Laxmi Narayan Soni vs Sudha Gupta & Ors .
2018 Latest Caselaw 2670 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 345/2018

%                                        Reserved on: 25th April, 2018
                                         Pronounced on: 1st May, 2018

LAXMI NARAYAN SONI                                     ..... Appellant
                             Through: Mr. Amarjit Singh, Advocate.

                          versus

SUDHA GUPTA & ORS .                               ..... Respondents
                            Through: Mr. R.K. Sharma, Advocate
                                     with Ms. Dezy Gaur, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?
VALMIKI J. MEHTA, J

Caveat No. 358/2018

1.           Counsel for the caveator enters appearance.

             Caveat stands discharged.

CM No. 16333/2018 (Exemption)

2.           Exemption allowed subject to just exceptions.

             CM stands disposed of.

CM No. 16334/2018 (delay in re-filing)

3.           For the reasons stated in the application, delay in re-filing
is condoned.

             CM stands disposed of.




RFA No. 345/2018                                              Page 1 of 15
 RFA No. 345/2018 & CM No. 16332/2018 (stay)

4.           This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the judgment of the trial court dated 23.12.2017 by which

the trial court has dismissed the suit for possession, damages and

injunction   filed     by     the      appellant/plaintiff   against      the

respondents/defendants. Respondent nos. 1 and 2/defendant nos. 1 and

2 are the contesting defendants and respondent no.3/defendant no.3 is

the Municipal Corporation of Delhi. The suit property is a plot of land

admeasuring 200 sq. yards bearing private number A-27, West Vinod

Nagar, Narwana Road, Delhi-110092 forming part of Khasra No. 822

admeasuring 3 bighas and 12 biswas situated in Village Mandawali,

Fazalpur, Delhi. Out of the original 3 bighas and 12 biswas of land,

the original owner Sh. Prem Singh, son of Sh. Shiv Charan, had

constructed a house on 1 bigha and 16 biswas, and the other part of the

land was acquired by the Government.


5.           The     facts   as     pleaded   in   the   plaint    are    that

appellant/plaintiff purchased the suit property from one Sh. Sanjay

Kohli by a registered Sale Deed dated 23.12.1998. It was pleaded that




RFA No. 345/2018                                                  Page 2 of 15
 Sh. Sanjay Kohli had purchased the suit property by a registered Sale

Deed dated 21.4.1993 from the original owner Sh. Prem Singh. It was

pleaded in the plaint that respondent nos. 1 and 2/defendant nos. 1 and

2 had no right, title and interest in the suit property and they had

illegally occupied the same. A legal notice dated 12.7.2000 was served

upon the respondent nos. 1 and 2/defendant nos. 1 and 2 which was

neither replied to nor complied with. Appellant/plaintiff had earlier

filed a suit for possession and recovery of damages with respect to the

same property and against the same respondent nos. 1 and 2/defendant

nos. 1 and 2 on 29.9.2000 but the said suit was dismissed in default on

26.8.2003 and even an application filed for restoration of the suit was

dismissed. It was further pleaded in the plaint that in March 2009

respondent nos. 1 and 2/defendant nos. 1 and 2 started illegal and

unauthorized construction on the suit property, and on no action being

taken by the respondent no.3/defendant no.3/MCD, the subject suit

was filed seeking possession, mesne profits and injunction.


6.          Respondent nos. 1 and 2/defendant nos. 1 and 2 contested

the suit by filing written statement. Respondent nos. 1 and 2/defendant

nos. 1 and 2 pleaded that they had no concern with the suit property




RFA No. 345/2018                                              Page 3 of 15
 which is a part of Khasra No. 822 whereas the respondent nos. 1 and

2/defendant nos. 1 and 2 are owners of land admeasuring 280 sq. yards

forming part of Khasra No. 824 and which bears Property No. C-23,

Old No. 23, West Vinod Nagar, Delhi. Respondent nos. 1 and

2/defendant nos. 1 and 2 claimed that they had purchased their

property bearing no. C-23 from Sh. Kartar Singh on 24.9.1985.

Respondent nos. 1 and 2/defendant nos. 1 and 2 also referred to the

earlier suit filed by the appellant/plaintiff which was dismissed in

default and not restored. Suit was accordingly prayed for being

dismissed.


