated that "the testator is the
RFA(OS)No.85/2014 Page 13
absolute and true owner of the said property after death of his son
Mr. Bhagat who expired issueless."
(iv) Let us now examine some unequivocal declarations of the
case of the respondents in the pleadings of the appellants. In para 3
of the plaint dated 22nd February, 2011 in CS No.35/2011, Urmila
Devi had stated that "late Shri Ganpat Ram, who purchased the
said plot in the name of his two sons (1) Laxman and Bhagat out of
two, son Bhagat had been expired about 20 years ago and that said
Ganpat Ram, became the sole owner of the half share in the said
property and the half share of his son Bhagat."
(v) In para A of the replication dated 16th August, 2011 in CS
No.35/2011, Urmila Devi reiterated the above stating that late
Bhagat Ram expired "untimely and intestate and without leaving
behind him legal heirs except the first grade legal heir, his father
Ganpat Ram. It is pertinent to mention here that said property in
question had been purchased by late Ganpat Ram from his earning
in the name of his two sons Laxman and Bhagat, therefore, after
death of Bhagat said late Ganpat Ram became the owner of the
property in question of the share of Bhagat."
(vi) In Urmila Devi‟s reply dated 16th February, 2012 to the
application under Order VII Rule 11 (a) (c) and (d) of CPC filed by
defendant no.2 - Meera Devi, daughter of Ganpat Ram, as
preliminary objection No.2 Urmila Devi‟s stand is that "defendant
no.3 - Laxman is the real and lawful owner of the half portion of
the subject matter...".
RFA(OS)No.85/2014 Page 14
(vii) Along with the plaint, in her CS No.35/2011, Urmila Devi,
the appellant had filed an application under Order XXXIX of the
Code of Civil Procedure praying for interim orders against the
respondents herein. This application was dismissed by the learned
Civil Judge - 04 by an order passed on 16th August, 2011. In this
order, the learned Civil Judge had inter alia held as follow:
"6. The plaintiff has tried to claim ownership
firstly on the basis of prescription and secondly, by
way of will executed by late Sh. Ganpat Ram. It is
admitted by the plaintiff that the property was
purchased in the name of defendant no.3 and one Sh.
Bhagat. However, it is stated that on the death of Sh.
Bhagat, the Ganpat Ram inherited half of the share of
the suit property and subsequently executed the will in
his favour out of love and affection. There are other
legal heirs of Sh. Bhagat who survived him and upon
whom the share of Sh. Bhagat would have devolved.
Even otherwise, father Sh. Ganpat Ram is a Class-II,
legal heir upon who the share of Sh. Bhagat could
not have devolved in the presence of the class I legal
heir. Therefore, Sh. Ganpat Ram could not have
passed on a better title than what he had.
7. Right over the suit property has also been sought
to be established on the basis of prescription extending
over 18 years. Prescription as opposed to adverse
possession does not entail acquisition of title over the
property. It only relates to a right to use the property
of another that is consistent with the rights of the
owner.
8. Even assuming that she has stepped into the
shoes of one of the co-owners (which version is
unacceptable for reason stated above), in effect by way
of the present suit it appears that the plaintiff is seeking
RFA(OS)No.85/2014 Page 15
partition of the suit property in the garb of injunction
as the shares are not defined.
9. Possession has been claimed over the entire suit
property and injunction against dispossession has
been sought only with regards to 100 sq. yards out of
200 sq. yards. It has not been specified as to which
area of 100 sq. yards is the relief claimed for. For
reasons stated above the plaintiff has failed to establish
a prima facie case. Since, no prima facie case has been
made out, the other essentials of balance of
convenience and irreparable injury are not being
delved upon."
(Emphasis by us)
28. It is explicit from the above documents including the police
complaint and Will as well that both the appellants were claiming
creation of the licence only in favour of Urmila Devi and
occupation of others (which included her husband Subhash Chand)
as members of her family.
The appellants have thus unequivocally and repeatedly
unconditionally admitted that Laxman Singh and Bhagat Ram were
the owners of the suit property.
29. In the impugned judgment, the learned Single Judge has
noted that from these documents filed by the appellants, it was
evident that after passing due consideration to the original owner,
Laxman Singh and late Bhagat Ram have legally entered into
possession of the suit property as back as in 1985 and that their
father Shri Ganpat Ram had the consent and permission of his sons
to reside in the suit property. This finding is supported by the
RFA(OS)No.85/2014 Page 16
pleadings and the documents filed by the appellants as discussed
hereafter.
B. Admission that occupation of the appellants was because
Urmila Devi was inducted as a mere licencee in the premises
by Late Shri Ganpat Ram.
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30. Though the discussion with regard to title overlaps the
possession consideration, we set down hereafter some explicit
factors in the appellants‟ case with regard to the nature of the
appellants‟ occupation.
(i) In the CS No.35/2011 Urmila Devi in paras 3, 5 and 7 has
claimed that "Plaintiff had been allowed by late Shri Ganpat
Ram..... Ganpat Ram only lived in the said house along with family
members of plaintiff."
There is no claim of right of any family member of Urmila
Devi of any kind. This plea is reiterated in her replication dated
16th August, 2011 in Para-A & D.
(ii) Even in her reply dated 16th February, 2012 to the
application under Order VII Rule 11 (a) (c) and (d) of the CPC,
Urmila Devi has taken the same plea.
(iii) In the reply dated 16th August, 2011 filed by Urmila Devi to
the application under Section 340 Cr.P.C. in CS No.35/2011, it is
stated that "plaintiff was permitted by late Shri Ganpat Ram to
live in the suit property as his daughter."
RFA(OS)No.85/2014 Page 17
(iii) In the oral arguments on the application filed under Order
VII Rule 11 of the CPC in CS No.35/2011, counsel for Urmila
Devi on the 17th of April, 2012 stated that "a person in peaceful
possession of property cannot be dispossessed without due process
of law and a suit for permanent injunction is maintainable to
secure his peaceful possession." The appellant thus did not assert
any claim of ownership.
(iv) Thereafter while making submissions on the application
under Order VI Rule 17 of the C.P.C. on the 5th of May 2012, the
civil court had noted the following submissions on behalf of the
appellant Urmila Devi :
"During the course of arguments ld. Counsel for the
plaintiff has admitted that as stated in his plaint, the
plaintiff is residing in the suit property as a licensee
for more than 19 years".
(v) This was followed by the following submission made by
counsel for Urmila Devi on the 29th of May 2012 before the learned
Civil Judge :
"Counsel for the plaintiff has stated that as a
licensee his license has not been terminated till
date to which counsel for the defendant has replied
that mere threat of dispossession by the defendant as
stated by the plaintiff in his plaint is a deemed notice
of revocation of such licensee."
These statements made on behalf of Urmila Devi have not
been challenged by the appellants and bind them.
(vii) In para 5 of RCA No.29/2012, dated 22nd August, 2012
before the learned District Judge - cum- ASJ I/c, South and South
RFA(OS)No.85/2014 Page 18
East, Saket Court Complex, Urmila Devi again repeated that "she
had been allowed by late Shri Ganpat Ram, who purchased the plot
in the name of his two sons... that said plot had been purchased by
said Ganpat Ram with his own earning and said Ganpat Ram only
lived in said house along with family members of the appellant".
This was reiterated in the grounds taken by her wherein she has
stated that she was in possession of the said premises as a licensee
and that she has not received any notice from the respondents about
the termination of the license and that without giving notice, the
license cannot be revoked.
(viii) In para 7 of the second appeal dated 28th of January, 2013,
being RSA No.30/2013 filed in this court praying for setting aside
and quashing the order dated 18th October, 2012 of the learned ADJ
passed in RCA No.29/2012, Urmila Devi has clearly admitted that
she was the licensee in the premises when she avers that "the term
licensee in the context can only be understood as having a meaning
of the appellant/plaintiff having come into occupation of the suit
property in a lawful manner through the consent of the said
Ganpat Ram to whom the respondents (children of Ganpat Ram)
are related."
(ix) The matter of the admissions does not end here. In para 3 of
the preliminary objections in the joint written statement dated 12th
March, 2013, filed in CS(OS) No.3275/2012 (the present suit), the
appellants clearly state that they were in possession of the property
"though in occupation with the permission of the said Ganpat Ram.
It was the said late Shri Ganpat Ram who had permitted or
RFA(OS)No.85/2014 Page 19
inducted the defendants to reside with him in the suit property". At
the same time, the appellants have pleaded, relied and claimed
under the said Will.
There is thus no ambiguity about the above admissions by
both the appellants. Therefore, even as late as on 5th and 29th May,
2012, through her lawyer, as well as her own categorical pleadings
of Urmila Devi on 22nd August, 2012, 28th January, 2013 and joint
written statement dated 12th March, 2013 of both the appellants, it
was their consistent stand that the nature of occupation was that as
a mere licencee in the suit property who had permissive possession
of the suit property without paying any consideration.
The findings of the learned Single Judge to this effect are
unassailable.
C. Claim of title and possession of Urmila Devi not asserted
over entire suit property but restricted to only 100 sq. yards
i.e. of only half of the suit property.
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(i) In the plaint in CS No.35/2011, Urmila Devi did not assert
rights over the entire suit property but restricted her claim as
follows :
"She is the sole owner of half portion of the said land by
prescription, as she has been living in the said house for last more
than 18 years and in physical possession and in use and
occupation openly, expressly, regularly and without any
interruption and that said half portion of property in question was
donated and bequeathed in favour of plaintiff by late Ganpat Ram
RFA(OS)No.85/2014 Page 20
before witnesses, and in the open knowledge of above noted
person."
On these averments, she therefore made the following
prayer-A :
"Decree of permanent injunction thereby restraining the
defendants and their associates, agents, assigns and
representatives, successors and attorneys from selling,
transferring, dispossessing, mortgaging, alienating or creating
third party interest in the suit premises i.e., Property bearing Plot
No.323/1-A, Block-D (Old No.229/1-A), Sangam Vihar, New Delhi
110062 area measuring 100 sq. yards, out of area measuring 200
sq. yds., specifically shown in site plan as red colour."
(ii) In the plaint in CS No.35/2011, Urmila Devi does not even
remotely suggest existence of any Will in her favour. But in her
replication dated 16th August, 2011 in Para A, the appellant states
that "she has claimed only her half share in property, as she was
gifted by late Shri Ganpat Ram by way of Will Deed, which was
duly executed by late Shri Ganpat Ram before his death".
(iii) In para 3 of her reply to the application under Order VII Rule
11 (a) (c) and (d) of the CPC 1908 in CS No.35/2011, Urmila Devi
again reiterated that "she has claimed her right only 100 sq. yds.
land of said property honestly."
(iv) Urmila Devi has filed a document purporting to be a Will
dated 4th January, 2010 whereby she claims bequest by Ganpat
Ram (Bhagat Ram‟s 50% share) in her favour. In this document, it
is stated that Ganpat Ram, the "Testator with his free Will and
RFA(OS)No.85/2014 Page 21
without any pressure from any corner and in sound and disposing
mind bequeath his above said property in favour of the beneficiary
as Testator has adopted the beneficiary Smt. Urmila as his
daughter and that Testator mostly live with her in the above noted
house and that beneficiary Smt. Urmila maintain the Testator and
provide him food, clothe and take care of the Testator."
31. Even in RSA No.30/2013, Urmila Devi claimed only half
portion of the suit property. The unequivocal claim of Urmila Devi
throughout was to half of the suit property.
The above narration manifests that the claim of Urmila Devi
was thus confined to fifty percent of the suit property. Her
husband reiterated this claim in the joint written statement also
placing reliance on the alleged Will. No right at all was claimed by
the appellants over Laxman Singh‟s half share in the property.
(D) Appellants case that they were occupying suit property with
knowledge of family members of Ganpat Ram and therefore,
the appellants‟ occupation had the respondents‟ implied
consent to the same.
-------------------------------------------------------------------------
32. The appellants have also submitted that because the
respondents did not object to their occupation, the respondents had
impliedly consented to the same. In this regard, the following
pleadings are relevant:
(i) In para 5 of her plaint dated 2nd January, 2011 in CS
No.35/2011, Urmila Devi had stated as follows :
RFA(OS)No.85/2014 Page 22
"5. That after untimely death of his son Bhagat he
had a shocked in his mind and that he regularly lived
with family of plaintiff. Therefore, said late Ganpat
Ram donated mutually and expressly and openly and
in the knowledge of his family members, half share
of Bhagat in the said property to the plaintiff, to
which above noted persons had no any objection and
that they all were consented persons thereto and that
they raised no any objection to the decision of late
Sh. Ganpat Ram."
(ii) In the replication filed in CS No.35/2011 dated 16th August,
2011 - the plaintiff Urmila Devi states that "late Ganpat Ram has
given half share of the property in dispute to the plaintiff, despite
this no one raised any objection to this, therefore, all the
defendants had the implied consent to the possession and
occupation of the plaintiff in the house in question."
(iii) In her reply dated 16th August, 2011 to the application under
Section 340 Cr.P.C. filed by the defendants in CS No.35/2011,
Urmila Devi has stated that "she has been in use and occupation
and physical possession of the same for last more than 18 years
and that plaintiff was permitted by late Shri Ganpat Ram to live in
the suit property as his daughter." She further states that "no
defendant was in possession even in the suit property and that they
all had in their knowledge about the possession and occupation of
the plaintiff in the said suit property, therefore, all the defendants
had the implied or express consent to the possession of plaintiff in
the suit property."
RFA(OS)No.85/2014 Page 23
(iv) Several months later, in Urmila Devi‟s reply dated 16th of
February, 2012 to the application under Order VII Rule 11 (a)(c)
and (d) of the CPC (filed by defendant no.2 Meera Devi) in
CS No.35/2011, she again stated that "she has been living in the
property in question for last 19 years, without any interruption and
peacefully, expressly and obviously and in the well awareness of
all defendants, who had the expressly and impliedly consent to the
peacefully possession of plaintiff, therefore, it is well known settled
law that peaceful possession of any person cannot be interfered or
tampered without following process of law".
