Delhi High Court
Banwari Lal (D) By Lrs. And Anr. vs Balbir Singh on 4 November, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.100/2008
% 4th November, 2016
BANWARI LAL (D) BY LRS. AND ANR. ..... Appellants
Through: Mr. Vivek B. Saharya, Advocate
with Mr. Viresh B. Saharya,
Advocate.
versus
BALBIR SINGH ..... Respondent
Through: Mr. Santosh Kumar, Advocate with
Mr. Rajiv Ranjan Mishra, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) is filed by the defendants in the suit against the
Judgment of the First Appellate Court dated 4.2.2008 whereby the first
appellate court decreed the suit for declaration and injunction filed by the
respondent/plaintiff with respect to claim of ownership and possession of
the suit property being plot nos.5,6 and 7 out of Rectangle no.42, Kila 5/1,
situated in the area of village Karawal Nagar in the abadi of Prem Nagar
Extension, Illaqa Shahdara, Delhi. The first appellate court by its impugned
judgment set aside the Judgment of the Trial Court dated 23.9.2005
dismissing the suit for declaration for declaring the respondent/plaintiff as
the owner in possession of the suit property and injuncting the
appellants/defendants from disturbing the settled possession of the
respondent/plaintiff. The original defendants in the suit died pendente lite
and they are now represented by appellants who are their legal heirs.
Reference to defendants will include reference to the appellants who are
their legal heirs.
2. The facts of the case are that the respondent/plaintiff claimed
ownership of the suit property on the ground that the suit property was
originally owned by one Sh. Ram Prashad. Sh. Ram Prashad sold rights in
the suit property by way of usual documentation being the Agreement to
Sell, General Power of Attorney etc dated 8.3.1982 in favour of Smt. Prem
Lata and Sh. Chander Prakash who constructed a boundary wall and a room
over the suit property in April, 1982. Smt. Prem Lata and Sh. Chander
Prakash sold the suit property along with the super structure vide
documentation dated 25.9.1985 being the Agreement to Sell, General Power
of Attorney etc to the respondent/plaintiff and since then the
respondent/plaintiff is in the possession of the suit property.
Respondent/plaintiff further pleaded that though by documentation dated
25.9.1985 area of 600 sq. yds was sold to him, however, on measurement at
the spot the area came out to be lesser of 527 sq. yds only. Accordingly, the
respondent/plaintiff claimed the relief of declaration of ownership of the suit
property in his favour and that he was in lawful settled possession of the
property.
3(i) The appellants/defendants contested the suit and denied the
ownership of the respondent/plaintiff of the suit property. The
appellants/defendants pleaded that they are in fact the owners of the suit
property and that they have constructed the boundary wall and the room.
(ii) At this stage, this Court would like to observe that in the entire
written statement filed by the appellants/defendants, there is no reference as
to how the appellants/defendants became the owners of the suit property i.e
by which documentation, of which date, and from whom. Also, the only
plea in the written statement was denial of ownership of the suit property of
the respondent/plaintiff. Also, in the written statement there was no such
issue raised that the suit property is not the suit property as stated in the
plaint.
4. After pleadings were complete, the trial court on 04.01.1995
framed the following issues:-
"(i) Whether the plaintiff is the actual owner of the suit property? OPP.
(ii) Whether the defendants is owner of the suit property as alleged in
written statement? OPD.
(iii) Whether the plaintiff is in possession of suit property? OPP.
(iv) Whether the plaintiff is entitled to relief claimed? OPP.
(v) Relief."
5. The Trial Court by its Judgment dated 23.9.2005 held that the
respondent/plaintiff failed to prove ownership of the suit property because
an agreement to sell and general power of attorney cannot confer title rights
in an immovable property. As regards issue no.2, it was held by the trial
court that even the appellants/defendants failed to prove their ownership of
the suit property. Trial court, however, held that the respondent/plaintiff
was in possession of the suit property.
6. The first appellate court while allowing of the appeal by its
impugned judgment has made the following salient observations and drawn
the following conclusions:-
(i) Appellants/defendants proved no documents to prove their claim of
ownership of the suit property, and even if the copies of the documents filed
by the appellants/defendants are looked into, the same show the claim of
ownership of only 125 sq. yds whereas the suit property as per the
documentation of the respondent/plaintiff was of 600 sq. yds.