7.           After pleadings were completed trial court framed the

following issues:-

      "1.     Whether the suit of the plaintiff is bad on account of non-joinder
      and mis-joinder of necessary parties? OPD
      2.      Whether the plaintiff has no right, title or interest in the suit
      property and as such the plaintiff has no locus standi to file the present suit
      against the defendants? OPD
      3.      Whether the suit of the plaintiff has not been properly framed by
      not giving the number of adjoining properties and proper description of
      the properties and if so, to what effect? OPD
      4.      Whether the plaintiff has no cause of action to file the present suit
      in view of the dismissal of the previous suit on the same cause of action?
      OPD
      5.      Whether the plaintiff is entitled to relief of possession? OPP
      6.      Whether the plaintiff is entitled to damages, if so, at what rate and
      for what period? OPP
      7.      Whether the plaintiff is entitled to discretionary relief of
      injunction? OPP




RFA No. 345/2018                                                       Page 4 of 15
       8.     Relief."


8.           Appellant/plaintiff stepped into the witness box as PW-1.

Respondent no.1/defendant no.1 examined herself as DW-1 and legal

heir of the respondent no.2/defendant no.2 Sh. Rajiv Gupta

(respondent no. 2(a)) deposed as DW-2.


9.           With respect to issue no.4 of the appellant/plaintiff not

having a cause of action to file the present suit on account of dismissal

of the previous suit, the trial court has held that dismissal of the

previous suit did not bar filing of a fresh suit as for each day of illegal

dispossession a fresh cause of action arises for claiming possession,

but the period of dispossession if exceeds 12 years, then by virtue of

Article 65 of the Limitation Act, 1963 read with Section 27 of the

Limitation Act the title of the property would stand extinguished.

Therefore, it was held that whereas dismissal of the earlier suit in

default did not bar filing of a fresh suit for possession because the

fresh suit for possession is based on a cause of action which arises

everyday on account of illegal possession of respondent nos. 1 and

2/defendant nos. 1 and 2, but since in the present case the illegal

dispossession was more than 12 years prior to filing of the subject suit




RFA No. 345/2018                                               Page 5 of 15
 on 13.7.2009, the subject suit was held to be barred and lacking cause

of action in view of Article 65 of the Limitation Act read with Section

27 thereof. The period of dispossession of the appellant/plaintiff was

held to be more than 12 years because in para 4 of the plaint the

appellant/plaintiff had clearly pleaded that the respondent nos. 1 and

2/defendant nos. 1 and 2 on 24.11.1996 had criminally trespassed into

the suit property and unauthorizedly occupied the same without the

consent and permission of the owner of the suit property whereas the

suit was filed on 13.7.2009 after 12 years from 24.11.1996. The

relevant observations of the trial court, and which I accept and adopt

as being correct, read as under:-

      "8.6 Before proceeding further, it is pertinent to mention that the
      previous suit was dismissed in default on 26.08.2003 under Order IX Rule
      8 of CPC as on that day defendant No.1 was present in person with
      counsel, but none had appeared on behalf of the plaintiff.
      8.7      Thus, the issue which arises for consideration is whether the instant
      suit is barred under Order IX Rule 9 CPC. Order IX Rule 9 CPC precludes
      the plaintiff from bringing a fresh suit in respect of the same cause of
      action. Order IX Rule 9 CPC reads as under:-
          "9. Decree against plaintiff by default bars fresh suit.-(1) Where a
          suit is wholly or partly dismissed under rule 8, the plaintiff shall be
          precluded from brining a fresh suit in respect of the same cause of
          action. But he may apply for an order to set the dismissal aside, and if
          he satisfies the Court that there was sufficient cause for his non-
          appearance when the suit was called on for hearing, the Court shall
          make an order setting aside the dismissal upon such terms as to costs
          or otherwise as it thinks fit, and shall appoint a day for proceeding with
          the suit.
          (2) No order shall be made under this rule unless notice of the
          application has been served on the opposite party."




