Harish Relan vs Kaushal Kumari Relan
2017 Latest Caselaw 338 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+           RFA 705/2016 and CM APPL. 33911/2016 (stay)
                                            Reserved on:        16.01.2017
                                            Date of decision:   19.01.2017

IN THE MATTER OF:
HARISH RELAN                                          ..... Appellant
                         Through: Mr. K.V. Balakrishnan, Advocate

                         versus

KAUSHAL KUMARI RELAN                         ..... Respondent
                Through: Mr. Vivek Singh, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

1. A mother, called by any name, in any language, whether as "Ma, Amma, Aayi, Mai, Ammee" in India or as "Madre, Mamma, Moer and Mana" and several others dialects in foreign lands, is universally acknowledged as a symbol of pure and unconditional love for her offsprings. The sanskrit shloka from the Hindu Epic, Ramayana, uttered by Lord Ram, epitomizes the stature of a Mother in our country and treats her at par with the Almighty and the Mother Land in the following words :

"Janani Janma bhoomischa Swarga diapi Gariyasi"

(Translation : Mother and Motherland are greater than Heaven.) The debt that a child owes to his mother, who is not only the

procreater and the rearer, but also a lifelong teacher, mentor, healer and guide, is embodied in the following sanskrit shloka :

"Matridevim Namastubhya Mam Janmdatrim twam Namo Namah Balyakale Ma Palan Kritva Matrakabhyo twam Namamyaham." (Translation: I salute my mother, who gave me birth; I also salute my other mother (woman) who added knowledge and wisdom to my actions and life to make me a good human being.)

2. The love for her child that beats in a mother‟s heart, has been aptly characterized by Swami Vivekananda as a "colourless love that knows no barter, a love that never dies". Mahatama Gandhi has paid homage to a mother‟s affection for her child in the following words:

"Seeing God face to face is to feel that He is enthroned in our hearts, even as a child feels a mother‟s affection without needing any demonstration".

3. For centuries, a Mother has been held in high esteem in our society and cherished for her devotion and affection for her children. She is the fulcrum of the family unit, constantly working towards binding family members together with her selfless dedication, open heartedness and unstinting loyalty. She evokes strong and positive emotions in her children that range from adoration to admiration, sheer awe to eternal gratitude. Rooted in this ethos and robust cultural values, is the sad saga of the respondent/plaintiff, a 94 years old widow, bed ridden due to several ailments, and kept out of her own home and hearth for sixteen long years by none other than her own son, the appellant/defendant herein who has dragged her into litigation spanning over a decade.

4. The present appeal arises from an order dated 14.05.2016, passed by the learned ADJ in a suit for eviction and possession instituted by the respondent/plaintiff, against her son, the appellant/defendant. The impugned judgment on admissions has been pronounced by the learned ADJ on an application filed by the respondent/defendant under Order XII Rule 6 CPC.

5. Having regard to the chequered history of the litigation between the parties, it is considered imperative to narrate the sequence of events that ultimately compelled the respondent/plaintiff to institute a suit for eviction and possession against her son in respect of the third floor of premises bearing No.N-18, Jangpura Extension, New Delhi.

6. When instituting the suit in the early part of 2015, the respondent/plaintiff had averred in the plaint that she is a 92 years old widow, had undergone a major heart surgery and is bed ridden. She and her husband, late Shri Aishi Lal Relan have four children, two sons and two daughters. One of the sons, who had not got married, had expired on 23.8.2014. Out of the two daughters, one had got widowed and the other was unmarried and unemployed and lived with the respondent. The appellant is a banker and has a working wife. The respondent‟s husband was allotted the subject plot by the Government, vide lease deed dated 14.12.1960 and he had constructed a ground floor on the property where he was residing with the respondent/plaintiff and their children. Sh. Aishi Lal Relan had expired on 25.6.1989, leaving behind the respondent/plaintiff and four children.

7. In the year 1999, all the children of the respondent/plaintiff, including the appellant/defendant herein, had executed a Relinquishment Deed dated 18.11.1999, relinquishing their rights in the subject premises in her favour.

On 3.3.2000, all the children of the respondent/plaintiff, including the appellant/defendant herein, had executed a Rectification Deed in respect of the Relinquishment Deed, which was duly registered. On the basis of the aforesaid documents, L&DO had transferred the suit premises in the name of the respondent/plaintiff, by executing a Conveyance Deed dated 7.2.2001. Subsequently, the suit premises was converted by the respondent from leasehold to freehold property. Pertinently, it was the appellant/defendant who had signed the said Conveyance Deed, as a witness.

8. In the year 1999, the respondent/plaintiff decided to demolish the existing construction and raise fresh construction comprising of basement, ground floor, first floor, second floor and a third floor in the subject premises. A contractor was engaged by her to undertake the construction activity that was completed in the year 2000, for which the respondent/plaintiff herein had to take loans from various agencies, including friends and family members. After the building was constructed, the respondent/plaintiff shifted to the ground floor and started residing there.

9. It has been further averred in the plaint that in January, 2001, the appellant/defendant approached the respondent/plaintiff with a request to shift to the third floor of the premises for a short time on the ground that the tenanted premises that he and his family was occupying, had to be vacated. As he undertook to vacate the said floor within a period of four to six months, the respondent/plaintiff acceded to the said request and permitted the appellant and his family to reside on the third floor of the premises for a period of four to six months. This concession given to the appellant by his mother, turned out to be the trigger point for the litigation between the

parties.

10. Since the respondent/plaintiff had no other source of income and was not in a position to return the amounts she had borrowed for raising the construction, she had to sell the second floor of the suit premises on 4.3.2002, and the first floor in December, 2004. Even after doing so, a part of the loan amount remained outstanding. As a result, in the year 2005 the respondent/plaintiff requested the appellant/defendant to vacate the third floor with the idea of selling the same and clearing the remaining loan amount while retaining some money to meet her day to day expenses. When the appellant/ defendant refused to comply, the respondent/plaintiff was left with no other option but to vacate the ground floor occupied by her and her unmarried daughter and sell it on 16.8.2005. The appellant/plaintiff remained defiant and continued to occupy the third floor. With no other roof on their head, the respondent/plaintiff and her daughter had to shift to a tenanted premises in the neighbourhood.

11. The appellant/defendant fired the first salvo against his mother and siblings in the year 2006, by instituting a suit in the High Court claiming partition, declaration and permanent injunction in respect of the entire premises [CS(OS) No.724/2006]. He also impleaded the purchasers of the ground, first and second floors as co-defendants in the said suit. The prayer clause in the suit reads as follows :-

"a) Property bearing No.N-18, Jangpura Extension, New Delhi- 110014 may please be ordered to be partitioned by giving 1/5th share each to plaintiff and defendants No.1 to 4.

b) Preliminary decree for declaration may please be ordered to be passed declaring Relinquishment Deeds dated 18.11.99, Rectification Deed dated 30.3.2000 and Sale Deeds dated 4.3.2002, 3.12.2004 and

16.8.2005, to be null and void.

c) A decree for permanent injunction be also passed in favour of the plaintiff and against defendants restraining the defendants from interfering in the possession of the plaintiff in the third floor of property bearing N-18, Jangpura Extension, New Delhi.

d) Cost of the application be also awarded."

12. One of the preliminary issues framed in the aforesaid suit was with regard to it being barred by limitation and the onus to prove the same was placed on the respondent (defendant No.1 therein). The suit was adjourned to 28.4.2014 for counsels for the parties to address arguments on the preliminary issues. In the meantime, the plaintiff therein (appellant herein) filed an application under Order VI Rule 17 CPC, for seeking amendment of the plaint. On 02.05.2014, the learned Single Judge expressed an opinion that counsel for the plaintiff ought to first address arguments on the maintainability of the suit and observed that only if the same is shown to be maintainable, will the amendment application be considered.

