Sh. Chattarpal (Since Deceased) ... vs D.D.A & Anr.
2016 Latest Caselaw 4860 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.196/2016
%                                                        27th July, 2016

SH. CHATTARPAL (SINCE DECEASED) THR. L.RS                      ....Appellants

                          Through:       Mr. Vinay Gupta and Mr. Samson Honey,
                                         Advocates.
                          versus

D.D.A & ANR.                                                   ....Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

RSA No.196/2016, CM No. 26690/2016 (stay) & CM No. 26691/2016 (u/O XXXII Rules 1 and 2 CPC)

1. This Regular Second Appeal is filed under Section 100 of the Code

of Civil Procedure, 1908 (CPC) against the concurrent Judgments of the courts

below; of the Trial Court dated 7.10.2011 and the First Appellate Court dated

15.7.2016; by which the courts below have dismissed the suit of the plaintiff

(since deceased and now represented by his legal heirs) for declaration of

ownership by adverse possession and injunction. Plaintiff had claimed ownership

of land admeasuring 1 Bigha and 18 Biswas (i.e approximately 1900 sq. yds) in

Khasra No. 391/23/68, Village Khureji Khas, Delhi and now falling within Geeta

Colony, Delhi. In the suit land, the appellants/plaintiff also allege, existence of a

house which bears no.5/9/3-B, Geeta Colony, Delhi-31.

2. Learned counsel for the appellants argues that the courts below have

wrongly held that the suit was not maintainable on account of bar of not giving

the prior statutory notice under Section 53B of the Delhi Development Act, 1957,

and that the courts below have wrongly held that the doctrine of adverse

possession can only be used as a shield and not as a sword, and finally that in fact

the courts below have misread and misappreciated the evidence led on behalf of

the appellants/plaintiff on the point of perversity. One more very startling aspect

was argued, but then given up during the course of arguments before this Court

noted below, that the affidavit of evidence which is filed on behalf of the

appellants/plaintiff of PW-3 is no doubt the affidavit of PW-3 Sh. Mahender

Kumar, but in the cross-examination some imposter appeared instead of real PW-

3 and this aspect came to the notice of the widow of the erstwhile plaintiff (one of

the appellants) after the death of the plaintiff, and therefore, PW-3 had to be

recalled and for which purpose application was filed before the first appellate

court under Order XLI Rule 27 CPC but the same has been summarily dismissed

by the first appellate court without giving reasons and by only giving the reason

that since the appeal is dismissed the application for additional evidence is also

dismissed.

3. So far as the first aspect is concerned that the suit is barred under

Section 53B of the Delhi Development Act, as prior statutory notice is not given

as held by the courts below, this finding is not correct inasmuch as it has been

held by a Division Bench of this Court in the judgment in the case of Yashod

Kumari and Anr. Vs. MCD and Ors. AIR 2004 Delhi 225 that once a suit is

contested to the hilt then courts should not go into technicalities of non-serving of

statutory notice under Section 53B of the Delhi Development Act inasmuch as the

object of serving prior notice is only to avoid litigation but once DDA has

contested the litigation, there should not be emphasize on the aspect of non-

maintainability of the suit on account of not giving of prior notice. However,

finding on this issue would not change the result of the judgments of the courts

below because on merits this second appeal is totally frivolous and has to be

dismissed because no substantial question of law arises.

4. The second aspect which is argued on behalf of the appellants is that

adverse possession can be used also as a sword and not only as a shield and that

the courts below have wrongly relied upon the judgment of the Supreme Court in

the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and another

Civil Appeal No. 8244/2013 decided on 16.9.2013 because this judgment should

not have a retrospective operation because the judgment in Gurudwara Sahib's

case (supra) came in 2013 whereas the subject suit was filed by the

appellants/plaintiff on 18.9.2004.

5. In order to appreciate the arguments of the counsel for the

appellants/plaintiff, it is necessary to refer to the relevant paras of the impugned