(v) In Para H of RCA No. 29/2012, Urmila Devi has averred
that "respondents itself admitted that the appellant is in possession
of the suit property as mere licensee and the license is liable to be
revoked at any time. But the appellant has not received any notice
from the respondent about the termination of the license."
In Ground-I of the RCA No.12/2012, Urmila Devi reiterates
her stand that, without giving the notice, her license cannot be
revoked, thus reiterating her position that she was a lawful licencee
of the owners.
33. It is the appellants admitted case that the plot of 200 sq.
yards bearing no. 323/1-A, Block-D (Old No.229/1-A), Sangam
Vihar, New Delhi 110062 was purchased in the names of Laxman
Singh and Bhagat Ram who each owned fifty percent share therein.
34. It is an admitted position of Urmila Devi that Bhagat Ram
had died intestate during the life time of his father Ganpat Ram.
His mother Hukum Kaur is alive even on date. Therefore, as the
RFA(OS)No.85/2014 Page 24
Class I heir upon death of Bhagat Ram, his mother Hukum Kaur
would be the successor of his half share in the suit property.
35. Urmila Devi has thus unequivocally and repeatedly admitted
that she was inducted into the suit property by Late Ganpat Ram,
father of Laxman Singh and husband of Hukum Kaur. According
to the case set up by Urmila Devi, she was a licensee because the
family of Ganpat Ram had not objected to the occupation of
Urmila Devi, and therefore they had all consented to the same.
Thus, Urmila Devi had set up a plea that as such she was a licensee
of Laxman Singh and successor of Bhagat Ram in the suit property.
36. As noted above, Urmila Devi‟s husband has not claimed an
independent stand or right and has filed a joint written statement
with his wife. He has also relied upon the very same documents as
his wife and also admitted the above facts. The appellants have
thus made a clear and categorical admission of occupation as a
mere licensee.
E. Appellants claim that they were in possession with Ganpat
Ram and hence they admit that they were not in exclusive
possession of the property.
-------------------------------------------------------------------------
37. The appellants have consistently taken the stand that they
were living with Shri Ganpat Ram in the suit property. Let us see
what has been said in this regard:
RFA(OS)No.85/2014 Page 25
(i) In paras 3, 5 and 7 of her plaint in C.S.No.35/2011 it is
stated that "Ganpat Ram only lived in the house". This plea is
reiterated in the Urmila Devi‟s replication.
(ii) In the written statement dated 12th March, 2013 filed by
Urmila Devi and her husband in CS (OS) 3275/2012, even while
for the first time setting up the plea in para 3 that "late Shri Ganpat
Ram was a tresspasser on the property", they categorically state
that he "was solely and entirely in occupation of the suit property
along with the defendants". They further state that "defendants
were residing with the said Ganpat Ram in joint possession of the
property to the exclusion of the plaintiffs" (respondents herein). It
is further stated that "defendants were in exclusive possession of
the entire suit property though in occupation with the permission
of the said Ganpat Ram.... It was Shri Ganpat Ram who had
permitted or inducted the defendants (Urmila Devi and her
husband) to reside with him in the said property".
Earlier on we have extracted para 7 of this written statement
above wherein the defendants have stated that they (present
appellants) were living as a family with the deceased Ganpat Ram.
(iii) In Para 5(d) of the written statement dated 12th March, 2013
in CS(OS)No.3275/20125, the appellants repeat that the suit
property was "exclusively being occupied by late Shri Ganpat Ram
jointly with the defendants who were permitted to occupy the
property".
(iv) In para 5(k) of the same written statement before the learned
Single Judge, the appellants have stated that :
RFA(OS)No.85/2014 Page 26
"It has been categorically averred in the said suit for
injunction that the plaintiffs were never in occupancy of any
portion of the suit property in the said period which was being
occupied by the defendants jointly with the said late Ganpat Ram."
(v) In Para 3 of the present appeal, which has been signed on 2 nd
May, 2014, Urmila Devi and her husband have again claimed that
they were in "exclusive possession of the entire suit property with
said Shri Ganpat Ram who had inducted or permitted the
appellants to reside in the same".
Therefore, both the appellants have unequivocally admitted
that during the lifetime of Late Ganpat Ram (expired only in
August, 2010), they were not in exclusive possession of the suit
property but were living therein as the family of Shri Ganpat Ram.
F. Claim of donation of 100 yds. i.e., fifty percent of the
property owned by Bhagat Ram to Urmila Devi
-------------------------------------------------------------------------
In para 5 of the plaint of CS No.35/2011 dated 22nd
February, 2011, Urmila Devi pleaded as follows :
"After untimely death of his son Bhagat, he (Ganpat Ram) had a
shocked in his mind and that he regularly lived with family of
plaintiff". Therefore the said "late Ganpat Ram donated mutually,
expressly and openly and in the knowledge of his family members
half share of Bhagat Ram in the said property to the plaintiff."
We note that, however, no document to support the claimed
„donation‟ is on record. The desperation of the appellants to
RFA(OS)No.85/2014 Page 27
perpetuate the illegal occupation is manifest from the legally
untenable pleas which have been put forth.
G. Claim of the title by prescription on the sole plea that
Urmila Devi was in joint possession with Ganpat Ram.
-------------------------------------------------------------------------
38. Let us examine another plea of the appellants of entitlement
to the property by prescription. We first note the pleadings by the
appellants in this regard :
(i) In para 6 of the plaint in CS No.35/2011, Urmila Devi set up
a plea of ownership of half portion of the said land by prescription.
(ii) In CS NO. 35/2011, Urmila Devi had filed replication dated
16th August, 2011 wherein it is stated that the "plaintiff possesses
title of ownership and that it is well settled law that peaceful
possession of any person cannot be interfered or tampered without
following process of law".
(iii) In para 7 of RCA No.29/2012, Urmila Devi claimed that she
was "the sole owner of half portion of the said land by
prescription, as she has been living in the said house for last 18
years and in physical possession and in use and occupation openly,
expressly, regularly and without any interruption and that said half
portion of property in question was donated and bequeathed in
favour of appellant by late Ganpat Ram before witnesses, and in
the open knowledge of above noted persons".
The above is repeated in grounds F & H of the appeal (RCA
No. 29/2012).
RFA(OS)No.85/2014 Page 28
39. The appellants have a completely misconceived notion of
acquisition of right in the property by prescription. We may
examine the articulation of the legal position by the Supreme Court
in its pronouncement reported at (2001) 4 SCC 713, Syndicate
Bank v. Prabha D. Naik & Anr. wherein in para 16, it is stated
thus:
"16. Article 505 of the Civil Code provides for
acquisition of things and rights by possession and the
same is ascribed to be positive prescription and
discharge of obligations by reason of not demanding
their fulfilment is known as negative prescription. The
word "prescription" is in general a mode of acquiring
title to incorporeal hereditaments by continued user,
possession and enjoyment during the time. Article 535
prescribes a negative element of prescription which is
akin to adverse possession. A prescriptive right
however, differs from adverse possession, since
prescription relates to incorporeal rights while adverse
possession applies to an interest in the title to property.
"Prescription" is usually applied to acquisition of
incorporeal hereditaments and negative prescription
obviously is a negation of such an acquisition.
"Prescription" admittedly, is a part of substantive law
but limitation relates to procedure, as such prescription
differs from limitation. The former is one of the modes
of acquiring a certain right while the latter viz. the
limitation, bars a remedy, in short, prescription is a right
conferred, limitation is a bar to a remedy. Chapter II of
the Portuguese Civil Code provides detailed articles
pertaining to prescription. Corpus Juris Secundum, Vol.
72 described the word "prescription" as below:
"In law prescription is of two kinds: it is either an
instrument for the acquisition of property or an
instrument of an exemption only from the
servitude of judicial process. In the first sense, as
RFA(OS)No.85/2014 Page 29
relating to the acquisition of property,
prescription is treated in adverse possession. In
the second sense, as relating to exemption from
the servitude of judicial process, prescription is
treated as Limitation of Actions."
Therefore, prescription also relates to intangible rights such
as the easements, whereas adverse possession applies to an interest
in actual title to immovable property. Untenable because vague
and incomplete, this plea of the appellants is also legally
misconceived in the light of the clear position in law.
H. Termination of license to occupy
40. In the present case, there is no written licence deed to
support the creation of the licence. The appellants have opposed
the suit on the plea that the licence had not been terminated. Let us
briefly examine the assertions of the appellant(s) with regard to the
objections of the respondents to continuation of occupation by the
plaintiff:
(i) In this regard, in para 6 of the plaint in CS No.35/2011,
Urmila Devi stated that - "... Late Sh. Ganpat Ram died on
20.10.2010 due to sickness and old age... all above noted persons
began to extend threat in dire consequences to kill the husband of
plaintiff and to get vacated the house of the plaintiff forcibly to
which they possess no right and title as plaintiff is the sole owner
of the half portion of said land..."
In para 12 of the plaint, she further pleaded:
RFA(OS)No.85/2014 Page 30
"That the cause of action firstly arose on 20.10.2010... all
defendants extended threat time to time and repeatedly to the
plaintiff to get vacated the said plot forcibly and unlawfully while
they have no any right and title therein..."
(ii) Urmila Devi's replication dated 16th August, 2011 in CS
No.35/2011 at para C notes "that all the defendants want to
dispossessed the plaintiff and her family members, forcibly and
illegally and intentionally, without following the process of law and
that all the defendants used entire illegal means and trick to
disposes the plaintiff and her family members from the suit
property."
(iii) In para 7 of RCA No. 29/2012, Urmila Devi has again urged
that :
"all above noted persons began to extend threat in dire
consequences to kill the husband of appellant to get vacated the
house of the appellant forcibly ..."
41. Taking a position that termination of a licence could only be
by a written notice, the appellants further urged in RCA
No.29/2012 that:
"h. Because the respondents itself admitted that the appellant is
in possession of the suit property as mere licensee and the license
is liable to be revoked at any time. But the appellant has not
received any notice from the respondent about the termination of
the license.
RFA(OS)No.85/2014 Page 31
i. Because of without giving the notice the license cannot be
revoked and the respondents threatened to the appellant to
dispossessed from the suit premises forcefully and illegally and the
appellant filed the police complaint for the same."
(iv) In their Written statement in CS(OS) No.3275/2012, the
defendants in para -5 (h) have pleaded that the "Plaintiff‟s, after
the demise of late Shri Ganpat Ram, had been threatening the
defendants to vacate the suit property and have even made attempts
to forcibly dispossess the defendants."
42. In CS No.35/2011, Urmila Devi filed an application for
amendment of prayer clause in the plaint claiming permanent
injunction against Laxman Singh and his siblings on the ground
that Urmila Devi was a licensee in the premises. This application
was dismissed by Ms. Ritu Singh, Civil Judge - 04 by an order
dated 31st May, 2012 holding that the licensor (Laxman Singh) can
revoke the license at any time and the licensee (Urmila Devi) can
raise no objection to the same. The learned Civil Judge in the order
dated 31st May, 2012 has relied on the admission of Urmila Devi
that she was admitted as a licensee in the suit property by Ganpat
Ram. It has further been held that the admitted plea that the other
side was trying to dispossess Urmila Devi tantamounted to
revocation of the license and that, after revocation, a licensee
cannot claim any right in the property certainly in any legally
enforceable right, which was liable to be protected by a decree of
permanent injunction. This order has not been challenged and
RFA(OS)No.85/2014 Page 32
these findings in the order dated 31st May, 2012 have attained
finality. They bind the appellants in the present consideration.
I. Claim over the entire suit property
43. Despite the above claims restricted to half of the suit
property, in the written statement dated 12th March, 2013 filed in
CS(OS)No.3275/2012, the appellants have for the first time set up
the plea of desperation that they had acquired title to the entire suit
property by prescription on account of being in continuous
possession of the same for the last eighteen years to the exclusion
of the plaintiffs‟/respondents. In the same breath, the appellants
have relied on the document purporting to be a Will dated 4th
January, 2010, allegedly executed by late Shri Ganpat Ram. As
preliminary objection no.7 in the written statement dated 12th
March, 2013 filed before the learned Single Judge, the appellants
have set up the following plea :-
".....the defendants had acquired title to the entire suit
property by prescription on account of being in
continuous possession of the same for the past 18 years to
the exclusion of the plaintiffs absolutely, even if the
plaintiffs claim to possession of the suit property on the
basis of succession to the property to the late Shri Ganpat
Ram, then also claim of the plaintiff cannot succeed so
far as the entire property is concerned. The said late Shri
Ganpat Ram had executed a deed of will in favour of the
defendant no. 2. As was urged on behalf of the
defendants before the trial court, the said late Shri
Ganpat Ram was entirely dependent upon the defendants
for moral and physical support in life since the plaintiff
has discarded him as of no use. The defendants were
RFA(OS)No.85/2014 Page 33
taking care of not only the day to day physical needs of
the said late Ganpat Ram in the form of food clothing and
providing other miscellaneous expenses but was also
attending to him during the time when he was in bad
health or required medical attention. The defendants
were the only people that the said late Ganpat Ram was
dependant upon for moral support in his old age in life.
The defendants were living as a family with the said
deceased. The plaintiffs had abandoned the said late
Ganpat Ram. This also constituted the reason that the
said person had executed a deed of will in favour of the
defendants bequeathing half of the property in favour of
the defendants."
(Underlining by us)
The appellants thus also set up two mutually destructive
pleas in the same paragraph of the written statement one of
acquisition of title "by prescription on account of being in
continuous possession", the other plea of acquiring rights under a
"Will". We propose to deal with these pleas at a later part of this
judgment.
What is the effect of the admissions
44. Given the above unequivocal and unconditional admissions
in the pleadings as well as the written statement and documents of
the appellants, in CS(OS)No.3275/2012, could they be used for any
purpose in the CS(OS)No.3275/2012?
45. Inasmuch as the impugned judgment of the learned Single
Judge proceeds on the admissions made by Urmila Devi in the
several pleadings as well as documents filed by the appellants, we
may first and foremost extract the jurisdiction of the court to pass
RFA(OS)No.85/2014 Page 34
judgment thereon under Order XII Rule 6 of the Code of Civil
Procedure which reads as follow:
"6. Judgment on admissions.- (1) Where
admissions of fact have been made either in the
pleading or otherwise, whether orally or in writing,
the court may at any stage of the suit, either on the
application of an party or of its own motion and
without waiting for the determination of any other
question between the parties, make such order or give
such judgment as it may think fit, having regard to
such admissions.