13. Aggrieved by the aforesaid order dated 02.5.2014, the plaintiff therein (appellant herein) filed an intra-court appeal, registered as FAO(OS) 295/2014, which was disposed of by the Division Bench vide order dated 03.09.2014, with directions issued to the learned Single Judge to decide the pending amendment application. Finally, by an elaborate judgment dated 28.11.2014, exercising his suo moto powers under Order VII Rule 11 CPC the learned Single Judge rejected the plaint on the ground that the suit instituted by the plaintiff was barred by limitation. The operative paras of

the judgment dated 28.11.2014 are apposite and are reproduced herein below:-

"23. In the present case, the documents available on record show that the plaintiff and other legal heirs of Sh.Aishi Lal Relan have executed relinquishment deed dated 18th November, 1999 in favour of defendant No.1 and rectification deed dated 30th March, 2000. The plaintiff is also the witness to the first sale deed dated 4th March, 2002 for second floor by the defendant No.1 in favour of the defendant No.7. After the execution of the said document, the entire property was transferred in the name of the defendant No.1 by conveyance deed dated 7th February, 2001 in the office of L&DO. The plaintiff in the conveyance deed also signed as a witness. It is undisputed fact that the plaintiff at his own willingness has transferred the entire rights in the name of the defendant No.1. It is also undisputed that the plaintiff has got full knowledge about the purchase of the property by the defendants No.5 to 7 from the defendant as he was residing in the same building. Thus, the present suit was filed in April, 2006 in which the plaintiff is seeking declaration declaring the relinquishment deeds dated 18th November, 1999, rectification deed dated 30th March, 2000 and sale deeds dated 4th March, 2002, 3rd December, 2004 and 16th August, 2005 to be null and void and the suit filed by him for partition be decreed and an order be passed for partitioning the suit property by giving 1/5th share to the plaintiff and the defendants No.1 to 4.

24. In the present suit, the declaration sought by the plaintiff is barred by time on the face of the documents. Thus, the suit filed by the plaintiff is barred by limitation. The relinquishment deed was executed in favour of the defendant No.1 on 18th November, 1999. The present suit is filed in 2006 i.e. after about more than six and half years. Thus, the submission of the counsel cannot be accepted. It appears to the Court from all the angles, i.e. from the date of relinquishment deed or from the dates of three sale deeds executed in favour of defendants No.5 to 7, the suit filed by the plaintiff is not within time.

25. From the above mentioned facts and settled law, it is clear that the suit is time barred as admittedly the plaintiff has denied the execution of relinquishment deed in the year 1999. Subsequently, when the other floors were sold, the plaintiff had full knowledge and even the plaintiff was the witness to the said transaction. On the face of said registered documents which are not denied and cannot be denied by the plaintiff. The plaintiff is not entitled to cover up such delay on flimsy reasons which have no application in law. Once the suit is time barred the application for amendment is not maintainable. The suit and the application being I.A. No.8296/2014 under Order 6 Rule 17 CPC is dismissed. The interim order dated 1st May, 2006 is vacated by allowing the application under Order 39 Rule 4 CPC by the defendant No.1 who is declared to be the owner of the property of N-18, Jangpura Extension, Delhi-110014." (emphasis added)

14. Aggrieved by the aforesaid judgment, the plaintiff (appellant herein) filed an appeal [RFA(OS) No.162/2014], that was dismissed by the Division Bench by an equally detailed judgment dated 3.8.2015, that has painstakingly discussed the primary grievance of the appellant that the learned Single Judge had erred in dismissing his application for seeking amendment of the plaint and thereafter the court had proceeded to examine the said application on merits and concluded that the same was nothing but an attempt on the part of the appellant to set up an entirely new case and withdraw the admissions already made by him in the original plaint. It was also observed by the Division Bench that the proposed amendments to the plaint were patently barred by limitation. Further, the view taken by the Single Judge that the suit as instituted by the plaintiff (appellant herein) was barred by limitation, was endorsed in the appeal. Before parting with the said case, taking into consideration the constant harassment faced by the mother (respondent herein) at the hands of her son (the appellant) and

describing the litigation initiated by him as malafide, in addition to litigation expenses assessed at Rs.25,000/- and held to be payable by the appellant to his mother and siblings collectively, as also to the other respondents, further costs @ Rs.25,000/- were directed to be paid by him to each of the seven respondents arrayed in the appeal. Lastly, holding that the appellant had committed an offence by making false claims on affidavit, which is punishable in law, proceedings under Section 340 Cr.PC were directed to be launched against him.

15. The aforesaid decision was challenged in an appeal preferred by the appellant before the Supreme Court [SLP(C) No.36127/2015]. Vide order dated 8.1.2016, the said SLP was dismissed with an observation that no grounds for interference had been made out. Not satisfied by the aforesaid decision, the appellant filed a review petition, which suffered the same fate vide order dated 27.4.2016. Thus it took an entire decade for curtains to be drawn on the first round of litigation that was set into motion by the appellant/defendant against his mother in the year 2006. In all this duration, the appellant continued occupying the third floor of the suit premises without paying a penny toward use and occupation charges whereas, the respondent herein and her unmarried and unemployed daughter had no option but to reside in a tenanted premises in the vicinity. The respondent has averred in the plaint that after the judgment dated 28.11.2014 was passed, dismissing the suit instituted by the appellant, she had requested him to vacate the suit premises, but he had flatly refused to do so.

16. Facing intense resistance from the appellant, in February, 2015, the respondent/plaintiff was compelled to institute a suit for eviction and possession against him in the High Court. In the said suit, reference was

made to the decision of the Single Judge in the earlier suit filed by the appellant. Pertinently, at that time, the intra count appeal filed by the appellant/defendant was still pending consideration.

17. The appellant/defendant was served with the summons in the suit and he filed a written statement raising several preliminary objections. Two of the preliminary objections that need to be particularly mentioned, are of adverse possession and that the suit is barred by limitation.

18. On 26.10.2015 the pecuniary jurisdiction of the High Court was raised to Rs.2.00 crore and above and resultantly, the present suit, that was valued at Rs.40.00 lacs, was transferred for further proceedings to the District Court. On 23.3.2016, while considering an application filed by the respondent/plaintiff under Order XV Rule 1(A) of the CPC, the trial court had expressed an opinion that the suit for possession could be decreed in view of the pleading of the parties. At the request of the learned counsel for the appellant/defendant, the case was put up for arguments on 30.4.2016 and judgment was pronounced on 14.5.2016.

19. On examining the admitted pleadings of the parties and the previous history of their inter se litigation, vide judgment dated 14.5.2016, the learned trial court arrived at the conclusion that the respondent/plaintiff is entitled to a decree for possession in respect of the third floor of the suit premises on the basis of admissions made by the appellant/defendant. Aggrieved by the aforesaid decision, the appellant/defendant has filed the present appeal.

20. The impugned judgment has been assailed on two counts. Firstly, that the trial court had erred in passing the judgment on admissions under Order XII Rule 6 CPC when there were no categorical and unequivocal admissions

made by the appellant/defendant in the pleadings and that the provisions of Order XII Rule 6 CPC are not a matter of right, but a matter of discretion of the Court, which ought not to have been exercised in favour of the respondent/plaintiff in the facts and circumstances of the present case. Mr. K.V. Balakrishnan, learned counsel submitted that the averments made by the appellant/defendant in his written statement ought to have been examined by the trial court in totality instead of picking and choosing some statements in isolation and reading them out of context. The second plea taken is that the appellant/defendant had raised various triable issues in the written statement and in the light of the proviso to Order VIII Rule 5 CPC, he ought to have been afforded an opportunity to prove his defence by leading evidence. Learned counsel argued that the defences taken by the appellant included that of adverse possession and limitation which, could not have been adjudicated without a proper trial. To buttress his arguments, learned counsel for the appellant/defendant had cited the following decisions:-

1. Raj Kumar Chawla vs. Lucas Indian Services, AIR 2006 Delhi 266,

2. Himani Alloys Ltd. vs. Tata Steel Ltd., (2011) 15 SCC 273.

3. Gurdwara Sahib vs. Gram Panchayat Village Sirthala & Anr.

(2014) 1 SCC 669.