judgment of the first appellate court which holds that the doctrine of adverse

possession can only be used as a shield and not as a sword, and which are paras

18 to 22, and the same read as under:-

"18. The aforesaid preposition has been dealt with by the Hon‟ble Supreme Court in the case titled as Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and another Civil Appeal No. 8244/13 decided on 16.09.2013. In the said case, the appellant is the original plaintiff who had filed the suit for decree of declaration to the effect that it had become owner of the suit property by adverse possession. Declaration was also sought to the effect that the Revenue record showing ownership of respondent no.1 herein i.e. Gram Panchayat (Defendant in the suit) is liable to be corrected in the name of the Appellant and the action already held by the Gram Panchayat of the land in dispute is null and void. Consequential relief of permanent injunction restraining Gram Panchayat from dispossessing the appellant from the disputed land was also prayed for. This suit was partly decreed by the trial court granting relief of injunction. First appeal against that part of the judgment whereby relief of declaration was denied was dismissed by the learned Additional District Judge and the Second Appeal preferred by the Appellant has also been dismissed by the High Court of Punjab and Haryana vide judgment dated 22nd September, 2011. Undeterred by successive failures, the appellant has knocked at the door of Hon‟ble Supreme Court with the plea that is suit be decreed in entirety. The appellant claimed ownership by adverse possession on the ground that it is in possession of the land in dispute for sufficiently long period which fact has been established and, therefore, his suit could not be dismissed.

19. The Hon‟ble Supreme Court in para 7 of the judgment had specifically held that a person cannot seek a declaration to the fact that adverse possession has matured into ownership. The same are as under:

In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in

adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possesion as a shield/defence.

20. The Hon‟ble High Court in Sh. Ashok Kumar v. Surjit Kaur & Others AIR 2014 Delhi 1 has held in para 17 of the judgment that:

"Though this court in Manmohan Service Station v. Mohd. Haroon Japanwala, 54 (1994) DLT 552: (AIR 1994 Del 337) held that a suit for declaration of title acquired by adverse possession and for restraining person claiming to be title owner from selling the property to be maintainable but the Supreme court recently in Gurudwara Sahib v. Gram Panchayat, MANU/SC/0939/2013 held that even if plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership; only if proceedings are filed against such person arrayed as defendant, can he use his adverse possession as a shield/defence. The suit from which this appeal arises, insofar as for declaration of title by way of adverse possession, thus in any case appears to be not maintainable."

21. The Hon‟ble High Court of Karnataka in RFA No. 459/13 titled as Smt. M.S.Meenakshamma Vs. State of Karnataka and Others decided on 30.06.2014 relied upon the judgment of Hon‟ble Supreme Court in Gurudwara Singh Sabha has held the similar view.

22. In view of the facts of the case viz a viz the legal proposition, the present appeal of the appellant is liable to be dismissed as not maintainable. The relief of declaration on the basis of adverse possession cannot be asked as a „positive relief‟, it can only be used as a shield." (underlining added)

6. In my opinion, the argument urged on behalf of the

appellants/plaintiff that the judgment in Gurudwara Sahib's case (supra) cannot

be applied retrospectively is a misconceived argument because a judgment of a

court of law is not like a statute which has to be applied only prospectively to the

cases decided after the judgment. A judgment of the Supreme Court lays down

the law and no issue can arise with respect to alleged retrospectivity of application

of a judgment of the Supreme Court which only lays down the law that the

doctrine of adverse possession can only be used as a shield and not as a sword.

Once it is so held by the Supreme Court, it is not open to the appellants/plaintiff

to argue that the doctrine of adverse possession on the basis of which appellants

claimed declaration of ownership of the suit property could be granted to him. In

any case, the discussion given hereinafter will show that even assuming that the

doctrine of adverse possession can be used as a sword and not as a shield, (and

which may be possibly permissible as per the law of prescription contained in

Section 27 of the Limitation Act, 1963) even then the appellants/plaintiff have no

case on merits for claiming declaration of ownership of suit land inasmuch as

appellants/plaintiff have failed to prove ownership on account of continuous

hostile possession over 12 years and since 1970 as was the case of the

appellants/plaintiff. This aspect is discussed in detail below.

7. Learned counsel for the appellants/plaintiff next argued that the first

appellate court has not effectively dealt with the issue of misappreciation of

evidence by the trial court and has only given cursory findings, but, I find that the

argument urged on behalf of the appellants/plaintiff is completely misplaced and

misconceived because the first appellate court in fact has in great detail, in paras

29 to 31 of the impugned judgment, discussed all the aspects which go against the

appellants/plaintiff, and which conclusions are based on the admissions of the

witnesses of the appellants/plaintiff and also the documents which were filed by

the appellants/plaintiff besides also failing to cross-examine the witness of

respondents/defendants on the necessary aspects. These paras 29 to 31 read as

under:-

"29. In the cross examination of appellant as PW1 in the court below it has come on record that appellant admits that he is not the owner of the suit property i.e. the vacant land part of Khasra no. 23, Chariga Junebi, Gandhi Nagar, Delhi ad-measuring about 46.90 acres. He has got no title of ownership. It has further come in the cross examination that the respondent has removed the unauthorised encroachment on 04.09.2000 with the help of police. He admits that the disputed land belongs to Government of India which was transferred to DDA. The appellant has examined Daljeet Singh as PW2. It has come in the cross examination of PW2 that the plaintiff and his family are not in continuous possession of the land since 1970 in land measuring 46.90 acres purchased by DDA of Khasra no. 23, Chariga Junebi, Gandhi Nagar, Delhi. It has further come in his cross examination that there is no house bearing no. 5/9/3B, Geeta Colony, situated at Khasra no. 23, Chariga Junebi, Gandhi Nagar, Delhi.

