Delhi High Court
Sarvinder Singh & Anr. vs Vipul Tandon on 3 May, 2016
$~16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 03.05.2016
% CS(OS) 2453/2015
SARVINDER SINGH & ANR ..... Plaintiffs
Through: Mr. Amarjeet Sahni, Advocate
versus
VIPUL TANDON ..... Defendant
Through: Mr. Ramkishan Saini, Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
I.A. No.1190/2016
1. This application has been preferred by the plaintiff under Order 12
Rule 6 CPC for passing of decree on the basis of admission. The plaintiffs
have filed the present suit to seek the relief of possession and mesne profits/
damages from the defendant in respect of the suit property, i.e. flat having
three floors with lawn and terrace and four servant quarters in property
no.27, Rajpur, Delhi as shown in red colour in the site plan filed with the
plaint. The plaintiffs have also claimed damages @ Rs.2 lacs per month
along with interest @ 15% p.a. against the defendant towards use and
CS(OS) 2453/2015 Page 1 of 25
occupation charges in respect of the suit property from the date of filing of
the suit till possession.
2. The case of the plaintiffs in the plaint is that the suit property was
owned by their mother late Smt. Nirmal Satyendra Singh and she had spent
most of her time in the said property. The plaintiff no.1 is settled in U.K. and
plaintiff no.2 is settled in Canada for the last more than 44 years. The father
of the plaintiffs had also settled in Canada in the year 1968. The plaintiffs
state that their mother, namely, late Smt. Nirmal Satyendra Singh refused to
shift abroad and she stayed back in India in the suit property. In these
circumstances, the defendant was appointed as the caretaker of the mother of
the plaintiffs. The plaintiffs claim that upon the death of their mother
on 24.11.1994, they inherited the suit property being the only Class-I heirs
of their late mother.
3. The plaintiffs state that on 13.05.1996, the defendant filed a probate
petition being PC No.182/1996 in the court of the District Judge, Delhi. This
probate was filed in respect of an alleged will dated 15.08.1992 attributed to
late Smt. Nirmal Satyendra Singh, whereunder, purportedly the suit property
had been bequeathed to the defendant, to the exclusion of the plaintiffs who
are her sons. The plaintiffs state that the defendant played a fraud while
filing the said probate petition, since it was not disclosed therein that the
plaintiffs are residing abroad since 1970. The defendant obtained service
report qua the plaintiffs by manipulation, and forged the signatures of the
plaintiffs on the summons. The plaintiffs state they were not even in India
on 31.05.1996, when the service of summons was allegedly affected on
them. On the basis of service report, since no objections were filed, on
CS(OS) 2453/2015 Page 2 of 25
13.08.1997 the learned District Judge granted probate to the defendant in
respect of the alleged will dated 15.08.1992.
4. The plaintiffs state that one flat in property no.27, Rajpur Road, which
was earlier in tenancy of a tenant, namely, R.S. Chitnis was illegally sold by
the defendant to one Smt. Renu Agarwal by forging the signatures of their
mother and getting the documents executed for sale of the said flat. Plaintiff
no.1 visited India and learnt of the said development. Since the defendant
was intending to sell the other portions of the suit property, Suit No.39/2002
was filed before the court of the Civil Judge, Delhi along with an application
under Order 39 Rule 1&2 CPC to seek a permanent injunction against the
defendant from dealing with the property. This injunction was granted on
04.05.2002.
5. The plaintiffs state that in response to the aforesaid suit for injunction
filed by them, the defendant filed his written statement claiming ownership
in the suit property. The said written statement was filed on 22.02.2002.
The plaintiffs state that they learnt from the defence taken by the defendant
in the said suit, that the defendant had obtained probate, as aforesaid.
Consequently, the plaintiff no.1 filed an application under Section 263 of the
Indian Succession Act praying for revocation of probate granted in favour of
the defendant. That application was contested by the defendant and was
dismissed by the learned ADJ vide order dated 24.04.2007. Aggrieved by
the said order, the plaintiff no.1 preferred FAO No.242/2007 before this
court.
6. Vide order dated 14.01.2011, this court restored the probate petition
to its original number, and it was directed that the same be decided afresh
CS(OS) 2453/2015 Page 3 of 25
after giving opportunity to the plaintiff to file their objections. The order
granting probate in favour of the defendants herein was set aside.
7. The plaintiffs have extracted the relevant portion of the said order
passed by this court, which reads as follows:
"23. In these circumstances, the order passed by the Addl.