21. Per contra, Mr. Vivek Singh, learned counsel for the respondent/plaintiff supported the impugned judgment and stated that no ground was made out for interference. He drew the attention of the Court to the previous history of litigation between the parties and stated that upto the

year 2005, even as per his own version, the appellant/defendant had remained in permissive possession of the suit premises when the respondent/plaintiff had asked him to vacate the same. As a consequence, he is now estopped from taking the plea of adverse possession. Even otherwise, in the earlier suit instituted by the appellant, in respect of the entire premises, he had sought the relief of partition to the extent of 1/5th share as a legal heir of late Shri Aishi Lal Relan, on the ground of an alleged oral family settlement arrived at between family members, whereunder it was agreed that he would be entitled to one floor in the suit premises. Learned counsel argued that it is settled law that the pleas of adverse possession and a claim to the title of property are mutually inconsistent and self destructive and cannot be taken simultaneously. Reference was also made to the averments of the appellant/defendant in the written statement to canvass that nowhere did he state as to when had his possession become hostile to the respondent/plaintiff and nor has he furnished any other material information to back his claim of adverse possession.

22. In support of his submission that two mutually contradictory and self- destructive defences cannot be available to the appellant/defendant, learned counsel for the respondent had referred to and relied upon the following decisions :

1. Arundhati Mishra (Smt.) vs. Sri Ram Charitra Pandey, (1994) 2 SCC 29;

2. Konda Lakshmana Bapuji vs. Govt. of AP & Ors., (2002) 3 SCC 258;

3. Karnataka Board of Wakf vs. Govt. of India & Ors., (2004) 10 SCC 779;

4. T. Anjanappa & Ors. vs. Somalingappa & Anr., (2006) 7 SCC 570; and

5. Maria Margarida Sequeira Fernandes & Ors. vs. Erasmo Jack DE Sequeira (dead) through LRs, (2012) 5 SCC 370

23. As for the objection of limitation taken by the appellant/defendant in the written statement, counsel for the respondent/plaintiff submitted that assuming without admitting that the plea of adverse possession could be available to the appellant/defendant, at best, his possession could be treated as hostile to the respondent/plaintiff only in the year 2006, when he had instituted a suit for partition against his mother and siblings and others. Reckoned from the said date, the period of 12 years available under Article 65 of Schedule I of the Limitation Act, 1963 would have ended in the year 2018, and the present suit was instituted by the respondent/plaintiff in the year 2015. Therefore, the said suit is not barred by limitation.

24. Counsel for the respondent/plaintiff contended that the trial court was well entitled to invoke the provisions of Order XII Rule 6 CPC in the facts of present case and pronounce a judgment on the basis of admissions made by the appellant/defendant in his written statement and it was equally empowered to take cognizance of the previous litigation between the parties in respect of the very same premises and arrive at the conclusion that the suit for possession instituted by the respondent/plaintiff deserved to be decreed against her son, the appellant herein.

25. This Court has considered the rival submissions of the learned counsel for the parties, carefully examined the pleadings in the suit which has given

rise to the present appeal as also the pleadings in the earlier suit instituted by the appellant/defendant against his mother, the respondent/plaintiff as well as the orders passed therein including those of the learned Single Judge, the Division Bench and the Supreme Court.

26. There is no dispute with the settled principles of civil jurisprudence that a judgment on admissions is not a matter of right and rather, it is a matter of discretion of a court, as has been observed in the cases of Raj Kumar Chawla (supra) and Himani Alloys (supra), relied upon by learned counsel for the appellant. It is however, considered necessary to highlight the object of including Rule 6 to the provision of Order XII in the CPC by way of an amendment. The scope and ambit of Order XII Rule 6 CPC was discussed by the Supreme Court in the oft quoted case of Uttam Singh Duggal & Co. Ltd. vs. United Bank of India and Ors. reported as (2000) 7 SCC 120, where it was observed as below:-

"12. As to the object of the Order XII 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 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." (emphasis added)

27. In the case of I.T.D.C. Ltd. vs. Chander Pal Sood & Son reported as 84 (2000) DLT 337 (DB), a Division Bench of this Court had interpreted the provisions of Order XII Rule 6 CPC as below:-

"17. .....Order 12 Rule 6 of the Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application of any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing..."

28. Another Division Bench of this Court had the occasion to interpret the expression „otherwise‟, as used under Order XII Rule 6 CPC in the case of Rajiv Srivastava vs. Sanjiv Tuli and Anr. reported as AIR 2005 Delhi 319, wherein the following observations were made:-

"10. The use of the expression 'otherwise' in the aforesaid context came to be interpreted by the Court. Considering the expression the Court had interpreted the said word by stating that it permits the Court to pass judgment on the basis of the statement made by the parties not only on the pleadings but also dehors the pleadings i.e. either in any document or even in the statement recorded in the Court. If one of the parties' statement is recorded under Order 10 Rules 1 & 2 of the Code of Civil Procedure, the same is also a statement which elucidates matters in controversy. Any admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and the Court can proceed to pass judgment on the basis of the admission made therein.................." (emphasis added)

29. In the case of Nagindas Ramdas vs. Dalpatram Ichharam @ Brijram and Ors. reported as (1974) 1 SCC 242, the Supreme Court had highlighted the fact that admissions made in judicial proceedings themselves can form the basis of granting relief under Order XII Rule 6 CPC for the reason that a judicial admission is placed on a much higher footing than any evidentiary admissions. The aforesaid view was expressed by the Supreme Court in the following words:-

"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself, Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong." (emphasis added)

30. In Shikharchand and Ors. vs. Mst. Bari Bai and Ors. reported as AIR 1974 MP 75, it was held that a judgment under Order XII Rule 6 CPC can

be based on a statement made by the parties de hors the pleadings and such admissions could be either express or constructive. The aforesaid view was reiterated by a Single Judge of this Court in the case of K.N. Construction vs. JVG Finance Ltd. reported as 111 (2004) DLT 437. It would also be beneficial to quote the following observations of the Division Bench of this Court in the case of Delhi Jal Board vs. Surendra P. Malik reported as 104 (2003) DLT 151:-

"9. The test, therefore, is (i) whether admission of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defence 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." (emphasis added)

31. As can be seen from the view taken in the above decisions and a series of judicial pronouncements on similar lines, the underlying object of Order XII Rule 6 CPC is to enable the parties to obtain speedy justice. This Court had observed in the case of Tirath Ram Shah Charitable Trust and Ors. vs. Sughra Bi @Sughra Begum(Decd.) reported as 225 (2015) DLT 666, that the object of Order XII Rule 6 CPC is that once there are categorical admissions of facts made by a party, then the litigation should not be permitted to linger on unnecessarily and in appropriate cases, on an application filed by a party under Order XII Rule 6 CPC, asking for a decree on the basis of the said admissions, the court ought to exercise its discretion

and bring an end to such litigation by passing appropriate orders. Such admissions can be express or implied. They can be a part of the pleadings or judicial admissions. However, the facts of each case have to be examined for applying the law laid down above.

32. To test the submissions made by learned counsel for the appellant/defendant on the anvil of the settled judicial precedents, it is considered necessary to refer to the relevant pleadings not only in the present suit instituted by the respondent/plaintiff against her son, but also in the previous suit for partition instituted by the appellant/defendant against his mother to examine whether or not there are clear/unambiguous admissions made by the appellant/defendant for passing a judgment on admission. The observations made by the Single Judge and the Division Bench, while dismissing the appellant suit and appeal will also have a bearing in so far as the appellant‟s conduct is concerned.

33. The undisputed facts as culled out from the pleadings in the suit for partition, declaration and permanent injunction instituted by the appellant/defendant against his mother, siblings and the owners of separate floors of the suit premises in April 2006, are that Shri Aishi Lal was allotted the subject plot by the Govt. Shri Aishi Lal expired on 25.06.1989, leaving behind five legal heirs, namely, his widow (the respondent/plaintiff) and four children (two brothers and two sisters). The appellant‟s brother, who was unmarried, expired during the pendency of the partition suit. One of the sisters, Smt. Promila Kapoor was married to a resident of USA, who expired and on his demise, she shifted back to India. The third sister, Ms. Pooja Relan is unmarried and unemployed and living with her mother, the respondent/plaintiff, who relies on her as a care giver.