(ii) Appellants/defendants claimed to have been dispossessed by the
respondent/plaintiff from the suit property on 20.11.1985 as per the
statement of Sh. Swaraj/DW1/defendant no. 2, however, the subject suit was
filed on 13.8.1986 i.e. after six months and the appellants/defendants did not
file any suit for possession within the period of six months from
dispossession under Section 6 of the Specific Relief Act, 1963. This aspect
and conclusion is further buttressed by the first appellate court by holding
that although the appellants/defendants claimed to have been dispossessed
on 20.11.1985, no suit for possession was filed by the appellants/defendants
till the time the appeal was decided in 2008, and which would be a period of
about 22 years, and therefore, the respondent/plaintiff in any case would be
the owner by law of prescription and adverse possession as against the
appellants/defendants.
(iii) The first appellate court also noticed that an Application dated
17.10.1996 for amendment of the written statement was filed by
appellants/defendants to add the counter claim for possession and damages
against the respondent/plaintiff, and which application filed after more than
10 years of filing of the suit and 11 years from the date of the alleged
tresspass was dismissed vide Order dated 28.1.1997, and that there was no
challenge to that Order dated 28.1.1997 by which the application for
amendment of the written statement was dismissed.
7. It is therefore seen that on the one hand the respondent/plaintiff
has proved the documentation for claiming rights in his favour under
Section 202 of the Indian Contract Act with respect to the suit property
being the general power of attorney Ex.PW1/2 executed in his favour by the
earlier owners Smt. Prem Lata and Sh. Chander Prakash and who had
themselves purchased from the earlier owner Sh. Ram Prashad, the
appellants/defendants, on the other hand, not only laid out a totally vague
written statement by not stating as to how and when and by which
documentation the appellants/defendants became the owners of the suit
property, but that even in the evidence led on behalf of the
appellants/defendants, no documentary evidence was proved to show
ownership of the appellants/defendants of the suit property. In fact,
appellants/defendants did not claim ownership of the suit property, but
claimed ownership of another property which is stated to be in rectangle no.
48. Also, the documentation of claim of title of the appellants/defendants,
even if looked into, was only for 125 sq. yards and not for 600 sq. yds/527
sq. yds and which is the area of the suit property. Trial court wrongly held
that the documentation dated 25.9.1985 cannot confer rights in the suit
property in favour of the respondent/plaintiff inasmuch as the
documentation in favour of the respondent/plaintiff are prior to 24.9.2001
and only whereafter the agreement to sell in the nature of part performance
under Section 53A of Transfer of Property Act, 1882 required ad valorem
stamping and registration. The issue is surely covered in favour of the
respondent/plaintiff in terms of the ratio of the judgment of this Court in the
case of Shri Ramesh Chand Vs. Suresh Chand and Anr., 188 (2012) DLT
538, and which judgment also deals with the rights arising under Section
202 of the Indian Contract Act, 1872 with respect to a general power of
attorney.
8. In view of the above, it is seen that the first appellate court has
rightly reached its conclusions on the basis of a valid reasoning of the
respondent/plaintiff being in settled possession when the subject suit was
filed, and that the respondent/plaintiff having proved his claim of title rights
in the suit property as per general power of attorney Ex.PW1/2 which gives
rights under Section 202 of the Indian Contract Act, the
appellants/defendants pleaded only vaguely in the written statement the
claim of ownership without any details and did not even prove the alleged
ownership, and finally that till 22 years after the alleged dispossession of the
appellants/defendants from November, 1985 till 2008 when the first appeal
was decided, no suit for possession was filed by the appellants/defendants
against the respondent/plaintiff for possession and hence the
respondent/plaintiff would become the owner by law of prescription and
adverse possession. I would like to note that today is now about 31 years
from November, 1985 and yet no suit has been filed by the
appellants/defendants against the respondent/plaintiff for possession and
which they could have always done even if their application for amendment
of the written statement to include the relief of counter claim of possession
and damages was dismissed vide Order dated 28.1.1997.
9. No substantial question of law arises for this Regular Second
Appeal to be entertained. The second appeal is accordingly dismissed,
leaving the parties to bear their own costs.
NOVEMBER 04, 2016 VALMIKI J. MEHTA, J
Ne/AK