District Judge cannot be sustained. Consequently, the order of
the Addl. District Judge is set aside and the probate granted in
favour of the respondent is also set aside with a direction to ld.
Addl.Distict Judge to re-decide the probate petition after
considering the objections of the appellant, if any, as the will
apparently seems to be shrouded by suspicious circumstances
with regard to the service of the appellant. The claim of the
respondent to be the adopted son in the absence of any
document to show that adoption was there or not, particularly,
when the deceased testatrix has two sons alive is also a
suspicious circumstance which needs to be cleared as to how,
the deceased testatrix would have excluded of her legal heirs
and would have considered bequeathing the property to the so-
called adopted son without assigning any reasons".
8. Accordingly, the probate petition was restored for re-adjudication.
Eventually, vide order dated 20.03.2014, the probate petition was dismissed,
and the appeal preferred by the defendant being FAO No.179/2014 was also
dismissed by this court on 11.03.2015. Consequently, the right claimed by
the defendant premised on the alleged will could not be proved, and by force
of the law of succession, the plaintiffs - being the Class-I heirs, succeeded to
the suit property to the exclusion of the defendant.
9. In the present suit, upon issuance of summons, the defendant has filed
the written statement. The plea now set up by the defendant is that the
present suit is barred by limitation. The defendant states that he is in
possession of the suit property "as owner since the death of the mother of
the plaintiff in 1994". In para 6 of the written statement, under the heading
"Preliminary Objections", the defendant states as follows:
"6. That the defendant is in possession of the property as
owner and has been claiming so since the death of the mother
of the plaintiffs, which fact has been admitted by Sh. Sarvinder
Singh while appearing as OW-1 in the probate case titled as Sh
Vipul Tandon versus State. This fact is also in the notice of the
plaintiffs since February 2002, when the defendant filed his
written statement in the court of Ms. Nirja Bhatia, the then
Civil Judge, Delhi in suit for injunction titled as, Sh. Sarvinder
Singh versus Vipul Tandon. The defendant in the said written
statement had specifically stated that he is in possession of the
suit property as owner. The possession of the defendant in the
suit property is open, hostile with enmity for the last more
than 12 years which is in the specific knowledge of the
plaintiffs. The defendant has thus become owner of the suit
property by adverse possession". (Emphasis supplied)
10. The submission of learned counsel for the plaintiff is that a perusal of
the written statement of the defendant would show that there is no denial of
the aforesaid facts and developments as narrated upto para 8 hereinabove.
There is no denial of the fact that late Smt. Nirmal Satyendra Singh was the
original owner of the suit property; that she died on 24.11.1994; that the
defendant filed the probate petition on 13.05.1996, which was granted on
13.08.1997; that the plaintiffs filed the suit to seek injunction against the
defendant from dealing with the suit property in January 2002; that the
application for interim injunction was allowed in the said suit on
04.05.2002; that the written statement was filed by the defendant in the said
suit on 22.02.2002, wherein the defendant claimed to be the owner of the
suit property on the basis of the will dated 15.08.1992 which had been
probated vide order dated 13.08.1997; that the revocation petition was filed
by the plaintiff on 27.01.2003 under Section 263 of the Indian Succession
Act; that the revocation petition was dismissed on 24.04.2007; that the High
Court allowed the appeal of the plaintiffs on 14.01.2011, setting aside the
order dated 13.08.1997 granting probate as well as the order dated
24.04.2007 dismissing revocation petition of the plaintiffs; that the probate
petition was eventually dismissed by the learned ADJ on 20.03.2014, and;
that the High Court dismissed the first appeal of the defendant on
11.03.2015. Learned counsel submits that the order dismissing the Probate
Case has, thus, attained finality.
11. Learned counsel for the plaintiff, therefore, submits that the only
defence set up in the written statement-to the claim for possession of the
plaintiff, is that the defendant has been in adverse possession of the suit
property for a period of over 12 years, i.e. since the death of the mother of
the plaintiff in 1994. Learned counsel submits that such a plea is not tenable
in law, and the defendant cannot be heard to urge the said plea in law. In
support of this submission, he relies on Rama Kant Jain v. M.S. Jain &
Ors. AIR 1999 Del 281. He submits that the aforesaid admitted
developments clearly show that the defendant cannot, in any event, claim to
be in settled and hostile possession of the suit property for a period of 12
years prior to filing of the present suit.