(2) Whenever a judgment is pronounced under sub-
rule (1) a decree shall be drawn up in accordance with
the judgment and the decree shall bear the date on
which the judgment was pronounced."
(Underlining by us)
46. So far as admissions are concerned, they are defined in
Section 17 of the Indian Evidence Act, 1872 which reads as
follows:-
"17. Admission defined.- An admission is a
statement, oral or documentary or contained in
electronic form, which suggests any inference as to
any fact in issue or relevant fact, and which is made
by any of the persons, and under the circumstances,
hereinafter mentioned."
47. In the instant case, admissions in writing on all relevant facts
are contained in the pleadings of Urmila Devi in CS No.35/2011;
the written statement filed in CS(OS)No.3275/2012 as well as the
documents filed by the appellants. How is the court to proceed
RFA(OS)No.85/2014 Page 35
with regard to admitted facts? The answer is found in Section 58
of the Indian Evidence Act, 1872 which reads as follows:
"58. Facts admitted need not be proved. - No fact
need to be proved in any proceeding which the parties
thereto or their agents agree to admit at the hearing, or
which, before the hearing, they agree to admit by any
writing under their hands, or which by any rule of
pleading in force at the time they are deemed to have
admitted by their pleadings:
Provided that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by such
admissions."
48. Light on this question is thrown by the pronouncement of the
Supreme Court reported at (1967) 1 SCR 1 : AIR 1967 SC 341
Basant Singh v. Janki Singh & Ors. wherein the court approved
the explanation of the Bombay High Court in the judgment
reported at AIR 1960 Bombay 153 D.S. Mohite v. S.I. Mohile
noting thus :
"5. The High Court also observed that an admission
in a pleading can be used only for the purpose of the
suit in which the pleading was filed. The
observations of Beaumont, C.J. in Ramabai
Shriniwas v. Bombay Government [ AIR 1941 Bom
144] lend some countenance to this view. But those
observations were commented upon and explained
by the Bombay High Court in D.S. Mohlte v. S.I.
Mohile [AIR 1960 Bom 153]. An admission by a
party in a plaint signed and verified by him in a
prior suit is an admission within the meaning of
Section 17 of the Indian Evidence Act, 1872, and
may be proved against him in other litigations. The
RFA(OS)No.85/2014 Page 36
High Court also relied on the English law of
evidence. In Phipson on Evidence, 10th Edn, Article
741, the English law is thus summarised:
"Pleadings, although admissible in other actions, to
show the institution of the suit and the nature of the
case put forward, are regarded merely as the
suggestion of counsel, and are not receivable
against a party as admissions, unless sworn,
signed, or otherwise adopted by the party himself."
Thus, even under the English law, a statement in a
pleading sworn, signed or otherwise adopted by a
party is admissible against him in other actions. In
Marianski v. Cairns [1 Macq 212 (HL)] the House
of Lords decided that an admission in a pleading
signed by a party was evidence against him in
another suit not only with regard to a different
subject-matter but also against a different
opponent. Moreover, we are not concerned with the
technicalities of the English law. Section 17 of the
Indian Evidence Act, 1872 makes no distinction
between an admission made by a party in a
pleading and other admissions. Under the Indian
law, an admission made by a party in a plaint
signed and verified by him may be used as evidence
against him in other suits. In other suits, this
admission cannot be regarded as conclusive, and it is
open to the party to show that it is not true."
(Underlining by us)
The admissions made by Urmila Devi in CS No.35/2011
would thus bind her in the present case as well.
49. Order XII Rule 6 of the CPC also enables the court at any
stage of the suit to pronounce judgment on an admission made in
the pleadings or otherwise, whether oral or in writing, by the other
side. Reference in this regard can be made to the pronouncement
RFA(OS)No.85/2014 Page 37
reported at ILR (2001) II Delhi 385, Jasmer Singh Sarna & Ors.
v. Electronics Trade and Technology Development Corporation
Ltd.
50. In the judgment of the Division Bench of this court reported
at 104 (2003) DLT 151, Delhi Jal Board v. Surendra P. Malik,
this court had noted that Order XII Rule 6 of the CPC conferred
almost every power on the court to render a speedy judgment in the
suit to save the parties from going through the rigmarole of a
protracted trial. Such judgment has to be passed on admissions of
fact which are clear and unequivocal, unconditional and may relate
to the whole claim or part of it. In para 9, the Division Bench had
laid down the following tests :-
"9. The test, therefore, is (i) whether admissions of
fact arise in the suit, (ii) whether such admissions
are plain, unambiguous and unequivocal, (iii)
whether the defense set up is such that it requires
evidence for determination of the issues and (iv)
whether objections raised against rendering the
judgment are such which go to the root of the matter
or whether these are inconsequential making it
impossible for the party to succeed even if
entertained. It is immaterial at what stage the
judgment is sought or whether admissions of fact are
found expressly in the pleadings or not because such
admissions could be gathered even constructively
for the purpose of rendering a speedy judgment."
It is well settled that a judgment under Order XII Rule 6 of
the CPC can be based on a statement made by the parties de hors
RFA(OS)No.85/2014 Page 38
the pleadings and such admissions could be either express or
constructive.
51. In AIR 1974 MP 75, Shikharchand & Ors. v. Mst. Bari Bai
& Ors., it was held that the court cannot grant relief to the plaintiff
on a case which was not pleaded but in case the defendant himself
put forward such a plea in answer to the plaintiff‟s claim, then the
court can grant such a relief based on the defendant‟s pleading and
admission.
52. In the instant case, the above narrations would show that the
admissions made by Urmila Devi were clear, unambiguous and
unconditional. It is not the stand of the appellants that the
admissions made by Urmila Devi in the suit filed by her or the
appeals noted above were not true or that they were made under
any mistake of fact or law. It is not contended by them that the
admissions were erroneously made. Urmila Devi also does not
contend that she made those admissions under some
misapprehension or under some fear or coercion.
53. In the written statement filed before this court, the appellants
render no explanation for the admissions. No effort is made to
withdraw the same but attempts to set up vague contradictory pleas
have been made in a malafide attempt to perpetuate illegal
occupation of the suit premises. So what is the effect of the
admissions made in pleadings and documents noted above by us?
54. The Supreme Court had occasion also to consider similar
evasive and unspecific pleas in the judgment reported at (2000) 7
SCC 120, Uttam Singh Duggal & Co. v. Union Bank of India &
RFA(OS)No.85/2014 Page 39
Ors. It would be useful to consider the observations of the court in
paras 12 to 14 of this judgment in extenso which read thus :
"12. As to the object of Order 12 Rule 6, we need
not say anything more than what the legislature
itself has said when the said provision came to be
amended. In the Objects and Reasons set out while
amending the said Rule, it is stated that "where a
claim is admitted, the court has jurisdiction to enter
a judgment for the plaintiff and to pass a decree on
admitted claim. The object of the Rule is to enable
the party to obtain a speedy judgment at least to the
extent of the relief to which according to the
admission of the defendant, the plaintiff is entitled".
We should not unduly narrow down the meaning of
this Rule as the object is to enable a party to obtain
speedy judgment. Where the other party has made a
plain admission entitling the former to succeed, it
should apply and also wherever there is a clear
admission of facts in the face of which it is
impossible for the party making such admission to
succeed.
13. The next contention canvassed is that the
resolutions or minutes of meeting of the Board of
Directors, resolution passed thereon and the letter
sending the said resolution to the respondent bank
cannot amount to a pleading or come within the
scope of the Rule as such statements are not made in
the course of the pleadings or otherwise. When a
statement is made to a party and such statement is
brought before the Court showing admission of
liability by an application filed under Order XII,
Rule 6 and the other side has sufficient opportunity
to explain the said admission and if such
Explanation is not accepted by the Court, we do not
think the trial Court is helpless in refusing to pass a
decree. We have adverted to the basis of the claim
and the manner in which the trial Court has dealt
RFA(OS)No.85/2014 Page 40
with the same. When the trial Judge states that the
statement made in the proceedings of the Board of
Directors meeting and the letter sent as well as the
pleadings when read together, leads to unambiguous
and clear admission with only the extent to which
the admission is made is in dispute, and the Court
had a duty to decide the same and grant a decree, we
think this approach is unexceptionable.
14. Before the trial Judge, there was no pleading
much less an Explanation as to the circumstances in
which the said admission was made, so as to take it
out of the category of admissions which created a
liability. on the other hand, what is stated in the
course of the pleadings, in answer to the application
filed under Order 12 Rule 6 CPC, the stand is clearly
to the contrary. Statements had been made in the
course of the minutes of the Board of Directors'
meeting held on 30.5.1990 which we have already
adverted to in detail. in the pleadings raised before
the Court, there is a clear statement made by the
respondent as to the undisputed part of the claim
made by them. In regard to this aspect of
communicating the resolution dated 30.5.1990 in the
letter dated 4.6.1990 what is stated in the affidavit-
in-opposition in application under Order 12 Rule 6
CPC is save what are matters on record and save
what would appear from the letter (sic resolution)
dated 30.5.1990 all allegations to the contrary are
disputed and denied. This averment would clearly
mean that the petitioner does not deny a word of
what was recorded therein and what is denied is the
allegation to the contrary. The denial is evasive and
the learned Judge is perfectly justified in holding
that there is an unequivocal admission of the
contents of the documents and what is denied is
extent of the admission but the increase in the
liability is admitted."
(Underlining supplied)
RFA(OS)No.85/2014 Page 41
Therefore, evasive and unspecific denials or vague
contradictory pleas are of no consequence given the unequivocal
admissions in the pleadings and the documents relied upon by the
appellants.
55. In the judgment of the Supreme Court reported at (2005) 11
SCC 279 Charanjit Lal Mehra & Ors. v. Kamal Saroj Mahajan
(Smt.) & Anr., the Supreme Court had held that whether there is
any admission on the part of the defendant can be inferred from the
facts and circumstances of the case without any dispute, even then
in order to expedite and dispose of the case, such an admission can
be acted upon. The court noticed that the spirit, intendment and
purpose of the legislation was to enable the party to obtain a speedy
judgment at least to the extent of the relief to which, according to
the admissions of the defendant, the plaintiff is entitled.
56. In order to invoke the provisions of Order XII Rule 6 of the
CPC the court has to scrutinize the pleadings in their detail. The
court is also required to ignore vague, evasive and unspecific
denials and inconsistent pleas in the written statement and replies.
Even a contrary stand taken while arguing the matter would require
to be ignored. (Re : AIR 2003 Delhi 142, Rajiv Saluja v. Bhartia
Industries Ltd. and Anr.; AIR 2004 Delhi 248 (DB), Rajiv
Sharma and Anr. v. Rajiv Gupta).
57. The findings of the learned Civil Judge in the judgment
dated 31st May, 2012 with regard to ownership, the nature of
RFA(OS)No.85/2014 Page 42
occupation being that of a licensee as well as termination of license
have attained finality. The admissions are also made in the joint
written statement and supported by documents filed by the
appellants on the suit record. The ownership of the
plaintiffs/respondents has been repeatedly admitted in the written
statement as well as in the documents filed before the learned
Single Judge. The appellants have also admitted the fact that
Urmila Devi was inducted as a licensee.
58. These admissions thus bind them in the present suit and
would enable the court at any stage of the suit to pronounce the
judgment based thereon.
59. It needs no elaboration that while construing an admission,
there is no requirement in law that the defendant must state that the
plaint is correct. Admissions may be explicit or can be construed.
In the case in hand, the admissions are, in fact unconditional,
unequivocal and clear. They are contained in pleadings in previous
litigation, the written statement of the defendants/appellants as well
as documents filed and relied upon by them.
By virtue of Section 58 of the Indian Evidence Act, in view
of the admissions of these facts, no proof thereof was required. In
this view of the matter and given the above extracted clear
admissions by the appellants, so far as the relief of possession is
concerned, no triable issue arose for adjudication and the learned
Single Judge therefore, had a duty to proceed to judgment.
60. We may also note the observations of the learned Single
Judge that the appellants have set up a frivolous and vexatious
RFA(OS)No.85/2014 Page 43
defence for the purposes of prolonging their illegal occupancy of
the suit property. It was noted that in the plaint dated 22nd
February, 2011 in CS No.35/2011, Urmila Devi makes not a
whisper of a pleading to suggest execution of any Will by late Shri
Ganpat Ram bequeathing part of the suit property in her favour. In
the plaint, she set up a plea that late Shri Ganpat Ram "donated"
half share of the suit property in her favour.
61. As noted above, according to the appellants, Ganpat Ram
became owner of half of the suit property upon intestate demise of
his son Bhagat Ram. It is for the first time that in the replication
that she propounded an alleged Will claiming that it was executed
by Sh. Ganpat Ram in favour of Urmila Devi.
62. We have noted that Bhagat Ram's mother Hukam Kaur is
alive even on date and that she would have succeeded to the share
of her son as his Class I legal heir. Upon death of Bhagat Ram,
Late Shri Ganpat Ram, therefore, acquired no title in the suit
property. The appellants therefore, were unmindful of the fact that
Late Shri Ganpat Ram, as father of deceased Shri Bhagat Ram, was
not his class I heir and therefore, he himself had no right, title or
interest in the suit property which he could bequeath. The findings
of the learned Civil Judge to this effect have long attained finality.
It has thus been rightly held by the learned Single Judge that,
therefore, Late Ganpat Ram could not have donated or bequeathed
any portion of the suit property.
RFA(OS)No.85/2014 Page 44
Plea of ownership by adverse possession
63. Before us, learned counsel for the appellants would orally
press that the appellants have perfected title to the suit property by
adverse possession. No such oral plea is permissible. Even if it
were permissible, it is necessary to understand the essential
ingredients of adverse possession, including the pleadings
necessary to support the same as well as the onus and burden of
proof thereof.