34. The documents filed by the appellant/defendant alongwith the partition suit instituted by him reveal that Smt. Promila Kapoor had executed a General Power of Attorney dated 27.08.1999 at USA, duly stamped in India, appointing her sister, Smt. Pooja Relan as her attorney to execute a relinquishment deed on her behalf, relinquishing all her rights, title and interest in the suit property in favour of their mother, the respondent/plaintiff herein. The appellant/defendant had also filed a copy of the registered Relinquishment Deed dated 18.11.1999, whereby he and his siblings had relinquished their 1/5th undivided share each in the suit premises unconditionally and absolutely in favour of their mother, the respondent/plaintiff. All the legal heirs including the appellant/plaintiff had declared in the said Relinquishment Deed that "the executor(s) wishes/wish to relinquish his/their share in the plot as mentioned herein above in favour Smt. Kaushal Kumari Relan the releasee(s) who is/are also the legal heirs of the allottee." The appellant/defendant and his siblings also made an unconditional declaration in the Relinquishment Deed that they have "no claim, right or interest in the property".

35. The aforesaid Relinquishment Deed dated 18.11.1999 was followed by a Rectification Deed dated 30.03.2000 also filed by the appellant/defendant in the suit instituted by him, which was executed by him and his siblings to overcome a mistake in the Relinquishment Deed dated 18.11.1999 that had erroneously recorded that Smt. Promila Kapoor, who was then residing in USA and was represented by her attorney and sister, Ms. Pooja Relan, was executing the Deed in person. In the Rectification Deed, the parties had clarified the position and reiterated the contents of the

Relinquishment Deed in the following terms:-

"2. That the same is hereby rectified and modified as aforesaid in the Relinquishment Deed and the Relinquishment Deed shall remain in full force and effect."

36. Based on the aforesaid Relinquishment Deed and the Rectification Deed executed by the appellant/plaintiff and his three siblings, on 16.05.2000, the Land & Building Office, Govt. of India had substituted the name of the respondent/plaintiff as the sole owner of the suit premises in their records. This was followed by execution of a Conveyance Deed dated 04.01.2011, by the Competent Authority in favour of the respondent/plaintiff, converting the leasehold rights in the suit premises into freehold rights and conveying an absolute and exclusive right, title and interest in the suit premises in her favour. Pertinently, the appellant/plaintiff was a witness to the said Conveyance Deed.

37. All the aforesaid facts form a part of the judgment dated 03.08.2015 pronounced by the Division Bench in the intra court appeal preferred by the appellant against the order dated 28.11.2014, passed by the learned Single Judge whereby his suit was dismissed [RFA(OS) 162/2014]. In the pleadings of the suit instituted by the appellant, he has not denied execution of the aforesaid documents, namely, the Relinquishment Deed, the Rectification Deed, mutation of the property by the Land & Building Office in favour of the respondent/plaintiff and the Conveyance Deed executed in her favour and duly witnessed by him. In this context, the averments made

by the appellant in para 11 of the plaint are relevant and are reproduced below:-

"11. That during the family discussion it was decided that in order to construct property, which will be in the interest of the members of family first the property is to be transferred in the name of one member and it will facilitate raising of loan etc. However, it was decided that ownership of other members will remain intact in spite of the fact that property may be transferred in the name of any one member of the family, as the purpose of transfer of property was only to raise loan to minimize the formality. Accordingly, property was got transferred in the name of Defendant No.1 who was eldest member of the family and accordingly all the four persons, plaintiff and Defendant No.2 to 4 executed relinquishment deeds in favour of Defendant No.1 on 18.11.99. Copy of the relinquishment deed is filed herewith. On the basis of the relinquishment deed, the property was transferred in the name of Defendant No.1 and conveyance deed dated 4th Jan. 2001 was executed by her." (emphasis added)

38. It is apparent from the above that the only plea taken by the appellant in the earlier suit was that while executing the aforesaid documents, there was an understanding between the family members that the purpose of transferring the suit premises in favour of the mother was only to facilitate raising of a loan. The appellant had however not denied that the built up structure on the subject premises was brought down and a fresh construction of five floors including a basement was raised on the premises which was completed in the year 2000. In para 10 of the plaint, the appellant/defendant had categorically stated as below:-

"10. That construction of the property was completed in the year 2000. On completion of the property, plaintiff requested defendant No.1 to 4 to allow him to take possession of the first

floor of the property. But defendants told him that since the property has been constructed by taking loan and same was to be repaid and could be repaid only by letting out the first floor of the property which will fetch better rent, he should take the third floor and as and when loan is repaid he would be shifted to the first floor of the property. Believing representation of Defendants No.1 to 4 the plaintiff agreed to the request of Defendants No.1 to 4 and shifted to the third floor of the house and has been living there since 2000." (emphasis added)

39. Subsumed in the aforesaid plea of the appellant/defendant is a clear admission on his part that his occupancy of the third floor of the suit premises was only with the categorical permission of his mother, the respondent/plaintiff and not on the basis of adverse possession. It is also relevant to note that the partition suit was instituted by the appellant in April, 2006 and till the said date, he did not raise any plea of adverse possession in respect of the suit premises. Instead, his consistent plea was that there was a family settlement, whereunder his mother and siblings had assured him that he would be given the ground floor of the suit premises after the same was reconstructed. Though the appellant had pleaded in the suit that the respondent/plaintiff did not abide by the settlement and proceeded to transfer different portions of the suit premises to third parties, it is a matter of record that when the respondent/plaintiff executed a Sale Deed dated 04.03.2002, in respect of the second floor of the suit premises in favour of one Shri P.N. Mehra, it was the appellant who had accompanied his mother and appeared before the Sub-Registrar of documents and signed the Sale Deed as a witness and the said document was executed and registered in his presence. It is also relevant to note that in the recital of the

captioned Sale Deed, a reference was made to the fact that on 07.11.2000, the respondent/plaintiff had entered into an Agreement to Sell in respect of the second floor of the suit premises and the said floor was handed over to the purchaser in the year 2000 itself. Within a few days of executing the Agreement to Sell, the respondent/plaintiff had also executed a General Power of Attorney dated 19.11.2000, appointing the purchaser‟s son to deal with the second floor portion and once again, it was the appellant/defendant, who had signed the said Power of Attorney as a witness.

40. In the teeth of the aforesaid documents, the appellant/defendant issued a legal notice dated 07.11.2005 to his mother, stating inter alia for the very first time that the Relinquishment Deed executed in her favour as long back as in the year 1999, was with the understanding that after the suit premises is mutated in her favour, it would be handed back to him as one of the legal heirs of late Shri Aishi Lal. In the said legal notice, it was contended that the respondent had misled the appellant and broken his trust by selling the ground, first and second floors of the suit premises and had failed to pay him his share in the sale proceeds and that she was going to "dispose of the basement and the third floor to a third party which was contrary to the promise made to him". The legal notice had ended with a demand made by the appellant, calling upon the respondent to "pay the legal share of my client procured from the sale of the part of the abovementioned property and not to alienate or create any third party interest in the remaining property which is in possession of my client and to transfer the same back to my client along with the share of my client from the sale proceeds, already with you, within 15 days from the date of receipt of this notice".

41. In the aforesaid background, the appellant proceeded to file a suit for partition, declaration and permanent injunction against his mother, siblings and other owners of different portions of the suit premises. As for the third floor, which is the subject matter of the eviction suit instituted by the respondent/plaintiff against the appellant, well aware of his plea that his mother has permitted him to occupy the said floor for a limited period, he had prayed for a decree of permanent injunction for restraining the defendants therein from interfering with his possession. Thus, it can be seen that there was not a whisper in the pleadings in the earlier suit instituted by the appellant/defendant to the effect that he was in uninterrupted occupation of the third floor as an owner by adverse possession and had remained in the suit premises for a period of over twelve years to the knowledge and acquiescence of his mother. Instead, the foundational facts of his partition suit were raised on the edifice of a purported family settlement whereunder the family members had agreed to hand over the third floor to the appellant.