12. Learned counsel submits that the defendant had throughout claimed
title to the suit property by recognising the right, title and interest of late
Smt. Nirmal Satyendra Singh. He claimed title on the basis of the alleged
will dated 15.08.1992. Therefore, he did not claim a title adverse to the
owner i.e. late Smt. Nirmal Satyendra Singh, or thereafter, a title hostile to
her heirs i.e. the plaintiffs.
13. Learned counsel submits that the defendant even pursued the right
claimed on the basis of the alleged Will dated 15.08.1992 by filing a probate
petition, and obtained probate founded upon the said will. Even when the
plaintiffs filed the revocation petition, the defendant contested the
revocation petition, meaning thereby, that the defendant asserted his claim to
the suit property on the basis of the will. Learned counsel submits that this
stand of the defendant was rejected by the learned ADJ on 20.03.2014, and
his appeal was dismissed on 11.03.2015. Thus, till 11.03.2015, the
defendant continued to claim his title to the property on the basis of the will,
and not by way of adverse possession.
14. Learned counsel submits that in view of the earlier stand taken by the
defendant in the probate proceedings, wherein he also claimed to be the
adopted son of late Smt. Nirmal Satyendra Singh-which stand was rejected
by the learned ADJ, it is not open to the defendant to now turn around and
claim to have been in adverse possession. It is further submitted that, in any
event, the plaintiff did not accept the claim of title set up by the defendant
and initiated the first legal proceedings against the defendant, challenging
his right, tile, interest and possession in the suit property by filing their suit
for injunction in January 2002, i.e. within 8 years of the demise of Smt.
Nirmal Satyendra Singh. Since then the parties have been in litigation
regarding the title to the suit property.
15. Learned counsel for the plaintiff has also placed reliance on the
judgment of the Supreme Court in State of U.P. v. Nawab Hussain, AIR
1977 SC 1680 to submit that the plea of adverse possession had not been set
up by the defendant in the earlier litigation and, therefore, the doctrine of
constructive res judicata bars the defendant from raising such a plea in the
present suit.
16. The application is opposed by the defendant. Learned counsel for the
defendant, firstly, submits that there is no admission made in the written
statement that the defendant has no right, title or interest in the suit property.
Learned counsel submits that the defendant had set up his claim of title to
the suit property by filing his written statement in the earlier suit for
injunction. The said written statement was filed on 22.02.2002. The plaintiff
ought to have instituted the suit for possession within 12 years of learning of
the defendants claim to title to the suit property. That not having been done,
the present suit - which has been filed only on 10.08.2015, is barred by
limitation.
17. Having heard learned counsels for the parties, in my view, the
plaintiff is entitled to a partial decree for possession since the only
substantive defence set up by the defendant in respect of the relief of
possession - that the defendant is in adverse possession of the suit property
since 1992, is not a tenable plea and the defendant is barred from raising
such a plea.
18. At the outset, I consider it appropriate to take note of the law of
adverse possession. Since the defendant now claims rights in the suit
property by adverse possession, it is necessary to examine as to what
constitutes "adverse possession", and, whether such a plea can be raised by
him in the admitted facts of the present case, or not.
19. The defendant does not deny the fact that during the lifetime of late
Smt. Nirmal Satyendra Singh, she was the owner of the suit property and he
was her Caretaker in the property. Thus, the nature of the occupation of the
defendants at the time of demise of late Smt. Nirmal Satyendra Singh was
that of a mere licensee, since he was staying in the property under the
permission of, and desire of the owner late Smt. Nirmal Satyendra Singh.
20. In Kunnabai, w/o Ganeshlal & Ors. v. Ashu, s/o Waman & Anr.,
1998 (2) MHLJ 161, the essential requirements for a claim of adverse
possession were laid down in the following words.