RFA No. 345/2018                                                      Page 6 of 15
       8.8       The operation of this rule is confined to case where the second suit
      is brought for the same subject matter and on the same cause of action.
      In Khalil Khan Vs. Mahbub Ali AIR 1949 PC 78 it was observed that as
      to identity of cause of action, one workable test, though not conclusive, is
      whether the same evidence would support the claim in both the suits. If
      the reply is in affirmative, a fresh suit will be barred. If it is the negative, a
      fresh suit will lie.
      8.9.      Keeping in mind the said basic principle the court would discuss
      each ground taken by plaintiff in written submissions (as reproduced
      above);
      a)        ......
                ......

b) The second ground as stated in para (b) reproduced above is that the plaintiff is owner of the suit property and defendant No.1 and 2 are in unauthorized and illegal possession of the same, hence, the cause of action is recurring.

Though plaintiff filed judgments in support of the said ground, with due respect, it is submitted that the said judgments are not applicable to the issue in hand. His contentions do find strength from judgment titled as Mahesh Chand Vs. Sumesh Kumar Chaturvedi dated 18.11.2014 in CM (M) No. 455/2014 of Hon'ble Delhi High Court, wherein while dealing with scope of Order IX Rule 9 CPC in a suit filed by owner against alleged trespasser, Hon'ble High Court observed as under:-

"5. Actually the trial court has wrongly referred to the provision of Order IX Rule 8 CPC because it is the provision of Order IX Rule 9 CPC which bars the filing of a fresh suit, however even this provision of Order IX Rule 9 CPC does not apply because a fresh suit is barred only on the same cause of action and not on a different cause of action. In a suit for possession on the basis of title the owner/plaintiff has a continuous and a fresh cause of action every moment/second/day till 12 years from when the defendant claims adverse possession, and only on the expiry of 12 years (vide Article 65 of the Limitation Act, 1963), the right/title of the plaintiff will stand extinguished in terms of Section 27 of the Limitation Act. Even the period of 12 years only commences if defendant sets up a plea of adverse possession and till the plea of adverse possession is set up the period of 12 years does not even begin for a suit for possession to be filed by the owner with respect to the property owned by him. Once entitlement to claim possession on the basis of title is at least 12 years and definitely till the period of adverse possession claimed by the defendant expires, it cannot be said that the subject suit for possession is filed on the basis of same cause of action of the earlier suit for possession filed by the mother of the defendant because each second of illegal possession by a defendant gives rise to a fresh cause of action for filing of a suit for possession of course till after the expiry of a period of 12 years as per

Article 65 of the Limitation Act read with Section 27 of the said Act. Every day of trespass gives right to file a fresh suit every day i.e every day of illegal trespass gives a fresh cause of action. To complete the discussion, it also needs to be noted that a dismissal in default for non- prosecution does not amount to res judicata vide Sheodan Singh Vs. Smt. Daryao Kunwar, AIR 1966 SC 1332."

Thus, as per the said judgment every day of trespasser gives right to file a fresh suit every day i.e. every day of illegal trespass gives a fresh cause of action, of course till after expiry of a period of 12 years as per Article 65 of the Limitation Act read with Section 27 of the said Act. The said judgment supports the arguments of plaintiff that the cause of action is recurring, but, it is recurring subject to law of limitation i.e. Article 65 & Section 27 of Limitation Act.

At this stage the court would like to reproduce second part of Para 4 of the plaint as under:-

"However, the defendant Nos. 1 and 2 on 24.11.1996 criminally trespassed and unauthorizedly occupied the same without the consent or permission of the owner of the said property. Shri Dhoom Singh one of the Attorneys of Shri Sanjay Kohli filed a complaint with the police and with the SDM Concerned of the area, in respect of the illegal act done by defendant Nos. 1 and 2."

The plaintiff's own case is that defendant No.1 and 2 criminally trespassed and unauthorizedly occupied the suit property on 24.11.1996 without the consent or permission of owner Sh. Sanjay Kohli (or attorney Dhoom Singh) from whom the plaintiff purchased property on 23.12.1998. As per Article 65 of Limitation Act, suit for possession can be filed within 12 years from the date when the possession of defendant becomes adverse to the plaintiff. In case of criminal trespass, the starting point for limitation would be the day on which the trespass took place. In the present case the said period of 12 years as per the plaint itself, commenced from 24.11.1996, thus the limitation to file suit for possession expired on 23.11.2008, whereas the present suit has been filed on 13.07.2009. Therefore, as per plaint itself the suit is time barred and by virtue of Section 27 of the Limitation Act plaintiff's right to sue has extinguished. The plaintiff may argue that the suit is within limitation from the date on which he purchased property by Sale Deed i.e. 23.12.1998, however, the said argument is negated by definition of "Plaintiff" in Section 2(l) of Limitation Act, which provides that "Plaintiff" includes any person from or through whom a plaintiff derives his right to sue, which in the present case is the previous owner from whom the plaintiff purchased the property (as alleged in plaint). Though, the second argument saves the suit from the bar of Order IX Rule 9 CPC, the law of limitation comes into play and extinguishes the right of the plaintiff to the suit property.