42. The aforesaid observations were sought to be dislodged by the learned counsel for the appellant, who had vehemently urged that no such plea of adverse possession was required to be taken by the appellant in his suit for partition, declaration and injunction etc. for the reason that a plea of adverse possession can only be taken as a defence and the said plea was duly taken by the appellant in the written statement filed in opposition to the suit for eviction instituted by his mother against him and that the aforesaid plea required the parties to lead evidence before any finding could be returned in that regard.

43. There is no quarrel with the position of law stated in the case of Gram Panchayat Village Sirthala (supra), relied upon by the counsel for the

appellant, which lays down that if a party is found to be in adverse possession, he as a plaintiff, cannot seek a declaration to the effect that such an adverse possession has matured into ownership for the reason that such a plea of adverse possession is only available to a defendant as a shield/defence. But unlike the said case, the appellant herein had not sought any such relief of declaration in the earlier suit instituted by him. Instead, he had prayed for a decree of partition, to the extent of 1/3 rd undivided share in the entire property. Furthermore, for the appellant/defendant to plead adverse possession in the suit for possession instituted against him, he must not only plead hostile possession, he should also demonstrate that the said possession has been long and uninterrupted and to the knowledge of the other co-owners. In the present case, the respondent/plaintiff is on a much higher footing as she is not a co-owner, but the recorded owner of the suit premises.

44. Article 65 of Schedule I of the Limitation Act prescribes the limitation of twelve years for instituting a suit for possession of an immovable property reckoned from the date when the possession of the defendant becomes adverse to the plaintiff and places the burden of proof on the defendant, who raises a plea of adverse possession. It was observed by the Supreme Court in the case of Nagabhushanammal(dead) by Legal Representatives vs. C. Chandikeswaralingam, reported as AIR 2016 SC 1134, that ouster is a strong defence only if the defendant is able to establish consistent and open assertion of denial of title, long and uninterrupted possession and exercise of right of exclusive ownership openly and to the knowledge of the other co-owner. For arriving at the aforesaid conclusion, the Supreme Court had relied on its earlier decision in the case of Syed Shah

Ghulam Ghouse Mohiuddin and Others vs. Syed Shah Ahmed Mohiuddin Kamisul Quadri and Ors reported as (1971) 1 SCC 597, wherein it was held that possession of one co-owner is presumed to be on behalf of all the co-owners, unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by their exclusion. It was also held that there has to be open denial of title to the parties who are entitled to it by excluding and ousting them.

45. On the pre-conditions prescribed for applying the doctrine of ouster, the decision of the Supreme Court in the case of P. Lakshmi Reddy v. L. Lakshmi Reddy reported as AIR 1957 SC 314 is a clincher. In the said case, it was held as below:-

"4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec calm nec precario. (See Secretary of State for India v. Debendra Lal Khan AIR 1934 PC 23). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna [(1900) LR 27 IA 136, 140]). 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 on 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-heir's title. (See Corea v. Appuhamy [(1912) AC 230)]. 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 the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other." (emphasis added)

46. In Mst. Sultan Jehan Begum and Ors. v. Gul Mohd. and Ors., reported as AIR 1973 MP 72, the following principles on adverse possession were laid down:-

"(1) When a person entitled to possession does not bring a suit against the person in adverse possession within the time prescribed by law his right to possession is extinguished. From this it only follows that if the former brings a suit against the latter within the prescribed period of limitation his right will not be extinguished.

(2) If a decree for possession is passed in that suit in his favour he will be entitled to possession irrespective of the time spent in the suit and the execution and other proceedings. (3) The very institution of the suit arrests the period of adverse possession of the defendant and when a decree for possession is passed against the defendant the plaintiff's right to be put in possession relates back to the date of the suit.

(4) Section 28 of the Limitation Act merely declares when the right of the person out of possession is extinguished. It is not correct to say that that section confers title on the person who has been in adverse possession for a certain period. There is no law which provides for 'conferral of title' as such on a person who has been in adverse possession for whatever length of time.

(5) When it is said that the person in adverse possession 'has perfected his title', it only means this. Since the person who had the right of possession but allowed his right to be extinguished by his inaction, he cannot obtain the possession from the person in adverse possession, and, as its necessary corollary the person who is in adverse possession will be entitled to hold his possession against the other not in

possession, on the well settled rule of law that possession of one person cannot be disturbed by any person except one who has a better title." (emphasis added)

47. The essential ingredients required to be met for establishing the plea of ouster were also considered by the Supreme Court in the case of Vidya Devi vs. Prem Prakash & Ors. reported as (1995) 4 SCC 496, wherein it was held as below:-

"28. „Ouster‟ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and

(iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law." (emphasis added)

48. In the case of Annasaheb Bapusaheb Patil and Others vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs and heirs etc. reported as (1995) 2 SCC 543, referring to Article 65 of Schedule I to the Limitation Act, 1963, the Supreme Court had explained the meaning of `adverse possession‟ in the following words:-

"14. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, 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 pretending that he had no title at all." (emphasis added)

49. The observations of the Supreme Court in the case of P Periasami vs. P Periathambi reported as (1995) 6 SCC 523, to the effect that "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property", also find resonance in the case of Karnataka Board of Wakf vs. Govt. of India & Ors., reported as (2004) 10 SCC 779.

50. In the case of T. Anjanappa and Ors. vs. Somalingappa and Anr. reported as (2006) 7 SCC 570, the Supreme Court had elaborated the basic principle of adverse possession and observed that:-

"12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases 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 acts 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.

13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:-

"24.It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one co- owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owner. (See Vidya Devi v. Prem Prakash and Ors. (1995) 4 SCC 496)"

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....." (See Annasaheb v. B.B. Patil; (1995) 2 SCC 543).

15. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title.

(See Ward v. Carttar [(1865) LR 1 Eq 29 : 35 Beav 171 : 55 ER 860] .) Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession

can only become adverse by some change in his position.......

16. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that person's title, which provides that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twelve years next after the time when the right first accrued, and does away with the doctrine of adverse possession, except in the cases provided for by Section 15. Possession is not held to be adverse if it can be referred to a lawful title.

17. xxx xxx xxx

18. It is the basic principle of law of adverse possession that

(a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner." (emphasis added)

51. In Tribhuvanshankar vs Amrutlal, reported as 2014 (2) SCC 788, the Supreme Court had discussed the concept of adverse possession as follows:-

"34. The conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. By virtue of remaining in possession the possessor takes an adverse stance to the title of the true owner. In fact, he disputes the same. A mere possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. It has been held in Secy. Of State for India In Council v. Debendra Lal Khan AIR 1934 PC 23 that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario.

35. In S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, it has been ruled that:

"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."

36. xxx xxx xxx

37. It is to be borne in mind that adverse possession, as a right, does not come in aid solely on the base that the owner loses his right to reclaim the property because of his wilful neglect but also on account of the possessor's constant positive intent to remain in possession. It has been held in P.T. Munichikkanna Reddy and Others v. Revamma and Others. (2007) 6 SCC 59"

(emphasis added)

52. It would also be very useful to refer to the observations made by the Supreme Court in a recent case of Maria Margarida (supra), where the respondent/plaintiff therein had urged that he was in possession of the suit premises for over 28 years and had been forcibly dispossessed by his own sister, the appellant/defendant therein and that he had never conceded that the title of the suit property was with her. In the said case, the Supreme Court has clarified in so many words that a possessory suit was good against the whole world except the rightful owner and that it is not maintainable against the true owner. It was observed that "there is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder; that in an action for recovery of possession of an immovable property, upon legal title to the property being established, the possession or occupation of the said

property by a person other than the holder of the legal title, will be presumed to have been under and in subordination to the legal title and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right".

53. In the captioned case, the Supreme Court had opined that only if the pleadings are found to be sufficient, would an issue be struck and matter be sent to trial in which case, the onus will be on the party resisting the title holder‟s claim to possession to prove his entitlement to remain in possession. Such a person averring a right to continue in possession is expected to give a "detailed particularised specific pleading alongwith documents to support his claim and details of the subsequent conduct which establish his possession". The said details required to be given, have been enumerated as follows:-

"70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive:

(a) who is or are the owner or owners of the property;

(b) title of the property;

(c) who is in possession of the title documents;

(d) identity of the claimant or claimants to possession;

(e) the date of entry into possession;

(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;

(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;

(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in possession.