"the person claiming adverse possession will also have to
point out as to since when, i.e at what point of time, he started
claiming possession adverse to the real owner and further will
have to satisfy that even though his possession was of such
nature that it cautioned the real or true owner of the property
to take steps for obtaining possession, he remained in
possession uninterruptedly, peacefully, without any
obstruction from the true owner of the property. Therefore the
concise statement of material facts constituting plea of adverse
possession are necessary. A bare statement without there being
any material particulars pleaded in the written statement if
allowed to be proved, will lead the plaintiffs or true owner of
the property into confusion and taken him by surprise at the
trial." (Emphasis supplied)
21. Upon the demise of late Smt. Nirmal Satyendra Singh on 24.11.1994,
the defendant could not be said to have come into adverse possession of the
suit property, as claimed by him. His status - as a mere licensee in the suit
property, continued even after the demise of late Smt. Nirmal Satyendra
Singh on 24.11.1994. It is not the defendant's case that he openly cautioned
the true and real owners of the suit property, namely the plaintiffs, that he
was in hostile possession of the suit property while denying and denouncing
the title of the plaintiffs to the suit property. It was only when the defendant
filed his written statement on 22.02.2002 in the injunction suit that he, for
the first time, claimed ownership in the suit property. Pertinently, even then
the claim of the defendant was premised on the order dated 13.08.1997
passed in the probate case filed by him in respect of the Will dated
15.08.1992. The defendant has himself filed - along with his list of
documents, the certified copy of his written statement filed in the injunction
suit (which is dated 22.02.2002). In the said written statement, he, inter
alia, states in paragraph 8 of the preliminary objections:
"8. That the suit is barred by Section 11 of the Code of Civil
Procedure. The Hon'ble District Judged Delhi has already
held, the defendant to be owner of the property in question
vide order date 13.8.1997. Late Smt. Nirmal Satyender Singh
who was the adoptive mother of the defendant duly executed a
Will dated 15.08.1992 bequeathing the property in question in
favour of the defendant beside her immovable properties
situated at Ikauna Town, District Baharich, U.P. The
defendant even otherwise, became absolute owner of the
property in question and the properties in District Baharaich,
U.P, by virtue of the said Will dated 15.08.1992. It is not
necessary for a Hindu to obtain Probate of the Will left by a
Hindu. However, the defendant has obtained probate of the
said Will. The property in question is Mutuated in Revenue
Records in the name of the defendant. The defendant is the
absolute owner of the property in question. All these facts are
within the specific knowledge of the plaintiff and his brother."
(Emphasis supplied)
22. He also set up a plea in the said written statement that he was the
adopted son of late Smt. Nirmal Satyendra Singh. In paragraph 1 of the
"Reply on Merits" in his written statement, the defendant, inter alia, stated
that:
"1. ... ... ... The plaintiff or his brother have no right, title or
interest in the property in question of which the defendant is the
absolute owner of the property in question. It is submitted that
Smt. Nirmal Satyender Singh had adopted the defendant as
her son and left a Will duly executed in presence of the
witnesses in respect of her immoveable properties i.e. Property
in question and the properties situated at Ikauna Town,
District Baharaich, U.P. bequeathing the same in favour of
the defendant and by virtue of the said Will dated 15.8.1992,
the defendant became absolute owner after her death. The
defendant has already obtained the Probate of the said Will
from the Court of Hon'ble District Judge, Delhi, though, it
was not required. The property in question is mutated in
Revenue Records in the name of the defendant as absolute
owner." (Emphasis supplied)
23. Similarly, he stated in paragraph 2 of the written statement, inter alia,
as follows:
"... ... ... It is submitted that by virtue of the Will dated
15.8.1992, the defendant became the absolute owner of the
property in question on the death of his adoptive mother Smt.
Nirmal Satyender Singh."
24. The plea of the defendant in his written statement dated 22.02.2002
was not that of adverse possession. In fact, the said plea was premised on a
legal right allegedly derived on the basis of the Will dated 15.08.1992
attributed to late Smt. Nirmal Satyendra Singh and on the plea that the
defendant was the adopted son of late Smt. Nirmal Satyendra Singh.
25. As noticed hereinabove, when the said plea was raised by the
defendant and came to the notice of the plaintiffs, they moved an application
under Section 263 of the Indian Succession Act. A perusal of the judgment
dated 20.03.2014 passed by the learned Additional District Judge in the
probate case No.77/13/96 (whereby the probate petition was dismissed)
shows that on the application filed by the plaintiffs under Section 263 of the
Indian Succession Act, issues were framed on 25.10.2005. This, obviously,
means that the application under Section 263 of the Indian Succession Act
was filed before the said date, i.e. well within about 3 years and 8 months of
the defendant disclosing his title premised on the probate petition by him in
respect of the Will dated 15.08.1992, and on his plea that he was an adopted
son of late Smt. Nirmal Satyendra Singh. Thus, it is clear that even though
the defendant remained in physical possession after filing his written
statement dated 22.02.2002, he was not in peaceful, uninterrupted or settled
possession of the suit property. Merely because the plaintiffs did not seek to
take the law into their own hands, and did not seek to physically disturb his
possession, it does not mean that the possession of the defendant was
"peaceful" or "settled". The defendant's title, on the basis of which he
justified his possession, stood challenged by the true owners. The
enjoyment of the proprietary rights in the suit property by the defendant was
interrupted by the injunctive relief sought by, and granted to the plaintiffs on
04.05.2002. The true owners of the property, namely the plaintiffs, did not
let the defendant remain in peace qua his claim of title, and they initiated
proceedings to challenge the probate obtained by the defendant, on the basis
of which he claimed title to the property.