      c)      .......
              .......

8.10. Accordingly, this issue is decided in favour of plaintiff with the observation that though the previous suit does not bar the filing of the present suit, but the previous suit does not save limitation for filing the present suit, which as per the plaint itself is filed after expiry of limitation of 12 years." (underlining added)

10. Learned counsel for the appellant/plaintiff sought to

contend that the suit is not barred by limitation, however, it could not

be disputed that in para 4 of the plaint filed in the subject suit the

appellant/plaintiff had himself pleaded that on 24.11.1996 the

respondent nos. 1 and 2/defendant nos. 1 and 2 had criminally

trespassed and unauthorisedly occupied the suit property without

consent and permission of the owner of the suit property. The period

of 12 years therefore with respect to the rights of the

appellant/plaintiff in the suit property being extinguished commenced

on 24.11.1996, and since the subject suit was filed after 12 years on

13.7.2009, therefore, by virtue of Section 27 of the Limitation Act

appellant/plaintiff's right in the suit property was extinguished and

appellant/plaintiff had therefore no cause of action to file the subject

suit for possession on the allegation of title of the appellant/plaintiff in

the suit property.

11. Trial court has dismissed the suit by also holding that

appellant/plaintiff claimed to seek possession of the property no. A-

27, but respondent nos. 1 and 2/defendant nos. 1 and 2 pleaded that

they had no connection with the suit property because their property

number is C-23 and not A-27 and that whereas the property no. A-27

of the appellant/plaintiff fell in Khasra No. 822, the property no. C-23

of the defendant fell in Khasra No. 824 with the fact that the

appellant/plaintiff claimed ownership of 200 sq. yards whereas the

plot of the respondent nos. 1 and 2/defendant nos. 1 and 2 was of 280

sq. yards.

12. Trial court has also held that it was for the

appellant/plaintiff to show that the property of which possession was

claimed was property no. A-27 but in this regard appellant/plaintiff

miserably failed because appellant/plaintiff's two site plans showed

difference of the measurements of the plots with the most important

fact being that if there was doubt as to whether the property in

possession of the respondent nos. 1 and 2/defendant nos. 1 and 2 falls

in Khasra No. 822 as contended by the appellant/plaintiff or in Khasra

No. 824 as contended by respondent nos.1 and 2/defendant nos. 1 and

2 then the property could have been got demarcated from the revenue

authorities but admittedly appellant/plaintiff took no such steps to get

the demarcation done. Trial court in this regard also rightly further

observed that appellant/plaintiff led no evidence of municipal

numbering of the suit property from the municipal record that the suit

property was A-27 and not C-23 as contended by the respondent nos.

1 and 2/defendant nos. 1 and 2. Accordingly, trial court dismissed the

suit by holding that the appellant/plaintiff failed to prove that the

property in possession of the respondent nos. 1 and 2/defendant nos. 1

and 2 was A-27 of which ownership was claimed by the

appellant/plaintiff. The relevant observations of the trial court in this

regard are contained in paras 9.1 to 9.13 and these paras read as

under:-

"9.1. All the three issues are with respect to the suit property and directly dependent on its identity.