30. The appellant/plaintiff in support of his case before the Trial court, has examined Sh. S.K.Nasa, Naib Tehsildar, DDA Vikas Sadan as PW4. His cross examination was done on 13.12.2010. It has come in his chief examination that "as on this day, DDA is in physical possession of the suit property".

31. The respondent has also examined Sh. S.K.Nasa wherein this witness has tendered his evidence as DW1. In the chief examination, it has been stated by this witness that the appellant is not in the continuous possession of the property for the last 34 years. The land is a Government land. This witness was cross examined by the appellant. No suggestion was put to this witness qua the same. It is settled preposition of law that if you allow the witness to go unrebutted then the same amounts to admitted. It has come in the cross examination that "I demolished the unauthorized encroachment of the plaintiff thrice". The respondent has exhibited the copy of the order dated 29.08.2002 as Ex.DW1/1. It has been observed in the said order that the facts clearly shows that appellants have encroached upon the Government land and has no title to the property in question. From the above, it is clear that the appellants were never been in the continuous possession or settled possession of the suit property and are encroacher on the Government land and thus are not entitled for any relief, much less the relief of injunction. I find no infirmity in the judgment passed by Ld. Trial Court while deciding issue no.1 and issue no.2."

(emphasis is mine)

8. I have examined the factual contents of paras 29 to 31 of the

impugned judgment of the first appellate court with reference to the cross-

examinations of the witnesses as mentioned in these paras and I find that the

contents of paras 29 to 31 of the judgment of the first appellate court are

absolutely correct. It is found that the witnesses of the appellants have themselves

admitted that the government was the owner of the suit plot and also that the

revenue record showed government as the owner of the suit land. In fact, PW-4

admitted in his examination-in-chief that as on the date of his deposition it was

the respondent no.1/defendant no.1/DDA which was in possession of the suit

property ie appellants/plaintiff could not claim ownership by adverse possession

because appellants/plaintiff were not in possession of the suit property and also

that there did not arise any issue that appellants/plaintiff should not be

dispossessed by due process of law because appellants/plaintiff were not in

possession. I may note that once the revenue record shows the Government of

India as the owner of the suit land, then mere possession of the appellants/plaintiff

would not mean hostile possession asserting title and mere possession is not equal

to adverse possession asserting hostile title. Therefore, appellants/plaintiff by

their own documents have failed to prove hostile adverse possession for claim of

ownership of the suit land. In fact, the deposition of the witnesses of the

appellants/plaintiff, as also the defendant no.1/respondent no.1/DDA, shows that

as many as 3 times encroachment made by the appellants/plaintiff in the suit land

was got removed by the DDA and on this aspect it is also required to be noted that

appellants/plaintiff had filed a writ petition in this Court which was dismissed by

the Judgment dated 29.8.2002 and the appellants/plaintiff filed an LPA before this

Court which was withdrawn on 14.7.2014. I may note that the counsel for the

appellants has deliberately not filed the copy of the Judgment of the writ court

dated 29.8.2002 (Ex.DW1/1) inasmuch as this judgment would have shown that

in fact the appellants‟/plaintiff‟s suit may in fact be barred by res judicata because

the principle of res judicata is of general application vide Gulam Abbas and

Others Vs. State of Uttar Pradesh and Others (1982) 1 SCC 71 . Of course, this

I am saying so as the Judgment of the writ court dated 29.8.2002 holds that the

appellants/plaintiff had no right to remain in possession as appellants/plaintiff had

failed to prove ownership with the fact that the judgment of the writ court has

noted that appellants were encroacher and were removed from the suit property

for removing of encroachment. This is stated in para 31 of the impugned

judgment of the first appellate court, as reproduced above. I may note that the

claim of the appellants/plaintiff of there existing construction on the suit land and

appellants/plaintiff having built a house bearing no.5/9/3-B, Geeta Colony, Delhi

and hence entitlement of the appellants/plaintiff to declaration of ownership by

adverse possession not only must fail on account of the judgment of the Supreme

Court in the case of Gurudwara Sahib (supra) but also I note that

appellants/plaintiff have led no evidence as to the exact location of this house in

Khasra no. 391/23/68 and there is no demarcation report of revenue official

conducted as to the aspect that this house no.5/9/3-B, Geeta Colony, Delhi falls in

the subject khasra no and in the subject suit land of 1 Bigha and 18 Biswas. In any

case, as already observed above, the Judgment of the writ court dated 29.8.2002

as also the deposition of the witness of the defendant shows that repeated

endeavours of encroachment made by the appellant no.1and her late husband the

erstwhile plaintiff were unsuccessful and were removed by the respondent

no.1/defendant no.1/DDA.