26. In Surajmal Marwari & Ors. v. Rampearaylal Khandelwal & Ors.,
AIR 1966 Pat 8, the law of adverse possession was exhaustively considered
by the Court. The following extracts from the detailed decision in Surajmal
Marwari (supra) are pertinent, and squarely apply in the facts of the present
case as well:
"25. While deciding a plea of adverse possession and more so
by a person who was (admittedly) once inducted into the
premises as a tenant, i.e., permissible possession, the principle
is that there is a presumption that the existing state of affairs
continues. I should not be understood as saying that there can
never be adverse possession at the instance of one, who was
once upon a time a tenant against the owner but it will be a
very uphill task and would require a clear proof. The rationale
for this legal principle is that an owner is entitled to presume
that the relationship continues. Otherwise, the owner may be
thinking that it is in possession of a tenant while the period
for prescription might be running..... .... .....
26. In the present case too, the bar of Slum Area (Clearance
& Improvement) Act (which is applicable only to a tenant and
not to a ranked trespasser) was raised. This continued till at
least 1966. Thus at least till that date, the permissive nature of
the possession was acknowledged. The execution which was
filed in 1959 was adjourned sine die. In other words, in some
ways, technically it is still pending. It was the notice dated
6.11.70 which first alleged trespass. It was perhaps in response
to this notice that a suit was filed on 20.3.1973 claiming
ownership but this was withdrawn in the same year. The
withdrawal in the facts of this case can also be presumed /
inferred to operate as giving up of the claim of the hostile
possession. The suit subject matter of appeal filed in 1982 was
well within 12 years from 6.11.1970. Whatever might have been
said in the said notice, the appropriate question is as to when
the respondents/defendant (tenant or his heirs) first said: "We
are no longer in possession as tenant. We do not want
protection as tenant. We are in possession as owners and you
are free to file a title suit for possession against us if you so
wish." No such intention was manifest till 1973. On the
contrary the events display a desire to use the protection of law
available to tenants to remain in possession. Even otherwise,
examining all these provisions, the conclusion is irresistible
that for a property which was once tenanted, unless restoration
is shown to the landlord (under Section 108-G of the Transfer
of Property Act which is the statutory duty of the tenant) for a
tenant to assert adverse possession and title is not to be readily
accepted in absence of clear proof. " (Emphasis supplied)
27. The fact situation in the present case, though not identical, is similar
to that dealt with by the Court in Surajmal Marwari (supra). In that case,
the bar under the Slum Area (Clearance & Improvement) Act was raised by
the occupant, i.e. the erstwhile tenant, who claimed adverse possession. In
the present case, the probate obtained by the defendant in respect of the Will
dated 15.08.1992, on 13.08.1997, from the Court of the District Judge was
raised as a defence by the defendant in the suit for injunction (in his written
statement dated 22.02.2002), and it became a stumbling block for the
plaintiffs to sue the defendant for possession of the suit property. It was
essential for the plaintiffs to first clear the said hurdle, before they could sue
the defendant for possession. In this context, in Surajmal Marwari (supra),
the Court observed:
"26. In the present case too, the bar of Slum Area (Clearance &
Improvement) Act (which is applicable only to a tenant and not
to a ranked trespasser) was raised. This continued till at least
1966. Thus at least till that date, the permissive nature of the
possession was acknowledged."
28. Pertinently, in the present case, the defendant himself contested the
plaintiff's application under Section 263 of the Indian Succession Act,
meaning thereby, that the defendant continued to take the stand that he had
derived title in the suit property on the basis of the Will dated 15.08.1992,
and on account of his being the adopted son of late Smt. Nirmal Satyendra
Singh. The defendant continued to pursue the said stand not only till the
passing of the order dated 20.03.2014 in probate case No.77/13/96, but even
thereafter since the defendant proceeded to file a first appeal to assail the
said order dated 20.03.2014 in FAO No.179/2014. The said FAO came to
be dismissed only on 11.03.2015. Thus, till 11.03.2015, the stand of the
defendant was, that he derives title to the suit property - not by way of
adverse possession, but on the strength of the probate of the Will dated
15.08.1992, and on the strength of the adopted son of late Smt. Nirmal
Satyendra Singh.