71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the court must carefully and critically examine pleadings and documents.

72. The court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.

73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.

74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case." (emphasis added)

54. On a conspectus of the case law cited above, an adverse possession contemplates a hostile possession, where there is a clear assertion of hostile title in denial of the title of the true owner. Further, a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous and over the statutory period. Another vital requirement of acquisition of title by adverse possession is that the said possession should be in denial of the true owner‟s title and must be peaceful, open, continuous and hostile enough to be known the parties interested in the property. For coming to a conclusion as to whether the alleged acts of a person constituted adverse possession, the critical factor is the animus of the said person. Therefore, mere possession or user or permissive possession does not fall within the spectrum of adverse possession, nor does a person pleading adverse possession has any equity in his favour as he is trying to dislodge and defeat the right of a true owner.

55. To test as to whether the appellant herein is entitled to take the plea of adverse possession, it is relevant to examine the half baked and tenuous pleadings in his written statement on the said aspect, which are as follows:-

"PRELIMINARY OBJECTIONS:

1. That the present suit is barred under provision of Adverse Possession as the defendant has been in open and hostile possession of the property since the year 2000 as the plaintiff had left the property unattended and uncared for. It is the defendant who has been in the property for a period of more than 14 years, has cared for the same, looked after the same and has enjoyed the same without any interference of the plaintiff, therefore, has now become owner in possession of the premises in question as possession has not been challenged for a period of more than 14 years."

56. In complete variance to the preliminary objection of adverse possession taken by the appellant/defedant above, in para 6 on merits of his written statement, he claims to be in possession on the basis of a family settlement and has stated his position as below:-

"6. That the defendant is owner in possession on account of oral family agreement reached between the parties, wherein the defendant had executed certain documents in favour of the plaintiff, i.e. Relinquishment Deed, Ratification Deed etc. in favour of the plaintiff on the promise of the plaintiff who is his mother and had trusted her to be just fair and honest but now it seems that the plaintiff had turned dishonest as one of her daughter who is widow and other who is unmarried have no means to survive but want to sell the remaining portion of the property which is occupation and ownership of the defendant by throwing him out by hook or crook which itself is a pre-mature action since the appeal is pending. The suit is liable to be dismissed on this scope alone."

57. In the above context, it is also considered necessary to refer to para 16 of the plaint, where the respondent/plaintiff has stated as below:-

"16. That in January, 2001, defendant requested the plaintiff that he wants to reside on the third floor of the property for 4 to 6 months as his landlord is forcing him to vacate the property, further he is having his daughter‟s examination and he is unable to locate a suitable property for his family. It is submitted that the defendant promised to vacate the third floor property as soon as he finds a premises on rent for himself within 4 to 6 months."

In the corresponding para of his written statement, the appellant/plaintiff has only issued a bald denial in the following words:-

"16. That para No.16 as stated is wrong and hence denied. The plaintiff be called upon to provide proof of the same. The

defendant had shifted in the premises in the year 2000 and not in 2001."

58. From the averments made in the written statement, it is crystal clear that even if it is assumed for a moment in his favour that the appellant/defendant had shifted to the third floor of the suit premises in the year 2000, for claiming ownership by adverse possession, it was incumbent for him to have shown that his possession was all along hostile to the respondent/plaintiff and she had acquiesced to the same and allowed him to remain in possession thereof for over twelve years, which he has miserably failed to demonstrate. Rather, he has himself stated in para 6 of the written statement that his possession is on account of an oral family arrangement between family members.

59. Quite evidently, the appellant/defendant does not fulfil any of the tests laid down in the judicial pronouncements cited above for claiming adverse possession as he has nowhere stated in the written statement as to the date on which he came into possession, what was the nature of his possession, whether the factum of possession was known to the respondent/plaintiff who is the recorded owner, for how long did his possession continue and whether his possession was open and undisturbed. In other words, to affirmatively assert adverse possession, the appellant/defendant should have atleast pleaded in his written statement that after the title of the suit premises had been mutated in the government records in favour of his mother, he had asserted his own exclusive right, title and interest in the suit premises to her knowledge and that the respondent/plaintiff had acquiesced to such a hostile exercise of right and had allowed him to remain in continuous possession and enjoyment of the suit premises in an assertion of the said hostile title,

during the entire statutory period of twelve years, as has been contemplated under Article 65 of the Limitation Act, without any let or hindrance.

60. None of the aforesaid ingredients have been satisfied by the appellant in the instant case. In the absence of affirmative, detailed and clear pleadings on the above material aspects in the written statement, a hollow defence shorn of any material particulars raised by the appellant/plaintiff to claim that he was in adverse possession, is found to be devoid of merits and is rejected. The entire plea of adverse possession taken by him now flies in the face of the appellant/defendant‟s own case set up in the partition suit instituted by him where he had stated that his mother had permitted him to initially occupy the first floor of the suit premises and later on, he had been permitted to shift to the third floor. This Court finds no force in the submission of the counsel for the appellant that the suit ought to have been taken to trial and evidence permitted to be lead on the above aspect. In the instant case, the trial court has carefully looked into the pleadings and the documents before concluding that the respondent/plaintiff is entitled to a judgment on admission and held that merely because the appellant/defendant was allowed by her to live in the suit premises for some time, could not be treated as a case of adverse possession. This Court concurs with the aforesaid findings returned in the impugned judgment. In the absence of the foundational facts and supporting material in the pleadings, the learned trial court was under no obligation to afford any such opportunity to the appellant/defendant of framing an issue and asking the parties to lead evidence.

61. Apart from the above reasoning, it is settled law that the pleas on title and adverse possession are mutually inconsistent and self-destructive and the latter does not begin to operate until the former is renounced. In the case of Mohan Lal (Deceased) through his LRs Kachru & Ors. vs. Mirza Abdul Gaffar & Anr. reported as (1996) 1 SCC 639, while considering a case where the defendant therein had raised a plea of permissive possession and averse possession, the Supreme Court had made the following observations:

"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the 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 his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on section 53-A, it goes without saying that he admits by implication that he came into possession of 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."

62. The aforesaid aspect of mutually inconsistent pleas of permissive possession and possession without animus possidendi also came up for consideration in the case of L.N. Aswathama and Anr. vs. P. Prakash reported as (2009) 13 SCC 229 and the position of law was stated as below:-

"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 Periasami vs. P. Periathambi - (1995) 6 SCC 523, Md. Mohammad Ali vs. Jagdish Kalita - (2004) 1 SCC 271 and P.T. Munichikkanna Reddy vs. Revamma - (2007) 6 SCC 59)" (emphasis added)

63. When the appellant/defendant herein had filed the previous suit for partition, claiming a share in the suit premises, his singular plea was about his entitlement to 1/5th undivided share in the suit premises, as one of the five legal heirs of his deceased father, while simultaneously admitting to the fact that he alongwith his siblings had of their own free will and volition given up their respective shares in the suit premises, in favour of their mother, the respondent/plaintiff herein, by executing a Relinquishment Deed and a Rectification Deed as long back as in the year 1999 and 2000 and based on the said documents, a Conveyance Deed had been executed in her favour on 07.2.2001. Having failed to succeed in the said suit right upto the Supreme Court, when the respondent/plaintiff had to institute the present suit, the appellant raised the untenable plea of adverse possession only to prolong the suit by hook or crook and continue occupying the suit premises in that duration.

64. The mere fact that the appellant/defendant, being a family member, was permitted to occupy the third floor of the suit premises, cannot be treated as adverse to his mother, who is the recorded owner, because at no stage, right from the date when he was granted such a permission in the year

2000, to the year 2006, when he had instituted a partition suit, did he assert his exclusive title therein or claim that the respondent/plaintiff was completely excluded from enjoying the suit premises or that such an adverse possession had continued during the statutory period. Rather, the appellant had admitted to the fact that his occupation of the third floor was on the basis of permissive user granted by his mother and he had sought to invoke an oral family settlement to claim 1/5th undivided share in the entire property.