9. I therefore reject the argument urged on behalf of the appellants that

there is any perversity in the findings and conclusions of the courts below by

misappreciating and misreading the evidence and causing perversity.

10. The last argument urged on behalf of the appellants/plaintiff is that

the first appellate court has illegally dismissed the application under Order XLI

Rule 27 CPC by a single line without giving any reasons, and therefore, this

application under Order XLI Rule 27 CPC ought to be allowed. Of course, I do

find that the argument urged on behalf of the appellants/plaintiff is correct that the

first appellate court has, without reasons summarily dismissed the application

under Order XLI Rule 27 and, however, when I have examined the application

under Order XLI Rule 27 CPC, I find that the same is liable to be dismissed with

reasons even because the application is totally frivolous. I note that by this

application the appellants/plaintiff claims that PW-3 who deposed on behalf the

appellants/plaintiff in cross-examination was not the real PW-3 Sh. Mahender

Kumar but was an imposter who was brought in by the then Advocate Sh. B.K.

Pandey. It is also stated that the appellant no.1 who is the widow of the original

plaintiff came to know of this fact after the death of her husband and during the

pendency of the first appeal.

11. I must observe that this Court is amazed at the types of defences and

cases which are set up before courts these days. This is done because the laws of

perjury are not being strictly enforced in this country. It is in fact noted that Sh.

Samson Honey, Advocate who is associated with the counsel Sh. B.K. Pandey,

Advocate who allegedly brought in the imposter Sh. Mahender Kumar instead of

the real Sh. Mahender Kumar (PW-3) has in fact appeared on behalf of the

plaintiff in the trial court and cross-examined the witnesses of the defendant. This

is shown in the cross-examination of DW-1 conducted on 20.4.2011. The

application under Order XLI Rule 27 CPC in the first appellate court was filed by

Sh. Samson Honey, Advocate. Also, I find it very strange that when the plaintiff

was alive the plaintiff himself never questioned that the cross-examination of PW-

3 Sh. Mahender Kumar was of an imposter and not the real Sh. Mahender Kumar

and it is only after the death of the original plaintiff that the appellant no.1/widow

of the original plaintiff, has taken up this case.

12. At this stage, counsel for the appellants, on instructions from the

appellants states that this last argument seeking relief in the application under

Order XLI Rule 27 CPC is not pressed.

13. The result of the aforesaid discussion would be that the following

conclusions are arrived at:-

(i) Appellants/plaintiff are rank encroachers on public land.

(ii) Repeated endeavours of the erstwhile plaintiff to encroach upon the

public land were frustrated by the respondent no.1/defendant no.1/DDA and the

erstwhile plaintiff was also unsuccessful in seeking relief in a writ petition which

was filed in this Court and which writ petition came to be dismissed vide

Judgment dated 29.8.2002, and copy of which judgment, it appears, has

deliberately not been filed by the appellants/plaintiff as some of the reliefs in the

suit would be barred by application of the doctrine of res judicata on a reading of

that judgment.

(iii) Witnesses of the appellants/plaintiff have themselves deposed with

respect to the ownership of the suit land of the government and the revenue

records filed by the appellants/plaintiff themselves show ownership of the

government of the suit land and hence no case is made out for assertion of hostile

title as against the government.

(iv) Oral evidence cannot have the effect of divesting the

defendants/respondents or the government of India of ownership of a valuable suit

land of about 1900 sq. yds in area.

14. In view of the above, I find that the concurrent judgments of the

courts below have rightly dismissed the suit of the appellants/plaintiff and no

substantial question of law arises for this second appeal to be entertained under

Section 100 CPC.

15. In view of the peculiar facts of the case showing repeated and

malafide endeavors of the appellant no.1and her late husband/erstwhile plaintiff in

seeking to encroach upon the valuable government land, this second appeal is

dismissed with costs of Rs.1,00,000/- which shall be deposited by the appellant

no.1 with the Prime Minister‟s National Relief Fund within a period of four weeks

from today.

16. List before the Registrar General on 29.8.2016 for ensuring

compliance of the order of deposit of costs.

JULY 27, 2016                                    VALMIKI J. MEHTA, J
ib