29. In Surajmal Marwari (supra), the Court also took note of the
judgment of the Supreme Court in T Anjappa and Ors vs Somalingappa
and Another, (2006) 7 SCC 570, wherein the Supreme Court observed:
"The concept of adverse possession contemplates a hostile
possession i.e. a possession which is expressly or impliedly
denies the title of the true owner. Possession to be adverse must
be possession by a person who does not acknowledge the
other's right but denies them. The principle of law is firmly
established that a person who basis his title on adverse
possession must show by clear and unequivocal evidence that
his possession was hostile to the real owner and amounted to
denial of his title to the property claimed. For
deciding whether the alleged act of a person constituted
adverse possession, the animus of the person doing those acts is
the most crucial factor. Adverse possession is commenced in
wrong and is aimed against right. A person is said to hold the
property adversely to the real owner when that person in denial
of the owner's right excluded him from the enjoyment of his
property". (Emphasis supplied)
30. Reliance was also placed on Konda Lakshmana Bapuji vs
Government of Andhra Pradesh, 2002 AIR (SC) 1012:2002 (3) SCC 258,
wherein it was held:
"The question of a person perfecting title by adverse
possessions is a mixed question of law and fact. The principle
of law in regard to adverse possession is firmly established. It
is well settled proposition that mere possessions of the land,
however, long it may be, would not ripe into possessory title
unless the possessor has 'animus possidendi" to hold that
land adverse to the title of the true owner. It is true that
assertion of title to the land in dispute by the possessor would
in an appropriate case, be sufficient indication of the animus
possidendi to hold adverse to title of the true owner. But such
an assertion of title must be clear and unequivocal thought it
need not be addressed to the real owner. For reckoning the
statutory period to perfect title by prescription both the
possession as well as animus possidendi must be shown to exist.
Where, however, at the commencement of the possession
there is no animus possidendi, the period for the purpose of
reckoning adverse possession will commence from the date
when both the actual possession and assertion of title by the
possessor are shown to exist". (Emphasis supplied)
31. In R.V Bhupal Prasad vs State of Andhra Pradesh and Others,
(1995) 5 SCC 698, the Court considered the status of a person who was
inducted as a tenant, and continued in possession of the property even after
the termination of lease with or without the consent of the landlord. It was
held that possession of such person may not be lawful but would be juridical
possession. Such person also cannot be ousted from the suit premises except
in accordance with law. In my view, the same would be the case of a
licensee, who was permitted to use and occupy the premises by the licensor,
and who has since passed away.
32. Reference may also be made to Hemaji Waghaji Jat Vs. Bhikhabhai
Khengarbhai Harijan & Others, (2009) 16 SCC 517. In this decision, the
Court analysed the concept of adverse possession and also referred to the
decisions of the Courts world over, to held that the Courts are taking an
unkind approach towards statutes of limitation overriding property rights.
The relevant extract from the said decision reads as follows:
"14. In Secy. Of State for India In Council v. Debendra Lal
Khan, AIR 1934 PC 23, it was observed that the ordinary
classical requirement of adverse possession is that it should be
nec vi, nec clam, nec precario and the possession required must
be adequate in continuity, in publicity and in extent to show
that it is possession adverse to the competitor.
15. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR
1957 Court 314, while following the ratio of Debendra Lal
Khan's case (supra), observed as under:
"4... ... ...But it is well-settled that in order to
establish adverse possession of one co-heir as
against another it is not enough to show that one
out of them is in sole possession and enjoyment of
the profits, of the properties. Ouster of the non-
possessing co-heir by the co-heir in possession
who claims his possession to be adverse, should be
made out. The possession of one co-heir is
considered, in law, as possession of all the co-
heirs. When one co-heir is found to be in
possession of the properties it is presumed to be
one the basis of joint title. The co-heir in
possession cannot render his possession adverse to
the other co-heir, not in possession, merely by any
secret hostile animus on his own part in
derogation of the other co-heirs' title. It is a settled
rule of law that as between co- heirs there must be
evidence of open assertion of hostile title, coupled
with exclusive possession and enjoyment by one of
them to be knowledge of the other so as to
constitute ouster."
The Court further observed thus:
"4 ... ... ...The burden of making out ouster is on
the person claiming to displace the lawful title of a
co-heir by his adverse possession."
16. In S.M. Karim v. Bibi Sakina, AIR 1964 Court 1254,
Hidayatullah, J. speaking for the Court observed as under:
"5... ... ... Adverse possession must be adequate in
continuity, in publicity and extent and a plea is
required at the least to show when possession
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."