65. In the aforesaid facts and circumstances, there is considerable force in the submission of the learned counsel for the respondent/plaintiff that the appellant cannot be permitted to blow hot and cold in the same breath. On the one hand, in April, 2006, he had pleaded in his partition suit that on the demise of his father, he had inherited 1/5th undivided share in the suit premises alongwith his mother, the respondent herein and his other siblings and on the other hand, after the said claim was tested and turned down by successive courts, starting from the judgment of the learned Single Judge dated 28.11.2014, that was sustained by the Division Bench and the Supreme Court in the appeals preferred by him, he has now sought to raise a bogus defence in the written statement that he is in open and undisturbed adverse possession of the third floor, hostile to the respondent/plaintiff, to her knowledge. Having shifted to the third floor of the suit premises on the permission of the respondent/plaintiff, the appellant is prohibited in law from divesting her of the title, by pretending that she had no title at all. It is not out of place to mention here that in the penultimate para of the judgment dated 28.11.2014 in CS(OS) 724/2006, while dismissing the appellant‟s partition suit, the respondent/plaintiff was declared to be the lawful owner of

the suit premises.

66. As for the plea taken by learned counsel for the appellant that the suit instituted by the respondent/plaintiff is barred by limitation, the records reveal that the appellant had instituted the partition suit against his mother in April 2006, which was successfully resisted by her and ultimately rejected vide judgment dated 28.11.2014. Within a few months therefrom, she had instituted the present suit against the appellant. Even if it is assumed for a moment that the appellant/defendant is entitled to take the plea of adverse possession, the period of twelve years prescribed in Article 65 of Schedule I of the Limitation Act, 1963, if reckoned from April, 2006, would have expired by the end of March, 2018, whereas admittedly, the respondent/plaintiff had instituted the present suit for eviction and possession against the appellant/defendant in February, 2015, which was much before the expiry of twelve years. Thus, by no stretch of imagination can the appellant be heard to state that his possession in the suit premises stands converted into that of an owner and thus deprive his mother, who is the recorded lawful owner thereof, of her right of action to recover the same, as per law. There is not a shadow of doubt that the right and title of the respondent/plaintiff in the suit premises had never been extinguished for the appellant to raise the plea of adverse possession.

67. This Court is equally unimpressed with the argument advanced by learned counsel for the appellant that the parties ought to have been permitted to lead evidence before a judgment was pronounced. Sub-rule (1) of Order XII Rule 6 CPC empowers the Court to pronounce a judgment on admissions if it is satisfied that there are admissions of facts in the pleading or otherwise, whether orally or in writing and for doing so, it does not even

need to await an application of any party as it is empowered to do so of its own motion. Further, Order VIII Rule 5 CPC that deals with specific denial, contemplates that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under a disability. Appended to the said prescription, is a proviso to the effect that the court "may in its discretion" require any fact so admitted to be proved otherwise than by such admission. It is manifest from the above provision that the legislature had deemed it fit to leave it to the discretion of the court as to whether in the facts of a given case, there is a requirement of proving the same, otherwise than by admission. In other words, the prescription of Order VIII Rule 5 CPC is that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the written statement, shall be taken to be admitted. The aforesaid proviso to the Rule is quite clearly, an exception to the general rule of evidence that a fact which is admitted, need not be proved. [Refer: Balraj Taneja & Anr. vs. Sunil Madan & Anr. (1999) 8 SCC 396] There is no merit in the submission of the counsel for the appellant that the trial court ought to have framed issues in the suit and asked the parties to lead evidence. There was no reason to frame issues in the facts of the present case and the trial court had rightly exercised its discretion in favour of the respondent/plaintiff by invoking Order XII Rule 6 CPC.

68. In the instant case, there are sufficient admissions on record, express and implied for the learned trial court to have passed a judgment on admissions. The ownership of the respondent/plaintiff in the suit premises stands established by the Relinquishment Deed dated 18.11.1999, executed

by the appellant and his siblings in her favour, followed by the Conveyance Deed dated 4.1.2011, executed by the Competent Authority in her favour. Both the said documents were filed by the appellant in the suit for partition instituted by him. In para 10 of the plaint in his partition suit, the appellant had admitted that his mother had permitted him to occupy the third floor. In an effort to overcome the said admission, in para 16 of the written statement in the present suit, the appellant has baldly denied the plea of the respondent/plaintiff in the corresponding para of the plaint that he had approached her with a request to shift to the third floor of the subject premises for a period of 4-6 months and that he had assured her that he would shift as soon as he finds an alternate premises on rent. In the absence of any clear and specific pleadings in the light of the categorical assertions of title made by the respondent/plaintiff backed with relevant documents of title, the inevitable inference is that the appellant/defendant had no leg to stand on and the pleas taken by him were in fact implied admissions and the defence raised, was completely hollow and bereft of material facts.

69. It is also a settled position in law that clever drafting cannot provide a camouflage to create an illusion of a cause of action and such cases ought to be snipped out and nipped in the bud at the first hearing itself [Refer: (1977) 4 SCC 467; T. Arivandandam vs. T.V. Satyapal, 1999 (48) DRJ 292; Ajay Goel vs. K.K. Bhandari; Church of Christ Charitable Trust vs. Ponniamman Education Trust; (2012) 8 SCC 706 and Maria Margarida (supra)]. In the present case, invoking its inherent powers under Order XII Rule 6 CPC, the trial court has proceeded to pass a judgment on admissions by successfully sifting the chaff from the grain and piercing the smoke screen of adverse possession sought to be created by the appellant/defendant, with the

malafide intention of willy-nilly hanging onto the suit premises.

70. This Court thus concludes that the present appeal preferred by the appellant/defendant is completely misconceived and the defences taken by him to contest the suit instituted by the respondent/plaintiff were misconceived, malafide and mischievous and only a ploy to buy more time. Resultantly, the appeal is dismissed as being devoid of merits. However, the matter does not rest here.

71. The appellant and several other litigants like him seem to be harbouring an impression that by engaging in prolonged litigation, they would not only manage to deprive the lawful owner of the right to enjoy her premises, the said litigation will also give them a handle to occupy the same for a song. It is high time that such devious attempts are curbed and clipped. The appellant appears to have factored in the fact that once he files an appeal, the dockets of the courts exploding with litigations, the said appeal may not ripe for final hearing for long long time and in this duration, he would reap the benefits of remaining in occupation of the suit premises. He has already tried his luck in the previous rounds of litigation that was initiated by him in the year 2006, where initially, an ad interim injunction was granted in his favour, which had continued till the said suit was dismissed vide judgment dated 28.11.2014. Over the next two years thereafter, the appellant kept the respondent/plaintiff embroiled in the appellate courts, first before the Division Bench and then before the Supreme Court. Having now lost before the trial court in the suit for possession instituted against him by the respondent/plaintiff, the appellant has filed the present appeal in the fond hope and expectation that if he is able to drag this litigation, it will outlive his 94 year old mother who will

remain out in the cold. Even if the appeal is ultimately dismissed, the appellant would have achieved indirectly, that which he could not have achieved directly.

72. The Court must dispel this impression with all the authority at its command. Justice is not blind and nor do the courts wear blinkers. Swayed by the classic personification of the statute of Goddess of Justice, described as Lady Justice in Roman mythology and Goddess Themis in Greek mythology, as reflected in literary works, illustrations and in several films and teleserials that depicts her modern iconography, frequently adorning the courts and court rooms, where she is shown as blindfold, holding a set of scales typically suspended from her left hand and a double edged sword in the right hand, facing downward, some litigants remain under a misconception that the justice system turns a blind eye to false, vexatious and frivolous claims and defences.

73. It must be clarified that „blindfold‟ personifies impartiality and objectivity and it signifies that justice should be meted out without fear or favour, regardless of money, wealth, fame, power or identity. Similarly, the set of scales are symbolic of measuring the strength of a case‟s support and the double edged sword is an embodiment of the power of reason and justice that must be wielded either for or against any party. To this date, the bulwark of the modern justice delivery systems work on the allegorical personification of the aforesaid abstract concepts that are endorsed by their sheer moral force. Courts are not influenced by the background, connections, status, power or authority of a claimant or a defendant. In exercise of the powers of reason and logic and while measuring the relative strength of the pleas taken by both sides, courts are constantly engaged with

the effort of sifting the truth and cutting fact from fiction for arriving at a fair, just and equitous decision, unsullied by discrimination, partisanship and prejudice. When wielding the sword of justice, in deserving cases, courts are known to act with due compassion and compunction for the disadvantaged, underprivileged, deprived and the destitute.

