Delhi High Court
Om Prakash Bawa (Deceased Thr Lrs) vs Badri Bhagat Jhandewalan Temple ... on 19 July, 2016
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19th July, 2016
+ RSA 169/2016
OM PRAKASH BAWA (DECEASED THR LRS) ..... Appellants
Through: Mr. S.S. Panwar and Ms. Nivedita
Panwar, Advocates
versus
BADRI BHAGAT JHANDEWALAN TEMPLE SOCIETY
..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
C.Ms.No.23940-41/2016 (Exemption)
Allowed subject to all just exceptions.
RSA 169/2016 & C.M.No.23942/2016 (Stay)
Received on transfer.
The question of law sought to be raised in this second appeal is that
neither the trial court nor the appellate court has dealt with the issue of
limitation and cause of action.
In a suit for possession by the respondent-plaintiff, it was asserted
that appellants herein are unauthorizedly and illegally raising construction
over the suit property and in this regard a complaint was made to the local
SDM by the respondent-plaintiff way back in the year 1997 and a suit
RSA 169/2016 Page 1
was filed by them in the very same year. Trial court has held that the
burden of proving lack of cause of action and suit being barred by
limitation was upon appellants and on this issue, no evidence has been led
and, so these two issues were decided against appellants/defendants.
At the hearing of this second appeal, it was vehemently contended
by learned counsel for appellants that the first appellate court has not at
all dealt with the issue of limitation and lack of cause of action though it
was specifically pleaded and argued. It was pointed out that respondent-
plaintiff in his cross-examination has admitted that it is not known that
since when appellants-defendants are in possession of the suit property
and it is vehemently submitted that a suit for possession is not
maintainable unless the plaintiff asserts that when he has been ousted
from the possession.
Upon hearing and on perusal of the concurrent findings returned by
the courts below, I find that in a case where plea of adverse possession is
taken, what is material is as to when hostile possession is asserted by the
party who takes such a plea. Simplicitor possession without assertion of
hostile title is not of any consequence. So it will not be fatal to the case of
the respondent-plaintiff, if it does not know as to since when appellants-
defendants were in possession of the suit property. Assertion of hostile
title can be legitimately raised if a notice asserting so, is published in any
newspaper or put in social media or if the water, electricity bill or
property tax is being paid by the party who claims adverse possession.
Simply on the strength of voter identity card or ration card, adverse
possession cannot be asserted for the reason that the voter identity card or
the ration card etc. does not relate to the suit property in respect of which
RSA 169/2016 Page 2
adverse possession is claimed and infact, the ration card etc. pertains to
the entire Jhandewalan Temple.
Regarding lack of cause of action, it would be suffice to say that
cause of action did not arise when appellants enter into the suit property
but would arise from the date he asserts adverse possession. There are
pleadings to be effect that appellants had asserted adverse possession way
back in the year 1997 by raising illegal construction and promptly
respondent-plaintiff had made a complaint to the local SDM and had filed
the suit for possession which has been rightly decreed by courts below.
In the considered opinion of this Court, no substantial question of
law arises in this second appeal. Finding no illegality or infirmity in the
judgments of the courts below, this appeal and the stay application are
dismissed while leaving the parties to bear their own costs.
(SUNIL GAUR)
JUDGE
JULY 19, 2016
r
RSA 169/2016 Page 3