17. The facts of R. Chandevarappa v. State of Karnataka,
(1995) 6 SCC 309, are similar to the case at hand. In this case,
this Court observed as under:
"11. The question then is whether the appellant
has perfected his title by adverse possession. It is
seen that a contention was raised before the
Assistant Commissioner that the appellant having
remained in possession from 1968, he perfected his
title by adverse possession. But the crucial facts to
constitute adverse possession have not been
pleaded. Admittedly the appellant came into
possession by a derivative title from the original
grantee. It is seen that the original grantee has no
right to alienate the land. Therefore, having come
into possession under colour of title from original
grantee, if the appellant intends to plead adverse
possession as against the State, he must disclaim
his title and plead his hostile claim to the
knowledge of the State and that the State had not
taken any action thereon within the prescribed
period. Thereby, the appellant's possession would
become adverse. No such stand was taken nor
evidence has been adduced in this behalf. The
counsel in fairness, despite his research, is unable
to bring to our notice any such plea having been
taken by the appellant."
18. x x x x x x x x x
19. x x x x x x x x x
20. In Karnataka Board of Wakf v. Govt. of India, (2004) 10
SCC 779 , this Court observed as under:
"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."
x x x x x x x x x x
21. In Saroop Singh v. Banto, (2005) 8 SCC 330, this Court
observed:
"29. In terms of Article 65 the starting point of
limitation does not commence from the date when
the right of ownership arises to the plaintiff but
commences from the date the defendant's
possession becomes adverse. (See Vasantiben
Prahladji Nayak v. Somnath Muljibhai Nayak,
(2004) 3 SCC 376)
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 Md. Mohammad Ali
v. Jagdish Kalita and Ors., (2004)1 SCC 271)"
22. x x x x x x x x x
23. This Court had an occasion to examine the concept of
adverse possession in T. Anjanappa v. Somalingappa, (2006) 7
SCC 570 . The Court observed that a person who bases his title
on adverse possession must show by clear and unequivocal
evidence that his title was hostile to the real owner and
amounted to denial of his title to the property claimed. The
Court further observed that:
"20 ... ... ... 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 supplied)
33. By now setting up the plea of adverse possession, the defendant is
clearly seeking to blow hot & cold at the same time, which is not permitted
to do in law. The defendant did not raise the plea of adverse possession in
the earlier litigation between the parties, as noticed hereinabove. His
defence was premised on his plea of title derived on the basis of the Will
dated 15.08.1992, and on the basis of his being the adopted son of late Smt.
Nirmal Satyendra Singh. Thus, he cannot be permitted to raise the said plea
at this stage. In Nawab Hussain (supra), the Supreme Court referred to
Devilal Modi Vs. Sales Tax Officer, Ratlam, AIR 1965 SC 1150, wherein
the Supreme Court had observed in respect of the doctrine of constructive
res judicata:
"This rule postulates that if a plea could have been taken by a
party in a proceeding between him and his opponent, he would
not be permitted to take that plea against the same party in a
subsequent proceeding which is based on the same cause of
action; ... ... ..."
34. In Nawab Hussain (supra), the Supreme Court applied the said
doctrine and observed:
"8. It is not in controversy before us that the respondent did
not raise the plea, in the writ petition which had been filed in
the High Court, that by virtue of clause (1) of Article 311 of the
Constitution he could not be dismissed by the Deputy Inspector-
General of Police as he had been appointed by the Inspector-
General of Police. It is also not in controversy that that was an
important plea which was within the knowledge of the
respondent and could well have been taken in the writ petition,
but he contended himself by raising the other pleas that he was
not afforded a reasonable opportunity to meet the case against
him in the departmental inquiry and that the action taken
against him was mala fide. It was therefore not permissible for
him to challenge his dismissal, in the subsequent suit, on the
other ground that he had been dismissed by an authority
subordinate to that by which he was appointed. That was
clearly barred by the principle of constructive res judicata, and
the High Court erred in taking a contrary view."
35. In any event, as analysed hereinabove, there is no force in the said
plea of "adverse possession" in view of the history of the litigation
undertaken by the parties.