74. Coming to the instant case, one would have thought that once the appellant had failed to secure a favourable verdict in the suit for partition instituted by him against his mother, the respondent/plaintiff herein, his siblings and other co-owners of the entire premises before several tiers of the judicial mechanism, including the remedy of review exhausted by him before the Supreme Court, on moral ground alone, he would have vacated the suit premises on his own and handed it back to his mother. But that was not to be. The respondent/plaintiff was compelled to knock at the doors of the court and institute a suit for eviction against the appellant/defendant, which also he has contested to the hilt by raising specious pleas. In these circumstances and having regard to the conduct of the appellant/defendant as highlighted above, this court would be failing in discharging its duty if it did not impose reasonable and realistic costs on him in exercise of its appellate jurisdiction. This is considered necessary so as to fully restitute the respondent/plaintiff. It has been repeatedly emphasized in several judicial precedents that awarding realistic costs is to fully restitute the party that has been put to disadvantage on account of the litigation and to ensure that such costs act as a deterrent for unscrupulous litigants who cause prejudice, harassment and deprivation of the hapless opponents [Refer: Salem Bar Association, T.N. vs. Union of India; 2005 (6) SCC 344, Padmawati v. Harijan Sewak Sangh & Ors.; (2008) 154 DLT 411, Ashok

Kumar Mittal v. Ram Kumar Gupta; (2009) 2 SCC 656, Maria Margarida (supra), Vinod Seth v. Devinder Bajaj & Anr.; (2010) 8 SCC 1, Ramrameshwari Devi and Ors. vs. Nirmala Devi and Ors.; (2011) 8 SCC 249 and Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust; (2012) 1 SCC 455]

75. In the aforesaid judicial pronouncements, the courts have held time and again that costs have to be actual and reasonable including costs of the time spent by a successful party, their transportation and lodging, if any, or any other incidental costs, besides payment of lawyers‟ fee, court fee and miscellaneous expenses pertaining to the litigation. The said costs should also include the real time costs that the aggrieved party had to bear on account of the deprivation suffered by her.

76. One of the causes of the docket explosion that the courts are facing now-a-days, is on account of vexatious, frivolous and mischievous litigation being brought in by litigants, who for their vested interest, make every effort to perpetuate the lis at the costs of the opposite side. The appellant/defendant before this Court is a litigant of such an ilk. As noted above, the suit premises is located in Jungpura, a posh colony in South Delhi. In the year 2000, the respondent/plaintiff had allowed the appellant/defendant and his family to occupy the third floor of the suit premises for a few months, but he has perpetrated his possession for the past sixteen years, without paying even a penny to his mother.

77. In the year 2006, the appellant proceeded to institute a partition suit against the respondent/plaintiff, his other siblings and the owners of different portions of the suit premises. The said suit was dismissed by the learned Single Judge vide judgment dated 28.11.2014. Aggrieved by the said

decision, the appellant had preferred an appeal; vide judgment dated 03.08.2015, the Division Bench sustained the order of the Single Judge. The said judgment was challenged by the appellant before the Supreme Court and vide order dated 08.01.2016, his SLP was dismissed. This did not deter the appellant, who elected to file a review application, which was also dismissed by the Supreme Court vide order dated 27.04.2016. The occupation of the suit premises by the appellant and his family members in all this duration has been without compensating her in any manner.

78. By now, the respondent/plaintiff, who is a widow, has reached the ripe old age of 94 years and is completely bed ridden, feeble in body, broken in spirit and financially stressed. She alongwith her unmarried and unemployed daughter is having to reside in a rented accommodation in the adjoining locality for the past sixteen years. With the meagre resources at her command, the respondent/plaintiff had to invoke the Protection and Maintenance of Senior Citizen Act against the appellant for an order of residence and maintenance. On enquiring, counsel for the parties had stated that the Tribunal constituted under the above enactment had permitted the respondent/plaintiff to live in the suit premises and directed the appellant/defendant to pay her a sum of Rs.10,000/- per month towards maintenance. The said order was however challenged by the appellant in WP(C) No.400/2012. The said petition was disposed of by a consent order dated 10.9.2013 whereunder, the appellant had agreed to pay his mother a sum of Rs.10,000/- per month towards maintenance, which he has been doing. But that would not suffice for the reason that the rent being paid by the respondent/plaintiff in respect of the tenanted premises occupied by her and her unmarried daughter, is much more.

79. It is not out of place to mention here that while rejecting the appeal filed by the appellant/defendant against the judgment dated 28.11.2014, having regard to his deplorable conduct, the Division Bench had imposed costs on him but at that time, they had refrained from imposing costs on the appellant to compensate the respondent/plaintiff for the deprivation suffered by her at his hands in respect of the suit premises, on the assumption that the same would be awarded in the suit for eviction that by then, she had filed against the appellant/defendant. But the respondent/plaintiff, being a generous mother, did not seek any such relief and only instituted a suit for possession. Having suffered a decree in the said suit, the appellant ought to have done the decent thing by vacating the suit premises. Instead, he has unabashedly hung on to the premises and filed the present misconceived appeal. At the stage of admission itself, on 22.09.2016, this Court had made it clear that pendency of the present appeal will not be ground for the executing court to stay its hands in respect of the execution petition filed by the respondent/plaintiff. However, counsel for the respondent/plaintiff had stated that he would not precipitate matters as the appeal was being finally argued.

80. In the aforesaid background, while imposing costs on the appellant/defendant, the aspect of compensating the respondent/plaintiff for the deprivation caused to her by the appellant‟s continuous occupation of the suit premises must be examined by the Court. The appellant/defendant is a Bank officer, who has retired in May, 2013. His family comprises of a wife who is employed with the Delhi Transport Corporation and a daughter. As per the documents furnished by the counsel for the respondent, the

combined salary and emoluments of the appellant and his wife would easily exceed a lac of rupees per month. The appellant/defendant and his family members have been enjoying the third floor of the suit premises built up on a plot of land measuring 200 sq. yards in a prime locality of south Delhi, since the year 2000. The said flat comprises of three bedrooms, a drawing- cum-dining room, two toilets and a kitchen. On the other hand, the respondent/plaintiff has a meagre source of income. Apart from Rs.10,000/- per month that the appellant/defendant pays her, she receives a paltry amount as pension. Her unmarried daughter is not employed and is her full time care giver. In February 2005, the respondent/plaintiff, along with her daughter had first shifted from the ground floor of the subject premises to a smaller tenanted premises in the adjoining vicinity at a monthly rent of Rs.18,000/-. In September, 2010, she had to shift to another tenanted premises in the same area, at a monthly rent of Rs.16,000/-.

81. Taking judicial notice of the location and size of the suit premises under the occupation of the appellant/defendant, where he has been residing alongwith his family members, for the past 16 years, to the exclusion of the respondent/plaintiff, who is the lawful owner, he ought to be called upon to compensate her for the said user for all these years. However, keeping in mind the fact that the respondent/plaintiff had instituted the present suit in February, 2015 and has succeeded vide judgment dated 14.05.2016, whereafter no interim orders have been operating in his favour, this Court is of the opinion that ends of justice would be met if the appellant/defendant is called upon to compensate the respondent/plaintiff for the deprivation caused to her by calling upon him to pay her a sum of Rs.20,000/- per month towards use and occupation, which is considered to be a very conservative

figure having regard to the going rent in the area. The said amount shall be paid by the appellant with effect from February 2015. As a result, the appellant is held liable to pay costs of Rs.4,80,000/- to the respondent/plaintiff, apart from the litigation expenses and counsel‟s fee, which is capped at Rs.50,000/-. The said amount shall be paid within four weeks. The appeal is hereby dismissed with costs of Rs.5,30,000/- granted in favour of the respondent/plaintiff.

HIMA KOHLI, J JANUARY 19, 2017 rkb/sk/ap/mk