64. In the judgment reported at (1997) 7 SCC 567, D.N.
Venkatarayappa & Anr. v. State of Karnataka & Ors., the
Supreme Court held thus:
"3. xxx xxx xxx in the absence of crucial pleadings,
which constitute adverse possession and evidence to
show that the petitioners have been in continuous and
uninterrupted possession of the lands in question
claiming right, title and interest in the lands in question
hostile to the right, title and interest of the original
grantees, the petitioners cannot claim that they have
perfected their title by adverse possession xxx xxx xxx"
65. The appellants have accepted the title of Bhagat Ram and
Laxman Singh to the suit property. They rely on the alleged Will
executed by Late Shri Ganpat Ram on the 4 th of January 2010
whereby bequest of 50% of the property was allegedly made by him
in favour of the appellant Urmila Devi. This Will also mentions
Bhagat Ram and Laxman Singh as the owners of the suit property.
Therefore, it is the case of the appellants themselves that they had
no right to any portion of the suit premises till 2010. There is
RFA(OS)No.85/2014 Page 45
nothing on record to show that they ever asserted the title hostile to
that of the real owner. Additionally, the appellants admit that they
were never in exclusive possession of the suit property but were
living in the premises as a licensee of Shri Ganpat Ram till his
death in August 2010. They therefore, also never had exclusive
possession to any portion of the suit property.
66. It is well settled that continuous occupation of a licensee
(even after its termination) does not enable him to claim title by
adverse possession. In this regard, in a Division Bench
pronouncement reported at MANU/DE/0546/2005, Shahabuddin v.
State of U.P., it was held thus:
"26. A person claiming title by adverse possession has
to show that he has asserted hostile title as well as done
some overt act to assert such claim. Even mere
continuance of unauthorised possession by licensee
after termination of license for more than 12 years does
not enable a licensee to claim title by adverse
possession. Ouster of the real owner does not mean actual
driving out of the co-sharers from the property. In any
case, it will, however, not be complete unless it is
coupled with all other ingredients required to constitute
adverse possession.
xxx xxx xxx
28. A claim of adverse possession being a hostile
assertion involving expressly or impliedly in denial of
title of the real owner, the burden is always on the person
who asserts such a claim to plead and prove by clear and
unequivocal evidence that his possession was hostile to
the real owner and in deciding such a case the Court must
have regard to the animus of the person doing such.
xxx xxx xxx
30. Actual possession without the required animus
militates against the claim of title based on adverse
RFA(OS)No.85/2014 Page 46
possession. Thus, mere unlawful possession does not
mean adverse possession. A trespasser's possession is
adverse to the true owner only when the adverseness of
the trespasser's claim is within an owner's knowledge.
There must be on the part of the trespasser, an expressed
or implied denial of title of a true owner and animus of
exclusive ownership. (Ref. : AIR1976 Ori 218 entitled
Basanti Dei v. Bijayakrushna Patnaik and Ors.)
31. So far as property of the State is concerned, the
question of a person claiming adverse possession requires
to be considered most seriously inasmuch as it ultimately
involves destruction of right and title of the State to
immovable property conferring upon a third party an
encroacher, a title where, he had none. In order to
substantiate such a claim of adverse possession, the
ingredients of open, hostile and continuous/possession
with the required animus should be proved for a
continuous period of 30 years.
xxx xxx xxx
59. Person pleading adverse possession has no equities in
his favor. 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. In this
behalf, reference may be made to the judgment reported
at AIR 1996 SC 869 entitled Dr. Mahesh Chand Sharma
v. Smt. Raj Kumari Sharma. Para 36 thereof reads as
under:-
"36. In this connection, we may emphasise that a
person pleading adverse possession has no equities
in his favor. Since he is trying to defeat the rights
of the true owner, it is for him to clearly plead and
establish all the facts necessary to establish his
adverse possession. For all the above reasons, the
plea of limitation put forward by the appellant or
by defendants 2 to 4 as the case may be, is
rejected."
(Emphasis supplied)
RFA(OS)No.85/2014 Page 47
67. So far as the essential pleadings and evidence to support a
claim of acquisition of title by adverse possession is concerned, we
may usefully refer to the pronouncement of the Supreme Court
reported at (1997) 2 SCC 203, Madhvakrishna & Anr. v. Chandra
Bhaga & Ors. wherein it was held thus :
"5. In this case, except repeating the title already set up
but which was negative in the earlier suit, namely, that
they had constructed the house jointly with Mansaram,
there is no specific plea of disclaiming the title of the
appellants from a particular date, the hostile assertion
thereof and then of setting up adverse possession from a
particular date to the knowledge of the appellants and of
their acquiescence. Under these circumstances, unless the
title is disclaimed and adverse possession with hostile
title to that of the Mansaram and subsequently as
against the appellant is pleaded and proved, the plea of
adverse possession cannot be held proved. In this case,
such a plea was not averred nor evidence has been
adduced. The doctrine of adverse possession would arise
only when the party has set up his own adverse title
disclaiming the title of the plaintiff and established that
he remained exclusively in possession to the knowledge
of the appellant's title hostile to their title and that the
appellant had acquiesced to the same."
(Emphasis supplied)
68. We may also note the nature of pleadings and evidence
necessary so far as claim of adverse possession against the State is
concerned. The legal position on this issue was summed up by this
court in MANU/DE/0546/2005, Shahabuddin v. State of U.P. in
the following terms :
RFA(OS)No.85/2014 Page 48
"32. When the property was a vacant land before the
alleged construction has been put up, to show open and
hostile possession which could alone in law constitutes
adverse possession to the State, some concrete details of
the date of absolute and exclusive occupation, nature of
occupation with proof thereof would be absolutely
necessary and a mere bald assertions cannot by
themselves be a substitute for concrete proof required of
open and hostile possession. The person claiming
adverse possession as against the State must disclaim
the State's title and plead this hostile claim to the
knowledge of the State and that the State had not taken
any action within the prescribed period. It is only in such
circumstances that the possession would become adverse.
The pleadings and proof have to be clear and cogent.
(Ref. MANU/SC/0805/1995: (1995) 6 SCC 309. R.
Changevarappa v. State of Karnataka : AIR 1997 SC
2930 D.L. D.N. Venkatarayappa and Anr. v. State of
Karnataka and Ors. and (2000) 5 SCC 652 entitled State
of Rajasthan v. Harphool Singh (dead) the rough his
LRs.)
xxx xxx xxx
35. In the light of the above, it is apparent that both
pleadings and the evidence has to be clear, unequivocal
and specific as to on what date and even in which
month the property was occupied and the date of the
dispossession of the real owner. All questions relating to
the date and nature of a person's possession whether
the factum of his possession was known to the owner
and the legal claimants and the duration for which such
possession has continued and also the question whether
the possession was open and undisturbed are all
questions of facts and have to be asserted and proved.
The attributes of adverse possession is that it begins
with dissension or ouster of the owner. It remains an
"inchoate" title or a growing title till expiration of the
statutory period of its continuous open and hostile
RFA(OS)No.85/2014 Page 49
assertion and enjoyment. Before title of adverse
possession is perfected, all presumptions and intendments
are in favor of the real owner. Burden of proving adverse
possession is a very heavy one. No court can take
the plea of acquisition of title by adverse possession
casually and it is settled law that much importance
should not be attached to the mere evidence of witnesses
who casually and cavalierly simple deposed that the
land was in possession of somebody and/or another.
Mere oral evidence may not be sufficient to substantiate
a claim of adverse possession. The party who so pleads
must show something more than that. In this behalf,
reference may be made to the observations made in AIR
1921 Pat 234 entitled Gajadhar Prasad and Ors. v.
Musamad Dulhin Gulab Kuer and Ors."
(Emphasis supplied)
69. Reference may also be made to the pronouncement of the
Supreme Court reported at (2007) 6 SCC 59, P.T. Munichikkanna
Reddy & Ors. v. Revamma & Ors. wherein placing reliance on the
earlier pronouncement in AIR 1964 SC 1254, S.M. Karim v. Bibi
Sakina, it was held thus:
"2. Inquiry into the particulars of adverse possession
31. Inquiry into the starting point of adverse possession
i.e. dates as to when the paper-owner got dispossessed is
an important aspect to be considered. In the instant case
the starting point of adverse possession and other facts
such as the manner in which the possession
operationalised, nature of possession: whether open,
continuous, uninterrupted or hostile possession, have not
been disclosed. An observation has been made in this
regard in S.M. Karim v. Bibi Sakina [AIR 1964 SC
1254]: (AIR p. 1256, para 5)
"Adverse possession must be adequate in
continuity, in publicity and extent and a plea is
required at the least to show when possession
RFA(OS)No.85/2014 Page 50
becomes adverse so that the starting point of
limitation against the party affected can be found.
There is no evidence here when possession became
adverse, if it at all did, and a mere suggestion in the
relief clause that there was an uninterrupted
possession for „several 12 years‟ or that the
plaintiff had acquired „an absolute title‟ was not
enough to raise such a plea. Long possession is not
necessarily adverse possession and the prayer
clause is not a substitute for a plea."
(emphasis supplied)
32. Also mention as to the real owner of the property
must be specifically made in an adverse possession
claim."
(Emphasis by us)
70. On the same aspect, in (2004) 10 SCC 779, Karnataka
Board of Wakf v. Government of India & Ors., the court held thus:
"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.
RFA(OS)No.85/2014 Page 51
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."
(Emphasis by us)
71. In (2007) 6 SCC 59, P.T. Munichikkanna Reddy & Ors. v.
Revamma & Ors., reliance was also placed on the pronouncement
of the Supreme Court reported at (2005) 8 SCC 330, Saroop
Singh v. Banto & Ors. wherein it was held thus:
"30. „Animus possidendi‟ is one of the ingredients of
adverse possession. Unless the person possessing the land
has a requisite animus the period for prescription does not
commence. As in the instant case, the appellant
categorically states that his possession is not adverse as
that of true owner, the logical corollary is that he did not
have the requisite animus. (See: Mohd. Mohd.
Aliv. Jagadish Kalita [(2004) 1 SCC 271], SCC para
21.)"
72. In a pronouncement of the Supreme Court reported at (2006)
7 SCC 570, T. Anjanappa & Ors. v. Somalingappa & Anr., it was
held thus:
RFA(OS)No.85/2014 Page 52
"14. Adverse possession is that form of possession or
occupancy of land which is inconsistent with the title of
the rightful owner and tends to extinguish that person's
title. Possession is not held to be adverse if it can be
referred to a lawful title. The person setting up adverse
possession may have been holding under the rightful
owner's title e.g. trustees, guardians, bailiffs or agents.
Such persons cannot set up adverse possession:
"14. ... Adverse possession means a [hostile
possession] which is expressly or impliedly in
denial of title of the true owner. Under Article 65
[of the Limitation Act,] burden is on the defendants
to prove affirmatively. A person who bases his
title on adverse possession must show by clear
and unequivocal evidence i.e. possession was
hostile to the real owner and amounted to a
denial of his title to the property claimed. In
deciding whether the acts, alleged by a person,
constitute adverse possession, regard must be had
to the animus of the person doing those acts which
must be ascertained from the facts and
circumstances of each case. The person who bases
his title on adverse possession, therefore, must
show by clear and unequivocal evidence i.e.
possession was hostile to the real owner and
amounted to a denial of his title to the property
claimed. ...
15. Where possession can be referred to a lawful
title, it will not be considered to be adverse. The
reason being that a person whose possession can be
referred to a lawful title will not be permitted to
show that his possession was hostile to another's
title. One who holds possession on behalf of
another, does not by mere denial of that other's title
make his possession adverse so as to give himself
the benefit of the statute of limitation. Therefore, a
person who enters into possession having a lawful
title, cannot divest another of that title by
RFA(OS)No.85/2014 Page 53
pretending that he had no title at all. (See :
Annasaheb Bapusaheb Patil v. Balwant [(1995) 2
SCC 543, p. 554 : AIR 1995 SC 895, p. 902] , SCC
p. 554, paras 14-15.)
xxx xxx xxx
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."
(Emphasis by us)
73. In the instant case, the appellants have asserted lawful entry
into the suit premises and have set up contradictory claims of
acquisition of title („prescription‟/„donation‟/„bequest‟). In this
regard, the relevant portion of the pronouncement of the Supreme
Court reported at (2009) 13 SCC 229, L.N. Aswathama & Anr. v.
P. Prakash may usefully be extracted which reads as follows:
"16. The plaintiffs contended that the plea of adverse
possession put forth by the defendant should fail in view
of the inconsistent stands taken by the defendant. It is
pointed out that the defendant had specifically
contended that he was the tenant of the schedule
property from 1962 until he purchased the property on
RFA(OS)No.85/2014 Page 54
18-11-1985. According to the plaintiffs, this was a case
of permissive possession and not adverse possession. It
is submitted that the defendant having put forth a case of
permissive possession, cannot put forth a plea of
adverse possession. It was submitted that even assuming
that there was a long and continuous possession for
more than 12 years, that by itself would not constitute
adverse possession if it was either permissive
possession or possession without animus possidendi.
According to them, the two pleas being mutually
inconsistent, the latter plea could not even begin to
operate until the former was renounced. Reliance was
placed on the following observations of this Court
in Mohan Lal v. Mirza Abdul Gaffar [(1996) 1 SCC
639] made while considering a case where the
defendant raised the pleas of permissive possession
and adverse possession: (SCC pp. 640-41, para 4)
"4. As regards the first plea, it is inconsistent
with the second plea. Having come into
possession under the [sale] agreement, he must
disclaim his right thereunder and plead and
prove assertion of his independent hostile
adverse possession to the knowledge of the
transferor or his successor-in-title or interest
and that the latter had acquiesced to his illegal
possession during the entire period of 12 years
i.e. up to completing the period of his title by
prescription nec vi, nec clam, nec precario [not
by violence, not by stealth, not by permission].
Since the appellant's claim is founded on Section
53-A [of the Transfer of Property Act, 1882], it
goes without saying that he admits by implication
that he came into possession of the land lawfully
under the agreement and continued to remain in
possession till date of the suit. Thereby the plea
of adverse possession is not available to the
appellant."