36. A plea which is not tenable, or which is not statable, cannot come in
the way of the Court in decreeing the suit under Order XII Rule 6 CPC. I
had occasion to consider this aspect in another decision reported as M/s
Sunrise Construction Vs. M/s Veena Wahi, ILR (2009) VI Delhi 38. The
plaintiff had filed the suit to seek the relief of specific performance of an
agreement to sell executed by the defendant in favour of the plaintiff. The
execution of the agreement was admitted by the defendant. However, she
claimed in her defence that the said written agreement did not reflect the
complete consideration payable by the plaintiff under the agreement. This
Court rejected the said defence as being barred under Sections 91 and 92 of
the Evidence Act. In the aforesaid background, the Court observed:
"33. If the plaintiff has made its claim founded upon a
documented transaction and the execution of the document is
admitted, one of the fundamental concern of a court while
considering whether a case for passing of a decree under Order
12 Rule 6 CPC is made out or not, is that the defendant is given
ample opportunity to prove his pleaded defence. However, in a
case where defence itself is unstateable and/or is barred under
some law, it is a case of "no defence" and in my view it is not
necessary to drag the suit. The court can proceed to decide the
matter on its merits... ... ...
x x x x x x x x x
37 ... ... ... There is no reason why the Court cannot cut short
the procedure in a case like the present, which is founded upon
an admitted document, and the defence is found to be
unstateable, unsustainable and barred under the laws of
evidence and in equity.
38. When no material issues of fact arise from the pleadings
of the parties, merely because legal issues remain to be
determined the Court may not postpone the decision of the legal
issues till after the conduct of a meaningless trial. Looking to
the burgeoning dockets of the Courts, I feel the Court should
seize the opportunity at the earliest to examine whether
material triable issues of fact arise which would require a trial,
or whether the suit can be decided on the basis of the admitted
facts by application of established legal principles. The
prescribed procedures have been evolved to serve as the hand
maids of justice; to comply with the rules of natural justice, and
a routine adherence to procedure in the facts of a given case
may not necessarily be called for and may work injustice to one
of the parties. However, departure from the uniform procedure
would require the existence of justifiable reasons in a given
case. If justifiable reasons exist, the procedures cannot weigh
down the progress and disposal of a cause. I may refer to the
decision of the Division Bench of this Court in 142 (2007) DLT
483 (DB) Viiava Myne v. Satva Bhushan Kaura. The Division
Bench summarized the purpose and objective of enacting Order
12 Rule 6 CPC, which enables the court to pronounce judgment
and save parties from going through the rigmorale of a
protracted trial. The Division Bench held:
"The admission can be in the pleadings or otherwise, namely in
documents, correspondence etc. These can be oral or in
writing. The admissions can even be constructive admissions
and need not be specific or expressive which can be inferred
from the vague and evasive denial in the written statement
while answering specific pleas raised by the plaintiff. The
admissions can even be inferred from the facts and
circumstances of the case. No doubt, for this purpose, the Court
has to scrutinize the pleadings in their detail and has to come to
the conclusion that the admissions arc unequivocal, unqualified
and unambiguous. In the process, the Court is also required to
ignore vague, evasive and unspecific denials as well as
inconsistent pleas taken in the written statement and replies.
Even a contrary stand taken while arguing the matter would be
required to be ignored.""
37. The plaintiffs, admittedly are the Class-I heirs of the deceased owner
late Smt. Nirmal Satyendra Singh. On the other hand, the defendant has no
right, title or interest therein. He is, therefore, bound to vacate the same as
desired by the plaintiffs. In the light of the aforesaid, no triable issue arises
so far as the relief of possession is concerned. Consequently, the application
is allowed. A partial decree for possession is passed in favour of the
plaintiffs and against the defendant in respect of the suit property i.e. i.e. flat
having three floors with lawn and terrace and four servant quarters in
property no.27, Rajpur, Delhi, shown in red colour in the site plan attached
with the plaint.
CS(OS) 2453/2015
38. By the aforesaid order, the application under Order 12 Rule 6 CPC
has been allowed. The only claim that remains to be adjudicated is the claim
for mesne profits/ damages.
39. The aforesaid being the only aspect, the following issues are framed:
i) Whether the plaintiff is entitled to claim damages during the
period that the defendant remained in possession from the date
of filing of the suit till possession is delivered to the plaintiff
and, if so, at what rate and for what period? OPP
ii) If the above issue is decided in favour of the plaintiff, whether
the plaintiff is entitled to interest on the aforesaid amount? OPP
40. The plaintiff shall file the list of witnesses within four weeks and the
affidavit by way of evidence towards examination in chief of its witnesses
within six weeks. List the matter before the Joint Registrar on 01.08.2016
for fixing dates for recording evidence.
VIPIN SANGHI, J
MAY 03, 2016
SR/B.S. Rohella