(emphasis supplied)
RFA(OS)No.85/2014 Page 55
17. The legal position is no doubt well settled. To
establish a claim of title by prescription, that is,
adverse possession for 12 years or more, the
possession of the claimant must be
physical/actual, exclusive, open, uninterrupted,
notorious and hostile to the true owner for a
period exceeding twelve years. It is also well
settled that long and continuous possession by
itself would not constitute adverse possession if
it was either permissive possession or possession
without animus possidendi. The pleas based on
title and adverse possession are mutually
inconsistent and the latter does not begin to
operate until the former is renounced. Unless the
person possessing the property has the requisite
animus to possess the property hostile to the title
of the true owner, the period for prescription will
not commence. (Vide P. Periasami v. P.
Periathambi [(1995) 6 SCC 523] , Md.
Mohammad Ali v. Jagadish Kalita [(2004) 1 SCC
271] and P.T. Munichikkanna
Reddy v. Revamma [(2007) 6 SCC 59].)"
(Emphasis by us)
74. The appellants have never asserted acquisition of title. They
did not do so even in CS No.35/2011. They do not state the date
on which they entered the property or when their occupation
became hostile to the real owner. Conflicting claims of ownership
have been set up as also entitlement to only half of the property
without stating what constitutes 50% portion of the property over
which they are claiming possession as has been noticed by the
learned Civil Judge.
RFA(OS)No.85/2014 Page 56
75. Reference may also be made to the Division Bench
pronouncement of this court reported at 2011 SCC OnLine Del
1313 : 2011 (3) ILR (Del) 318, Rustam Decd Thr. LRs v. Jamia
Milia Islamia University & Ors. relevant portion of which is
reproduced hereunder:
"7. The ethos of the impugned judgment is that
claim for adverse possession or title by prescription
is established only when the claimant is in actual
physical possession, exclusive, open, uninterrupted,
notorious and hostile to the true owner for a period
exceeding 12 years. Mere long and continuous
possession by itself does not constitute adverse
possession, if it is either permissive possession or
possession without possendendi. Relying upon the
judgment reported as JT 2009 (9) SC 527
Lnaswathama v. P. Prakash, the learned Single
Judge has held that unless person in possession
shows requisite animus to possess the property,
hostile to the title of the owner, period of
prescription does not commence.
xxx xxx xxx
12. It strikes the reader that the pleas required to be
advanced as per the decision reported as 2004 (10)
SCC 779Karnataka Board of Wakf v. Government
of India are wanting and thus the appellants are
liable to be non-suited on said count alone. Suffice
would it be to state that evidence sans a plea is
meaningless. The principle of law prohibiting
variance between pleading and proof compels us to
do so."
(Emphasis supplied)
The position in the present case is the same.
RFA(OS)No.85/2014 Page 57
76. In AIR 1984 SC 930, Gaya Parshad Dikshit v. Dr. Nirmal
Chander & Anr., it was held that mere termination of the licence
of a licencee does not enable the licencee to claim adverse
possession, unless and until he sets up a title hostile to that of the
licensor after termination of his licence. It is not merely
unauthorized possession on termination of his licence that
enables the licensee to claim title by adverse possession, but
there must be some overt act on the part of the licencee to show
that he is claiming adverse possession. Mere continuance of
unauthorized possession even for a period of more than 12 years
is not enough.
77. In AIR 1954 SC 758, Sheodhari Rai & Ors. v. Suraj
Prasad Singh & Ors., it was held that permissive possession
cannot be treated as adverse possession till the defendant asserts
an adverse possession.
78. In AIR 1995 SC 895, Annasaheb Bapusaheb Patil & Ors.
v. Balwant @ Balasaheb Babusaheb Patil (dead) by LRs &
heirs, etc., it was held by the Supreme Court that adverse
possession means a hostile assertion, i.e., a possession which is
expressly or impliedly in denial of the title of the true owner and
held that under Article 65 of the Limitation Act, 1963, the
burden is on the defendants to prove affirmatively.
79. In AIR 1995 SC 73, Thakur Kishan Singh (dead) v.
Arvind Kumar, it was held that where the possession was
initially permissive, the burden was heavy on the appellant to
RFA(OS)No.85/2014 Page 58
establish that it became adverse. Mere possession for howsoever
length of time does not result in converting permissive
possession into adverse possession.
80. Mr. Raman Gandhi, learned counsel for the appellants has
relied on the judgment of the Supreme Court reported at (2006) 7
SCC 570, T. Anjanappa & Ors. v. Somalingappa & Anr. in
support of his submission that the appellants in hand would be
deemed to be in adverse possession since inception of the
occupation. A unique proposition is thus propounded by learned
counsel for the appellants which is not supported by the judicial
precedent relied upon. In fact, in this judgment, the Supreme Court
has rejected such a plea overturning the decision of the High Court
to the contrary. In paras 16 and 17, the court stated thus:
"16. 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.
RFA(OS)No.85/2014 Page 59
17. The High Court has erred in holding that even if
the defendants claim adverse possession, they do not
have to prove who is the true owner and even if they
had believed that the Government was the true
owner and not the plaintiffs, the same was
inconsequential. Obviously, the requirements of
proving adverse possession have not been
established. If the defendants are not sure who is the
true owner the question of their being in hostile
possession and the question of denying title of the
true owner do not arise. ..."
(Emphasis supplied)
In the present case as well, after admitting the title of the
respondents, the appellants have tried to suggest that Ganpat Ram
was the owner or that the government was the true owner of the
property whereas, acquisition of title by adverse possession is
being pressed against the respondents. On application of the
principles laid down in this judgment as well, the appellants have
failed to establish that they acquired title of the property by adverse
possession.
81. In the present case, the appellants give no date on which they
came to occupy any portion of the property. They admit the title of
Bhagat Ram and Laxman Singh to the suit property. It is also their
case that till his death on 16th August, 2010, Ganpat Ram was
residing in the property and the appellants were residing with him.
It is also an admitted position that the appellants have never made a
claim of acquisition of title by adverse possession of the suit
property. They never asserted a title hostile to that of the real
RFA(OS)No.85/2014 Page 60
owners. It is well settled that a claim of title by adverse possession
cannot be made for the first time in court.
82. So far as the right premised on occupation by prescription is
concerned, the order dated 16th August, 2011 passed by the learned
Civil Judge dismissing Urmila Devi's injunction application had
held that "prescription only related to the right to use the property
of another i.e. consistent with the rights of the owner". It did not
entail creation of title over the property as opposed to adverse
possession. The appellants therefore could not have acquired title
merely on the basis of their plea of prescription extending over
eighteen years over the suit property.
83. No plea of acquisition of title by adverse possession has been
set up. The appellants have not pleaded even the basic ingredients
of adverse possession. No date, even year, on which the appellants
came to occupy the suit property has been pleaded. No date on
which their possession became adverse to that of the real owners
has also been pleaded. In fact, the appellants have never claimed to
be owners of the suit property or asserted title to the suit property.
84. The appellants have also asserted induction into the
property as a licencee which was permissible in nature. Such an
occupant cannot claim perfection of title by adverse possession.
85. As is evident from the above extract of their pleadings and
the above discussion, the appellants never had exclusive
occupation of the suit premises inasmuch as it is their case that they
were residing with Late Shri Ganpat Ram till his death on 21st
RFA(OS)No.85/2014 Page 61
August, 2010, who according to the appellants was the owner of
the property.
86. By the order dated 31st May, 2012 the learned Civil Judge in
CS No. 35/2011 has noted that according to Urmila Devi, Shri
Ganpat Ram was residing with Smt. Urmila Devi and her family
and that according to her, he died in the suit premises on 20th
October, 2010. The learned Judge has thereupon returned a
categorical finding that the possession of the appellant was neither
exclusive nor hostile. This finding has attained finality.
87. Even in the written statement filed before the learned Single
Judge in CS(OS) No.3275/2012, the plaintiff admits induction into
the premises by Late Shri Ganpat Ram with whom the appellants
claim joint occupation. Contradictory pleas of ownership based on
a plea of prescription and occupancy of the premises for more than
eighteen years and under a testamentary bequest made by Late Shri
Ganpat Ram have been made. Finally, despite admissions of every
relevant fact, a plea of desperation urging that the respondents had
no title to the property and that Ganpat Ram was a trespasser has
been raised for the first time in the written statement in the present
suit has been taken.
88. Mr. Saurabh Tiwari, learned counsel for the respondents has
also urged that the pleas of the appellant of being in occupation as
a licensee and the contention of having acquired title by adverse
possession are mutually destructive pleas which are impermissible.
In this regard, reliance is placed on the pronouncement in (2009) 9
SCC 713, Vimal Chandghevar Jain v. Ramakant Eknath Jadu
RFA(OS)No.85/2014 Page 62
wherein in para 25, it was held that "pleadings of the parties, it is
trite, are required to be read as a whole. The defendants, although
are entitled to raise alternative and inconsistent plea but should
not be permitted to raise pleas which are mutually destructive of
each other".
89. It is noteworthy that the plaint in CS No.35/2011 came to be
rejected by an order dated 31st May, 2012 by the learned Civil
Judge. Against this judgment, an appeal being RCA No.29/2012
was filed on 22nd August, 2012 by Urmila Devi. At point „P‟ of
the appeal, Urmila Devi repeats that "because of the title of the suit
is in favour of Laxman and Bhagat and Bhagat was expired about
20 years ago and Laxman is mentally disturb and not executed any
documents in favour of the other respondent." The appellant has
even on 22nd August, 2012 unequivocally admitted the title of
Laxman Singh and his brother Bhagat Singh.
90. In the present suit, on 5th April, 2013, the appellants have
also filed on record eleven bills/notices issued by BSES Rajdhani
Power Limited in the name of Laxman Singh in respect of the suit
property dated 24th January, 2010, 22nd March, 2010, 25th July,
2010, 24th September, 2010, 14th October, 2010, 24th November,
2010, 17th January, 2011, 15th November, 2011, 5th May, 2012, 29th
June, 2012, 30th August, 2012 and 28th December, 2012) raising
demands for payment in connection with the electricity. These
documents contain the admission by both the appellants of the
rights and interest of Laxman Singh in the suit property.
RFA(OS)No.85/2014 Page 63
91. The appellants have relied upon an electoral roll for the year
2013 which shows them resident of House No.D/2/39, Gali No.2,
Block - D, Sangam Vihar, New Delhi. This would suggest that the
appellants are not residing at the suit property but have some other
property in Sangam Vihar.
92. It is noteworthy that in the oral plea and submissions
thereon made before this court, the appellants have asserted
perfection of title by adverse possession against the respondents
herein. In pressing this plea, there is an inherent admission that
the respondents are the real owners of the suit property.
93. Coupled with the unequivocal admission of title of the
respondents by the appellants; the reliance on "donation" in one
place and "bequest" in another, of half of the suit property by
Ganpat Ram in favour of the appellant Urmila Devi, also render
false and inconsequential the plea of acquisition of title by adverse
possession taken by the appellants for the first time in the oral
arguments in the present appeal.
Denial of title of respondents
94. In the written statement before the learned Single Judge, a
half baked plea that the property was owned by the Government
has been set up. No details of the government which owns the
property or document to support the same are filed on record.
This plea also completely demolishes any claim of acquisition of
title by adverse possession as the appellants do not claim assertion
of title ever against any government.
RFA(OS)No.85/2014 Page 64
95. Furthermore, the appellants have raised the claim of adverse
possession on occupancy of 18 years. As per Article 65 of the
Schedule of the Limitation Act, so far as claim of adverse
possession against the State is concerned, the same could be
premised on exclusive and absolute possession of 30 years. The
appellants do not claim occupancy of thirty years. Therefore, the
effort to cloud the title of the respondents is really an arrow shot in
the dark by the appellants.
96. This vague and unsupported plea is completely belied when
tested against the clear admissions of title made by Urmila Devi.
97. The learned Single Judge has additionally relied on Section
116 of the Evidence Act which clearly states that "no person who
came upon in immoveable property by the license of the person in
possession thereof, shall be permitted to deny that such person had
a title to such possession at the time when license was given".
Placing reliance on the pronouncements of the Supreme Court
reported at (2006) 3 SCC 91, Bansraj Laltaprasad Mishra v.
Stanley Parker Jones; (2002) 7 SCC 505, Sri S.K. Sarma v.
Mahesh Kumar Verma ; 2006 (130) DLT 667, Vishal Builders
Pvt. Ltd. v. Delhi Development Authority & Ors. and; 2006 (130)
DLT 120, Desh Raj Singh v. Triveni Engineering & Ndustries
Ltd. & Anr., the learned Single Judge has concluded that no person
who comes into possession of immoveable property on the basis of
license or permission of the person in possession thereof can be
permitted to deny that such person had a title to such property
when such license was given. As a consequence, the appellants
RFA(OS)No.85/2014 Page 65
who admit that they were permitted to suit property as a licensee by
Shri Ganpat Ram, cannot challenge his title eighteen years after
they were so inducted.
98. In Bansraj Laltaprasad Mishra, the Supreme Court had
discussed the policy of Section 116 and the principle on which it
was premised in the following terms:
"12. The "possession" in the instant case relates to the
second limb of the section. It is couched in negative
terms and mandates that a person who comes upon any
immovable property by the licence of the person in
possession thereof, shall not be permitted to deny that
such person had title to such possession at the time when
such licence was given.
13. The underlying policy of Section 116 is that where a
person has been brought into possession as a tenant by
the landlord and if that tenant is permitted to question the
title of the landlord at the time of the settlement, then that
will give rise to extreme confusion in the matter of
relationship of the landlord and tenant and so the
equitable principle of estoppel has been incorporated by
the legislature in the said section.
14. The principle of estoppel arising from the contract of
tenancy is based upon a healthy and salutary principle of
law and justice that a tenant who could not have got
possession but for his contract of tenancy admitting the
right of the landlord should not be allowed to launch his
landlord in some inequitable situation taking undue
advantage of the possession that he got and any probable
defect in the title of his landlord. It is on account of such
a contract of tenancy and as a result of the tenant's entry
into possession on the admission of the landlord's title
that the principle of estoppel is attracted.
15. Section 116 enumerates the principle of estoppel
which is merely an extension of the principle that no
RFA(OS)No.85/2014 Page 66
person is allowed to approbate and reprobate at the same
time.
16. As laid down by the Privy Council in Kumar Krishna
Prosad Lal Singha Deov. Baraboni Coal Concern
Ltd. [64 IA 311 : AIR 1937 PC 251] : (IA p. 318)
"It [Section 116] deals with one cardinal and
simple estoppel, and states it first as applicable
between landlord and tenant and then as between
licensor and licensee, a distinction which
corresponds to that between the parties to an action
for rent and the parties to an action for use and
occupation."
17. Obviously, the stress is on the possession of the
person who is in possession of the immovable property.
Unfortunately, the Division Bench has not addressed
itself to this question which according to us was the core
question.
18. The Division Bench erroneously laid stress on title as
indicated above which has no relevance in the
background of what is stated in Section 116 of the
Evidence Act. The Division Bench disposed of the matter
without even discussing as to why the learned Single
Judge was not justified in the conclusions arrived at.
Therefore, we remand the matter to the Division Bench
for fresh hearing and disposal. However, we make it clear
that we have not expressed any final opinion on the
merits of the case. As the matter is pending since long,
we request the High Court to dispose of the matter within
three months. The interim order passed in this appeal
shall continue till the disposal of the matter by the High
Court."
(Underlining by us)
99. Mr. Raman Gandhi, learned counsel for the appellants has
placed reliance on the pronouncement of the Supreme Court
reported at AIR 1987 SC 2192, D. Satyanarayana v. P. Jagadish,
RFA(OS)No.85/2014 Page 67
in support of his contention that Section 116 of the Evidence Act
has no application to the instant case. This judgment has no
application to the present case as it involved an issue of a notice of
eviction being served by the paramount title holder of the premises
on the sub-tenant. The sub-tenant had attorned in favour of the
paramount title holder and stopped paying rent to the tenant who
had inducted him in the premises. It was held that Section 116
would have an application in support of the tenant who filed an
eviction petition against a sub-tenant in the given facts. There is no
parity between this case and the facts in the present case.
A similar view was taken by the Supreme Court in the case
reported at AIR 2002 SC 3294, Sh. S.K. Sarma v. Mahesh Kumar
Verma.
100. Before us as well, the appellants have attempted to confuse
the issue by referring to „title‟ as if it was synonymous with
„possession‟ which is clearly not permissible given their clear stand
that Urmila Devi was inducted as a licensee in the suit property by
Late Shri Ganpat Ram who was admittedly himself a licencee of
his sons. It is their case that Ganpat Ram did so as he treated her
like a daughter.
101. The judgment of the Supreme Court in (2012) 1 SCC 656,
Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana & Anr.
has prospective effect and cannot affect transactions already
effected. The reliance thereon to challenge title is misconceived.
102. So far as the objection to the documents is concerned,
learned counsel for the respondent has placed reliance on the
RFA(OS)No.85/2014 Page 68
pronouncement reported at (2003) 8 SCC 752, R.V.E.
Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.
Temple & Anr. In para 20 of this judgment, the court has laid
down the test with regard to the objection as to the admissibility
of a document in the following terms:
"20. The learned counsel for the defendant-respondent
has relied on Roman Catholic Mission v. State of
Madras [AIR 1966 SC 1457] in support of his
submission that a document not admissible in evidence,
though brought on record, has to be excluded from
consideration. We do not have any dispute with the
proposition of law so laid down in the abovesaid case.
However, the present one is a case which calls for the
correct position of law being made precise. Ordinarily, an
objection to the admissibility of evidence should be taken
when it is tendered and not subsequently. The objections
as to admissibility of documents in evidence may be
classified into two classes: (i) an objection that the
document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the objection
does not dispute the admissibility of the document in
evidence but is directed towards themode of
proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been
marked as "an exhibit", an objection as to its
admissibility is not excluded and is available to be
raised even at a later stage or even in appeal or revision.
In the latter case, the objection should be taken when the
evidence is tendered and once the document has been
admitted in evidence and marked as an exhibit, the
objection that it should not have been admitted in
evidence or that the mode adopted for proving the
document is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the document as
an exhibit. The latter proposition is a rule of fair play.
The crucial test is whether an objection, if taken at the
RFA(OS)No.85/2014 Page 69
appropriate point of time, would have enabled the party
tendering the evidence to cure the defect and resort to
such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party
entitled to object allows the party tendering the evidence
to act on an assumption that the opposite party is not
serious about the mode of proof. On the other hand, a
prompt objection does not prejudice the party tendering
the evidence, for two reasons: firstly, it enables the court
to apply its mind and pronounce its decision on the
question of admissibility then and there; and secondly, in
the event of finding of the court on the mode of proof
sought to be adopted going against the party tendering the
evidence, the opportunity of seeking indulgence of the
court for permitting a regular mode or method of proof
and thereby removing the objection raised by the opposite
party, is available to the party leading the evidence. Such
practice and procedure is fair to both the parties. Out of
the two types of objections, referred to hereinabove, in
the latter case, failure to raise a prompt and timely
objection amounts to waiver of the necessity for
insisting on formal proof of a document, the document
itself which is sought to be proved being admissible in
evidence. In the first case, acquiescence would be no bar
to raising the objection in a superior court."
(Emphasis supplied)
In the present case, the documents which stand exhibited
have been filed not by the respondents but by the appellants.
103. We may point out that the appellants have taken such plea
unmindful of the fact that the documents of title filed by them
reflect that Bhagat Ram and Laxman Singh had acquired a plot of
land whereas the appellants were permitted by Ganpat Ram to
occupy part of the suit property which is a built up property. The
RFA(OS)No.85/2014 Page 70
appellants have rightly laid not a whisper of a challenge to the
ownership of the building which is the subject matter of the suit.
Impact of findings in previous adjudication
104. Apart from the above, in the previous litigation initiated by
Urmila Devi, certain findings and orders have attained finality and
bind her. By the order dated 31st May, 2012 passed by Ms. Ritu
Singh, Civil Judge -04 (South), Saket Court Complex, New Delhi in
CS No.35/2011 Smt. Urmila Devi v. Smt. Bimla Devi & Ors.
allowed the application of the defendants under Order VII Rule 11
of the CPC and rejected the plaint holding as follows :
"6. During the course of arguments Ld. Counsel
for the plaintiff has admitted that plaintiff was
admitted as licensee in the suit property and has
been residing in this capacity for more than 19
years and the same fact has been mentioned in the
plaint in Para 3 of the plaint, wherein plaintiff has
stated that plaintiff was allowed by Late Sh. Ganpat
Ram to reside in the plot.
7. Counsel for defendant has stated that plaintiff
in his plaint has stated that he was in possession of
suit property "as he was allowed" by Late Sh.
Ganpat Ram as mere licensee and therefore his
license is liable to be revoked at any time. To
support his submission, the counsel of the plaintiff
relied on the case of Hon‟ble Delhi High Court in
Chandu Lal Vs. MCD, 15, DLT (1979) 168 to state
that:
RFA(OS)No.85/2014 Page 71
"After termination of the license licensor
is entitled to deal with the property as he
likes. On revocation of license, licensee
seize to enjoy the liberty to continue to
occupy the property so licensed."
8. Further, counsel for the defendant has stated
that the license of the defendant stands terminated
on filing of this suit and further admission made by
the plaintiff in his plaint that defendant are trying to
dispossess the plaintiff tantamount to revocation of
the license of the plaintiff and as such once there is
revocation of license, plaintiff has no further right to
possession in respect of the suit property and he is
merely a trespasser. Counsel for the plaintiff has
relied on the case DTTDC Vs. D.R. Mehra, 1996
AIR (Del.) 351 to state that a licensee whose license
has been revoked, if he continues to be in possession
of the property he shall be deemed to be a
trespasser.
9. In view of submission of the parties,
judgments relied upon by parties and pleadings, this
court is of view that as plaintiff has admitted that
his possession of suit property is that as a licensee,
therefore, threats from defendant to remove him
from suit property by defendant herein, who are
successors-in-title of the owner/licensor is a
deemed revocation of his license. After revocation
of the license, licensee cannot claim any right in
the property and cannot seek protection of his
possession by permanent injunction. Therefore,
this suit for permanent injunction against defendant
to restrain defendants from creating third party
interest or dispossessing the plaintiff whose license
has been revoked is without cause of action."
(Emphasis supplied)
RFA(OS)No.85/2014 Page 72
The appeals assailing the above judgment (RCA No.29/2012
before the District Judge and RSA No.30/2013 before this court)
stand rejected. This finding that Urmila Devi was a licencee and
the licence stood revoked have attained finality and would bind any
consideration of the rights of Urmila Devi in the suit property.
105. Placing reliance on the pronouncement of the Supreme Court
reported at (1999) 3 SCC 145, Wali Mohammed (Dead) by LRs. v.
Rahmat Bee & Ors.; (2005) 6 SCC 202, Annaimuthu Thevar
(Dead) by LRs. v. Alagammal & Ors. and (1997) 2 SCC 203,
Madhavkrishna & Anr. v. Chandra Bhaga & Ors., it is further
urged that given the clear plea in the previous suit (CS No.35/2011)
by Urmila Devi that she was inducted as a licensee by Late Shri
Ganpat Ram in the suit premises and the above findings, she cannot
be permitted to set up a plea of ownership by adverse possession by
application of principles of constructive res judicata contained in
Section 11 Explanation IV of the Code of Civil Procedure.
106. We have extracted above the pleas of Urmila Devi as well as
the findings of the trial court thereon which have attained finality.
We have also noted the clear finding against the appellant that her
license to occupy the suit premises stood terminated. Even if a
plea of having perfected title by adverse possession had been taken
in the written statement, the same was clearly barred by application
of principles of constructive res judicata against the defendants.
RFA(OS)No.85/2014 Page 73
Termination of licence - effect
We now come to the findings of the Learned Single Judge on
the question that given the termination of the licence of the
appellants in the manner, what would be their right to continue to
occupy the suit property?
107. Let us see how the expression licence is defined and
understood in a Full Bench decision of the Bombay High Court
reported at MANU/MH/0692/2007 : 2007 SCC OnLine Bom
602: (2007) 5 Bom Cr 1 (page 320), Prabhudas Damodar
Kotecha and Anr v. Smt. Manharbala Jeram Damodar and
Ors. The court construed the essential constituents of a licence
as in Section 52 of the Indian Easement Act thus:
"45. As opposed to this, the expression "licence", as
defined under section 52 of the Indian Easement
Act, provides that where one person grants to
another, or to a definite number of other persons, a
right to do, or continue to do, in or upon the
immovable property of the grantor, something which
would, in the absence of such right, be unlawful, and
such right does not amount to easement or an
interest in the property, the right is called a license.
Section 52 does not require any consideration,
material or non-material, to be an element of the
definition of licence, nor does it require that the
right under the licence must arise by way of
contract or as a result of a mutual promise. Thus,
licence as defined in section 52 of the Indian
Easement Act can be a unilateral grant and
unsupported by any consideration. The Supreme
Court in State of Punjab v. Brig. Sukhjit Singh, 1993
(3) SCC 459 has observed that, "payment of licence
RFA(OS)No.85/2014 Page 74
fee is not an essential attribute for subsistence of
licence".
46. Let us see as to how the expressions "licence"
and "licensee" are understood, used and spoken in
common parlance. It is often said that a word, apart
from having the meaning as defined under different
statutes, has ordinary or popular meaning and that a
word of everyday usage it must be construed in its
popular sense, meaning that sense which people
conversant with the subject matter with which the
statute is dealing would attribute to it. A "licence" is
a power or authority to do some act, which, without
such authority, could not lawfully be done. In the
context of an immovable property a "licence" is an
authority to do an act which would otherwise be a
trespass. It passes no interest, and does not amount
to a demise, nor does it give the licensee an
exclusive right to use the property. [See Puran
Singh Sahani v. Sundari Bhagwandas Kriplani,
(1991) 2 SCC 180]. Barron's Law Dictionary has
given the meaning of word "licensee" to mean "the
one to whom a licence has been granted; in property,
one whose presence on the premises is not invited
but tolerated. Thus, a licensee is a person who is
neither a customer, nor a servant, nor a trespasser,
and does not stand in any contractual relation with
the owner of the premises, and who is permitted
expressly or impliedly to go thereon usually for his
own interest, convenience, or
gratification". Stroud's Judicial Dictionary of
Words and Phrases, Sixth Edition, Vol. 2, provides
the meaning of word "licensee" to mean "a licensee
is a person who has permission to do an act which
without such permission would be unlawful. [See
Vaughan C.J., inThomas v. Sewell, Vaugh at page
330, at page 351, quoted by Romour, J, in Frank
Warr and Co. v. London County Council, (1940) 1
K.B. 713]." In Black's Law Dictionary, Seventh
RFA(OS)No.85/2014 Page 75
Edition, the word "licence" means "a revocable
permission to commit some act that would
otherwise be unlawful" and the word "licensee"
means "one to whom a licence is granted or one who
has permission to enter or use another's premises,
but only for one's own purposes and not for the
occupier's benefit." Thus, it is seen that even in
popular sense the word "licence" is not understood
to mean it should be on payment of licence fee for
subsistence of licence. It also covers a "gratuitous
licensee", that is, a person who is permitted,
although not invited, to enter another's property and
who provides no consideration in exchange for such
permission."
(Emphasis by us)
108. So far as the rights of a licensee are concerned, it is well
settled that once a licensee, always a licensee. This position does
not change even upon termination of the license. The courts have
held that even a suit for mandatory injunction compelling the
licensee to surrender possession upon termination of licence is
maintainable. In this regard, the learned Single Judge has relied
upon (1985) 2 SCC 332, Sant Lal Jain v. Avtar Singh wherein it
was held as follows :-
"6. ....In Milkha Singh v. Diana, it has been observed
that the principle once a licensee always a licensee
would apply to all kinds of licenses and that it cannot be
said that the moment the license it terminated, the
licensee's possession becomes that of a trespasser. In
that case, one of us (Murtaza Fazal Ali, J. as he then
was) speaking for the Division Bench has observed :
After the termination of license, the licensee is
under a clear obligation to surrender his
possession to the owner and if he fails to do so,
RFA(OS)No.85/2014 Page 76
we do not see any reason why the licensee cannot
be compelled to discharge this obligation by way
of a mandatory injunction under s. 55 of the
Specific Relief Act. We might further mention
that even under English law a suit for injunction
to evict a licensee has always been held to be
maintainable."
(Emphasis by us)
109. In this regard, the learned Single Judge has also relied on the
following observations in the Division Bench pronouncement of
this court reported at AIR 1978 Delhi 174 Chandu Lal v.
Municipal Corporation of Delhi wherein, the rights of the
licensor, after the termination of the licence, have been recognized
thus :
"26. ....A mere licensee has only a right to use the
property. Such a right does not amount to an easement
or an interest in the property but is only a personal
privilege to the licensee. After the termination of the
license, the licensor is entitled to deal with the property
as he likes. This right he gets as an owner in possession
of his property. He need not secure a decree of the court
to obtain the right. He is entitled to resist in defence of
his property the attempts of a trespasser to come upon
his property by exerting the necessary and reasonable
force to expel a trespasser.......
27. In the instant cases the petitioners‟ possession of
the premises (Kiosk) on the facts and circumstances of
the case, cannot be held to be conclusive evidence of
their being a lessee as the grant was not coupled with an
interest in the property. The principle once a licensee
always a licensee applies proprio vigore in these
cases...."
(Underlining by us)
RFA(OS)No.85/2014 Page 77
110. It is the appellants case herein that Shri Ganpat Ram treated
Urmila Devi as his daughter and permitted her to occupy the suit
property. Urmila Devi has throughout asserted not only that she
was permitted to occupy as licencee but the bequest under the Will
set up by the appellants is also only in her favour. She has asserted
sole title, possession and entitlement to relief. Her husband has
resided in the suit property only as a member of Urmila Devi‟s
family. Urmila Devi‟s husband has not set up any independent
claim inasmuch. Even the present written statement, as the
appellants have jointly claimed under the Will allegedly executed
by Late Shri Ganpat Ram in favour of Urmila Devi.
111. It is an admitted position that Urmila Devi was given a
permissive license by Shri Ganpat Ram to occupy the part of the
suit property. Her husband Subhash Kumar has claimed
occupation because of his relationship with her. They have filed a
joint written statement and have placed reliance on the alleged Will
dated 4th January, 2010 which they claim was executed by Shri
Ganpat Ram in favour of Urmila Devi. The family members of
Urmila Devi have no independent right in or to occupy the suit
property.
112. In view of the above facts and circumstances, the learned
Single Judge has rightly noted that the written statement of the
defendants fails to bring out any right, title or interest of the
appellants/defendants to continue to remain in occupation of the
suit property. No issue arose or remained for adjudication. The
RFA(OS)No.85/2014 Page 78
learned Single Judge had, therefore, no option in the matter and has
rightly proceeded to judgment.
Irrevocable licence
113. We may note that in the present appeal, the appellants have
attempted to claim for the first time in the grounds that Ganpat
Ram was in possession of the suit property in the capacity of "a
licensee of his sons but having an interest in the suit property and
making it an irrevocable license as per Section 60 of the Easement
Act". The appellants have urged that Ganpat Ram had independent
and exclusive occupation hostile to the rest of the world over the
suit property including his family and pressed the question that as
to whether Ganpat Ram had himself perfected his "adverse
possession" in the suit property. As noted above, independent title
and exclusive occupation of Ganpat Ram was never the plea of the
appellants herein in any proceedings. There was no such pleading
in the written statement. It has been the consistent stand of the
appellants that Ganpat Ram became owner of 50% of the property
upon the intestate demise of his son who was the owner thereof.
The appellants rely on the aforesaid Will wherein, according to
them, Ganpat Ram himself made a declaration in these terms. The
same stands judicially adjudicated in the prior litigation. The
appellants are bound thus not only by their admissions but by the
judicial findings against them. The appellants are bound by their
admissions noted above and stand precluded from setting up a
contrary plea.
RFA(OS)No.85/2014 Page 79
This plea is clearly devoid of any legal merit and has to be
rejected.
Reliance on the alleged testamentary bequest by Late Shri
Ganpat Ram
114. The respondents have not admitted the execution of the Will
of three pages dated 4th January, 2010 propounded by the
appellants, unsigned on all pages except the last page which
contains two signatures in the Devnagri script. The respondents
challenge the address of Ganpat Ram (that of the suit property) on
the said Will. The appellants contend that Shri Ganpat Ram was
residing with them, his own family, in Govind Puri and that he
never signed in Devnagri. Copies of several letters signed by Shri
Ganpat Ram in English, his income tax returns and cheque book
have been placed on record. The learned counsel for the
respondents would submit that even the two signatures attributed to
Ganpat Ram in Hindi on the last page of the document propounded
by the appellants as his Will do not match.
115. To support residence of Ganpat Ram in Govind Puri, the
appellants have filed the driving licence and PAN card of Shri
Ganpat Ram. The respondents have also relied on the death
certificate of Shri Ganpat Ram which shows that he was residing at
15/1639, Govind Puri, Kalkaji, New Delhi at the time of his death
on 21st August, 2010. It is submitted that the appellants do not
even know or state the correct date of death of Late Shri Ganpat
Ram in any of their pleadings. It is completely unnecessary for us
RFA(OS)No.85/2014 Page 80
to go into these issues given the above discussion so far as the
admissions of the appellants and the rights in the suit property are
concerned. It is also contended that the appellants have shown two
witnesses to the alleged Will, the first being one Mohd. Athar
resident of Shakarpur, Delhi-110092 while the other is Mr. Om
Prakash resident of Kalyan Puri, Delhi-110091. The respondents
would submit that Shri Ganpat Ram did not know any such
persons.
116. In the instant case, given the admissions noted by us have
been made by the appellants in pleadings which are on the apparent
condition that evidence of such pleading would be given and would
bind her (Section 23 under Evidence Act) not only in the civil suit
filed by her but in all cases where she is a party. Given the
applicable principles of law, the learned Single Judge had no option
but to proceed in the matter on the admissions noted above.
117. The appellants failed to comply with the order dated 25 th
April, 2013 for recording their statement despite repeated
opportunities under Order X CPC read with Section 165 of the
Indian Evidence Act. On their request, the matter was repeatedly
adjourned without their making the statement. The appellants did
not even appear on 8th November, 2013 in court. The suit was thus
liable to be decreed even under the provisions of Order X Rule 4(ii)
of the CPC which enables the court to pronounce judgment against
a party who fails to appear in person to make the statement under
this statutory provision. Yet the learned Single Judge has
proceeded to examine the matter on the merits of the controversy.
RFA(OS)No.85/2014 Page 81
Costs of the litigation
118. We now come to a very important aspect of the litigation.
It is the stand of the appellants that they are occupying the 200
sqr.yds. of valuable built-up property in Sangam Vihar, a colony
located in South Delhi. They claim to be in possession of eight
rooms, certainly not a small piece of construction. In the suit
filed by her, Urmila Devi was claiming over only half of the suit
property. Yet before us, the appellants are not willing to vacate
any portion thereof.
119. The respondents before us have submitted that Urmila
Devi was permitted to occupy one room in the property with a
family and has illegally trespassed into the rest of the property.
Urmila Devi claims that Ganpat Ram, father of the owners of the
suit property treated her like a daughter and permitted her to
occupy the same and that she has today been living in the
property for over 18 years, admittedly without payment of a
single penny.
120. The legal principles which have been placed before us are
well settled in specific statutory provision as well as by judicial
precedents. The same have been relied upon by the learned Civil
Judge in rejecting the plaint filed by Urmila Devi on 31st May,
2012 whereby she had sought an injunction prohibiting
dispossession by the children of Shri Ganpat Ram. Those findings
have also attained finality.
RFA(OS)No.85/2014 Page 82
121. During the course of hearing, in the present appeal, we had
repeatedly put the well settled legal position to both, counsels for
the appellants as well as Urmila Devi who personally attended the
hearings. Even before we reserved judgment on conclusion of
arguments, a completely belligerent stand was taken before us and
opportunities to explore alternative dispute redressal were stoutly
rejected by them. Without consideration of merits of her case,
Urmila Devi stated that she will test her luck before the higher
court.
122. Without in any manner being prejudiced by the stand of the
litigant who is entitled to test the merits of his or her case in all
courts, we proceeded to give full hearing to the parties in the
instant case and have penned the above judgment uninfluenced by
the above stand of the appellants. It, however, needs no
elaboration that it is the duty of every person to only put forth a
stand which is legally tenable in support of a fair and just claim.
Speculative litigation has to be discouraged and this solemn duty
rests not only on courts but also on all legal experts as well as the
litigants. Therefore, we cannot refrain from expressing our anguish
that despite the clear legal position, completely unnecessary
litigation has been generated.
123. In the instant case, the desire of the appellants to acquire the
property of the respondents by hook or crook has already generated
two suits (CS No.35/2011 & CS(OS) No. 3275/2012) as well as
three appeals [RCA No.29/2012, RSA No.30/13 and RFA (OS)
No.85/2014 (present appeal)]. The inquiry into mesne profits is
RFA(OS)No.85/2014 Page 83
still pending on the original side. The trial courts as well as this
court has, therefore, been burdened with frivolous litigation or
protraction of litigation as tool by unscrupulous litigants as the
appellants attempting to perpetuate wrongful possession of
property over the other side, despite termination of licence. They
are thereby aggravating the burden on the already overburdened
legal system. Much judicial time has been unwarrantedly caused
to be expended on the cases in which the facts as well as the legal
position is unambiguous, well settled and leave no room for doubt.
The litigation is, therefore both frivolous and vexatious.
124. In these circumstances, we are of the view that the present
appeal was completely misconceived and based on factually and
legally untenable grounds and the appellants must be burdened
with exemplary costs.
125. We propose to extract hereafter the legal position on
consideration of the issue of propriety of imposing costs and the
quantum thereof. In a judgment dated 19th October, 2006 rendered
by one of us (Gita Mittal, J.) in CCPO 130/2005 in OMP
No.361/2004 Goyal MG Gases Pvt. Ltd. V. Air Liquide
Deutschland Gmbh & Ors., the principles and judicial precedents
were extracted in the following terms :-
"60. Vexatious and frivolous litigation poses a number
of threats to the efficient operation of any civil justice
system. Those threats stem from the manner in which
the vexatious and frivolous litigant conducts litigation
before the courts. Such proceedings, apart, from the
oppression and the harassment inflicted on the
RFA(OS)No.85/2014 Page 84
adversary, are extremely damaging to public interest.
Judicial resources are valuable and scarce. The
resources of the court are not infinite, especially in
terms of judicial time. Therefore, administration of
justice and interests of equity and fair play mandate that
a party which succeeds is compensated by award of
costs in respect of false or vexatious claims or defenses.
A faulting party may be required to pay to the other
party such costs as would, in the opinion of the court, be
reasonably sufficient to reimburse the other party in
respect of the expenses incurred by him in attending the
court on that date and payment of such costs on the next
date following the date of such order if unreasonable
adjournments are taken by the parties.
However, many unscrupulous parties take advantage of
the fact that either costs are not awarded or nominal
costs alone are awarded against the unsuccessful party.
61. The legislature has recognised the need for
imposition of costs and consequently, so far as the civil
proceedings are concerned, has enacted Section 35 of
the Code of Civil Procedure which provides for
imposition of costs. The Apex Court was concerned
with the manner in which the costs are imposed
resulting in undue advantage being taken by parties of
the fact that notional costs are awarded which do not
deter or discourage persons from filing vexatious or
frivolous claims or defenses. In this behalf, in Salem
Advocate Bar Association v. Union of India, the court
observed thus:
"37. Judicial notice can be taken of the fact that
many unscrupulous parties take advantage of the
fact that either the costs are not awarded or
nominal costs are awarded against the
unsuccessful party. Unfortunately, it has become
a practice to direct parties to bear their own costs.
In a large number of cases, such an order is
RFA(OS)No.85/2014 Page 85
passed despite Section 35(2) of the Code. Such a
practice also encourages the filing of frivolous
suits. It also leads to the taking up of frivolous
defenses. Further, wherever costs are awarded,
ordinarily the same are not realistic and are
nominal. When Section 35(2) provides for cost to
follow event, it is implicit that the costs have to
be those which are reasonably incurred by a
successful party except in those cases where the
court in its discretion may direct otherwise by
recording reasons therefore. The costs have to be
actual reasonable costs including the cost of the
time spent by the unsuccessful party, the
transportation and lodging, if any, or any other
incidental costs besides the payment of the court
fee, lawyer's fee, typing and other costs in relation
to the litigation. It is for the High Courts to
examine these aspects and wherever necessary
make requisite rules, regulations or practice
direction so as to provide appropriate guidelines
for the subordinate courts to follow."
62. However, there are several proceedings which are
not governed by the Code of Civil Procedure. The courts
have recognised the inherent power of the court to
award costs in the interest of justice.
63. In (2006) 4 SCC 683 State of Karnataka v. All
India Manufacturers Organisation, a challenge was
laid to a common judgment of the High Court of
Karnataka disposing of three public interest litigations
whereby a direction was issued to the State of Karnataka
to continue to implement a certain project known as the
"Bangalore-Mysore Infrastructure Corridor Project".
While dismissing the appeals, the Apex Court held that
there was no merit in them. It was further directed that:
"Considering the frivolous argument and the mala
fides with which the State of Karnataka and its
instrumentalities have conducted this litigation
before the High Court and us, it shall pay Nandi
RFA(OS)No.85/2014 Page 86
costs quantified at Rs. 5,00,000/-, within a period
of four weeks of this order.
The appellants in CA No. 3497/2005 (J.C.
Madhuswami and Ors.) in addition to the costs
already ordered by the High Court, shall pay to
the Supreme Court Legal Services Authority,
costs quantified at Rs. 50,000- within a period of
four weeks of this order...."
64. The observations of the Apex Court in this behalf as
back as in (1994) 4 SCC 225 (at page 246) Morgan
Stanley Mutual Fund v. Kartick Das are also topical
and instructive and were made with the intention of
discouraging speculative and vexatious litigation and
judicial adventurism. In this behalf, the court observed
thus:
"47. There is an increasing tendency on the part
of the litigants to indulge in speculative and
vexatious litigation and adventurism which the
fora seem readily to oblige. We think such a
tendency should be curbed. Having regard to the
frivolous nature of the complaint, we think it is a
fit case for award of costs, more so, when the
appellant has suffered heavily. Therefore, we
award costs of Rs. 25,000/- in favor of the
appellant. It shall be recovered from the first
respondent C.A. No. 4584 of 1994 arising out of
SLP (c) No. 272 of 1994 is allowed accordingly."
65. The Division Bench of this Court in 2004 (110)
DLT 186 entitled Indian Steel & Wire Products v.
B.I.F.R. (DB), held that the sole purpose of filing the
petition was to sabotage the proposal/scheme of TISCO
which was accepted by the BIFR. The court held that
the petitioner-company's false offer and undertaking has
delayed the implementation of the scheme and the
interest of workers and other creditors have suffered.
The court held that the petitioner had not approached the
court with clean hands and that such practice and
tendency needed to be strongly discouraged and
RFA(OS)No.85/2014 Page 87
effectively curbed so that "in future, the petitioner and
such like litigants should not gather the courage of
abusing the process of law for ulterior motives and
extraneous considerations. Such motivated petitions
pollute the entire legal and judicial process which
seriously affects the credibility of this system".
66. In these circumstances, the court held that the
respondent who had to appear before the court in
pursuance of the notice issued had to "unnecessarily
incur the costs to contest such a frivolous petition. In
our considered opinion, at least those respondents who
have appeared and contested this litigation and incurred
costs must be compensated to some extent". The court
consequently awarded costs to each of the respondents
who appeared in the matter on consideration of the
totality of the facts and circumstances and in the interest
of justice and fair play.
67. Imposition of costs normally follows the indemnity
principle which is simply described as "If you lose, you
will be responsible not merely for your own legal costs
but you must pay the other side's too".
68. In this background, there is yet another more
imperative reason which necessitates imposition of
costs. The resources of the court which includes
precious judicial time are scarce and already badly
stretched. Valuable court time which is required to be
engaged in adjudication of serious judicial action, is
expended on frivolous and vexatious litigation which is
misconceived and is an abuse of the process of law. A
judicial system has barely sufficient resources to afford
justice without unreasonable delay to those having
genuine grievances. Therefore, increasingly, the courts
have held that such totally unjustified use of judicial
time has to be curbed and the party so wasting precious
judicial resources, must be required to compensate not
only the adversary but also the judicial system. For this
reason, in the State of Karnataka v. All India
Manufactures Organisation (Supra), the appellants
RFA(OS)No.85/2014 Page 88
were required to pay costs to the Supreme Court Legal
Services Authority in addition to paying the costs to the
adversarial party. Such vexatious litigation has to be
deprecated. Lord Phillips MR in a judgment rendered in
the court of appeal in (2004) 1 WLR 88 (CA) entitled
Bhamjee v. Forsdick and Ors. said:
"(8) In recent years the courts have become more
conscious of the extent to which vexatious
litigation represents a drain on the resources of the
court itself, which of necessity are not infinite.
There is a trace of this in the judgment of
Staughton LJ in Attorney-General v. Jones (1990)
1 WLR 859, 865C, when he explained why there
must come a time when it is right for a court to
exercise its power to make a civil proceedings
order against a vexatious litigant. He said that
there were at least two reasons:
"First, the opponents who are harassed by the
worry and expense of vexatious litigation are
entitled to protection; secondly the resources of the
judicial system are barely sufficient to afford
justice without unreasonable delay in those who do
have genuine grievances and should not be
squandered on those who do not."
69. The same concerns were articulated in Attorney-
General v. Ebert (2004) EWHC 1838 (Admn.) thus:
"Mr. Ebert's vexatious proceedings have...been
very damaging to the public interest; quite aside
from the oppression they have inflicted on his
adversaries.... The real vice here, apart from the
vexing of Mr. Ebert's opponents, is that scarce
and valuable judicial resources have been
extravagantly wasted on barren and misconceived
litigation, to the detriment of other litigants with
real cases to try." Silber J, concurring, referred (at
para 61) to "a totally unjustified use of judicial
time."
RFA(OS)No.85/2014 Page 89
70. The Division Bench of this Court has further
considered yet another impact of frivolous and
vexatious litigation. In 1995 (59) DLT 604 Jagmal
Singh v. Delhi Transport Corporation, the court was
called upon to consider a challenge to the disciplinary
proceedings at the hands of an employee of the Delhi
Transport Corporation. While noticing the various
reasons as to the self-imposed limitations on the courts
in interfering with interlocutory stages of departmental
proceedings, the court arrived at a finding that the writ
petition by the petitioner was not only misconceived but
an abuse of the process of the court. After so holding,
the court observed thus:-
"We are firmly of the view that petitioner has
resorted to the dilatory tactics hereby crippling
the progress of the departmental enquiry pending
against him for the last about eight long years. It
is not only unfortunate but matter of concern to
all of us being the members of the society, that
the petitioner by indulging in this type of
frivolous litigation has not only wasted his time
and money but has also wasted the time of the
court and other public functionaries thereby
causing unnecessary drain on the resources of
public exchequer whose coffers are filled in by
poor people's money. In such a case with a view
to discourage frivolous litigation, it becomes our
duty not only to see that the petitioner is saddled
with exemplary costs but also to ensure that he
gets no benefit on account of the delay caused by
him in the departmental enquiry pending against
him."
71. There have been several other instances when the
courts have been called upon to consider such frivolous
and sham claims. In the judgment dated 17th July, 2006
passed by this Court in Arb.Petition No. 22/2006
entitled M/s Ge Countrywide Consumer Financial
RFA(OS)No.85/2014 Page 90
Services Ltd. v. Shri Prabhakar Kishan Khandare and
Anr., it was observed thus:
"30. The matter however cannot rest here. It is
apparent that the petitioner has caused the
respondents to incur heavy expenses and to contest
litigation in a city where they do not reside or
work for gain. The petition was filed in the district
courts wherein it was contested by the respondents
and thereafter in the jurisdiction of this Court.
Having regard to the entire conspectus and facts
noticed above, in my view, punitive and
exemplary costs deserve to be imposed on the
petitioner for its conduct in effecting the
interpolations in the agreement and placing
reliance on the same before this Court as well as in
compelling the respondents to contest litigation
which it knew was not maintainable within the
jurisdiction of this Court. The petitioner also
deliberately and mala fide concealed a material
facts while filing the present petition. The
petitioner has deliberately wasted precious court
time with impunity and without remorse.
Therefore, whether dismissal or withdrawl, the
petitioner cannot be permitted to get away without
compensation to the respondents and the justice
system. The matter has been listed before this
Court on several dates and before the District
Courts before that. Such conduct has not only to
be condemned but it is necessary to impose such
costs as would deter the petitioner and others like
it from resorting to such tactics.
Therefore, while dismissing the petition I hereby
impose punitive and exemplary costs on the
petitioner of Rs. 1,20,000/- The petitioner shall
apportion the costs which have been awarded
equally between the respondents, the Delhi High
Court Lawyers' Social Security & Welfare Fund
and the National Legal Aid Fund (NALSA). The
RFA(OS)No.85/2014 Page 91
costs shall be deposited by the petitioner within
four weeks. Proof of deposit of the costs shall be
placed before this Court."
xxx xxx xxx
73. In 2006 (32) PTC 133 (Del.) entitled Austin Nichols
and Anr. v. Arvind Behl and Anr., a learned Single
Judge of this Court has expressed the view that mere
injunction does not subserve the interest of unsuccessful
party and that the actual legal costs incurred by them for
contesting the application would be awarded to the party
that succeeds. The plaintiff had indicated that it had
incurred costs of Rs. 18,85,000/-. In these
circumstances, as the plaintiff succeeded in the
application, it was held that it was entitled to costs
which were quantified at Rs. 18,85,000/- even at the
interlocutory stage."
126. Award of costs in favour of the opposite side alone is not
enough. Valuable judicial time is caused to be expended on
vexatious or frivolous or misconceived litigation. This time would
have been better spent on adjudication of critical cases as well as
cases of senior citizens or those needing urgent relief. Additionally
there is a huge drain on the public exchequer as well which
maintains the judicial services which includes not only the court
room but includes a huge layout on administration and provision of
related services ensuring access to justice, legal and alternate
dispute redressal for a (arbitration, mediation and conciliation
centres) on tax payers contribution. Some aspects of this case were
noted by the court in the decision by one of us (Gita Mittal, J.)
dated 19th February, 2009 in Co.Pet.No.368/2008 in the matter of
The Companies Act, 1956 and the petition under Sections 391 and
RFA(OS)No.85/2014 Page 92
394 of the Companies Act, 1956 involving the Scheme of
Amalgamation of : M/s Kusal Securities Pvt. Ltd. and M/s V.V.
Securities Pvt. Ltd. with M/s Peethambra Excavators Pvt. Ltd.
which read thus :-
"24. As of today, it is not only the actual court room
which is involved in the dispensation of justice. Apart
therefrom, there are other forums like Delhi High Court
Legal Services Committee, Delhi High Court
Mediation & Conciliation Centre and Delhi Legal
Services Authority, which are providing
institutionalized alternate dispute redressal forums and
legal aid to support the justice dispensation system.
There is no known method of compensating the judicial
system for the valuable judicial time wasted. However,
strengthening these other systems and provision of
aids the system and facilitates expeditious resolution
and adjudication of disputes.
25. The liquidation proceedings are not only a
prolonged and time consuming affair but extremely
costly. It needs no hard figures and I would be justified
in taking judicial notice of the fact that the state alone
cannot be permitted to bear the unwarranted burden on
the system. Certainly those seeking dispensation, more
so out of turn, are required to contribute the costs
thereof. In view of the scarcity of funds available to
them, the institutions noticed hereinabove deserve to
be financially strengthened by way of providing costs,
as the same goes a long way in discharging judicial
function."
(Emphasis by us)
A direction to unscrupulous litigants pursuing legally
worthless causes to deposit some amounts in these forums out of
the costs which awarded would go towards mitigation of the
RFA(OS)No.85/2014 Page 93
unwarranted drain of public resources on account of the frivolous
litigation generated by unscrupulous parties. The same is certainly
in the interests of justice.
127. We have found that the present appeal was wholly
misconceived and without merit and that judicial time has been
wasted unjustifiably with the intent to oppress the owners of the
property for the malafide purpose of perpetuating wrongful
occupation.
128. The suit property is a valuable piece of property. Judicial
notice can be taken of circle rates of the land which are publicly
notified by the Municipal Corporation of Delhi („MCD‟ for
brevity). So far as Sangam Vihar in South Delhi is concerned, the
same falls in the category „G‟ area in the South Zone of the MCD.
In November, 2012, the MCD Delhi circle rates for Category „G‟
property were @ `38,442/- per sq. mtr. In September, 2014, the
MCD notified the circle rate of Category „G‟ @ `46,200/- per sq.
mtr. Therefore, in Sangam Vihar (Category „G‟), a plot of 200 sq.
yds. in November, 2012 if calculated at such value would come to
`76,88,400/- (`38,442/- x 200). The same plot in September, 2014
would be valued at `92,40,000/- (`46,200/- x 200). Much does not
need to be said on the fact that these are conservative estimates.
The market rate of a built up property of eight rooms with other
facilities in the South Delhi colony would be much more.
129. The appellants have been represented by competent legal
counsels and have shown that they are persons of means capable of
contesting five and more cases in the courts in Delhi which
RFA(OS)No.85/2014 Page 94
includes one suit before the Civil Judge, the appeal before the ADJ,
suit and appeal before the Single Judge as well as the present
appeal before the Division Bench.
130. We have noted above that the appellants are occupying
property of the respondents bearing Plot No.323/1-A, Block-D
(Old No.229/1-A), Sangam Vihar, New Delhi 110062, as claimed,
for over 15 years without paying a penny. However, in the
electoral rolls, the appellants are shown to be residents of House
No.D/2/39, Gali No.2, Block - D, Sangam Vihar, New Delhi,
another valuable property in South Delhi. The litigation thus stems
out of pure greed of the appellants unrelated to any genuine causes
or entitlements. There can be no manner of doubt with the capacity
of the appellants to pay the costs of litigation as may be imposed.
131. Protracted arguments spreading over many days have been
addressed before us. We have also been taken over the record of
the present appeal as well as CS(OS) No.3275/2012. The
appellants must, therefore, be required to compensate the other side
by reasonable costs which they would have incurred in the
litigation and also to afford some measure of compensation to the
judicial system. The appellants have got away without payment of
costs in the other cases.
132. On a consideration of totality of circumstances, the
appellants deserve to be burdened with costs of at least `5,00,000/-.
However, inasmuch as courts are so far generally not imposing
such quantum of costs (which must be encouraging unscrupulous
litigants as these appellants to indulge in judicial adventurism and
RFA(OS)No.85/2014 Page 95
filing cases), we restrict our order on costs of the present appeal to
`1,25,000/- to be apportioned between respondents and Delhi High
Court Legal Services Committee.
Result
133. In view of the above discussion, the appeal is dismissed
being completely devoid of legal merit with costs which are
quantified at `1,25,000/-. The costs shall be apportioned between
the respondents and the Delhi High Court Legal Services
Committee.
The appellants shall pay to the respondents an amount of
`1,00,000/- towards the costs while an amount of `25,000/- shall be
deposited with the Delhi High Court Legal Services Committee
within a period of four weeks from today.
It is ordered accordingly.
(GITA MITTAL)
JUDGE
MARCH 20, 2015 (SUNIL GAUR)
mk/aj/kr JUDGE
RFA(OS)No.85/2014 Page 96