As per plaintiff the number of the suit property is A-27 and it falls in khasra number 822 of village Mandwali: Fazalpur, Delhi, whereas, as per defendant No.1 & 2 the property with respect to which case has been filed is bearing number C-23, West Vinod Nagar, Narwana Road, Delhi and it falls in khasra No. 824. The plaintiff has described the property in para 2 of the plaint as under:-

"That the plot of land measuring 200 sq. yards on which the above said house was constructed bears private No. A-27, West Vinod Nagar, Narwana Road, Delhi-110092, which is bounded as under:-

               North          :             Road
               South          :             Road
               East           :             Pulia Nala





                                             Later on converted and at present
                                            there is a street/road.
              West            :             Other built up property"
      9.2     The plaintiff examined as PW1 relied upon exhibited two site plans

in para (a) on page 12 of his affidavit Ex.PW1/A, which is reproduced as under:-

"(a) Site plan showing the original construction of the premises in question duly signed by the deponent is Ex.PW1/1. Now latest and new construction shown in site plan Ex.PW1/1A."

9.3 The two site plans filed by the plaintiff are contradictory to each other as far as dimensions of the property are concerned and the difference is brought out in a tabular form as under:-

      Site Plan          North         East            South            West
      Ex. PW1/1          60'           12'6"           -                48'
      Ex.PW1/1A          83'           9'              87'              55'

9.4. As per plaintiff the only difference in the two plans is that the second plan Ex.PW1/1A shows the new construction on the property, however, in the opinion of the court the very dimensions of the suit property in the two site plans are so different that the same cannot be reconciled.

9.5 Thus, the area and dimensions of the suit property could not be proved by plaintiff and unless the dimensions and area of the suit property are proved, a decree of possession cannot be passed in his favour. Thus, on this sole ground alone the plaintiff is not entitled to relief of possession. 9.6 Now coming to the municipal number of the property. The onus to prove the municipal number of the property is upon the plaintiff as it is he who has approached the court for relief of possession of a particular property bearing No. A-27.

9.7. The plaintiff, in order to prove the number of the suit property, relied upon title documents of property Mark A to H and Ex.PW1/10 to Ex.PW1/15. In the documents Mark A to Mark H there is no mention of the number of property. It is interesting to note that in document Mark F and Mark G i.e. GPA and Agreement dated 06.07.1984 executed by R.C. Kohli in favour of Trilok Singh, the address of Trilok Singh is mentioned as "A-43/2, West Vinod Nagar, Delhi", which means that numbers were already allotted in A block West Vinod Nagar at least up to number 43/2, but the same documents do not bear property number as A-27, West Vinod Nagar. The reason for the same remains unexplained. The number of the property for the first time finds mention in document Ex.PW1/11 to 1/15 dated 30.10.1996 without any mention of the fact that as to how and when municipal number was assigned to the property. It is again interesting to note that the property number for the first time finds mention in title documents dated 30.10.1996 and in less than a month, it is alleged that defendant no. 1 and defendant no. 2 criminally

trespassed into the suit property on 24.11.1996, but no suit was filed for recovery of possession, rather, the property was sold to plaintiff in December 1998. Thus, the title documents filed by plaintiff are of no value to prove that the number of the suit property is A-27. 9.8 The plaintiff in his cross examination was questioned about possession of property and he testified "the person from whom I had purchased the suit property was in possession of the suit property. It is wrong to suggest that neither I nor my predecessor in interest was having any physical possession of the suit property". The said testimony is contrary to the contents of plaint as in the plaint and affidavit, the plaintiff stated that defendant No. 1 and defendant No. 2 trespassed into suit property in 1996 whereas he purchased the property in 1998. 9.9. Thus not only the plaintiff failed to prove the number of the property, but he also failed to explain as to why he purchased a property which was occupied by trespassers and why the said fact was not recorded in the title documents.

9.10. The best way to prove the number of a property is by summoning the record with respect to the number of the houses in a society from the concerned authority or in case of a private colonized society from such colonizer or RWA/Panchayat, if the colonizer is not available. 9.11. The plaintiff made no such efforts to summon relevant record of municipal number of suit property from any of the concerned persons/bodies and he himself also failed to produce relevant documents to prove the municipal number of suit property.

9.12. Now coming to the argument of the plaintiff on issue No. 2, the plaintiff has argued that he has proved that he is the owner of property number A-27 by producing the relevant title deeds. However, it has been observed earlier these title deeds do not prove that the property with respect to which the suit has been filed bears municipal number A-27. It is one thing to prove that a person is owner of a particular property and it is another to prove that the suit has been filed with respect to the said property only. In the present case the defendants have not challenged the ownership of the plaintiff qua property number A-27, as in paragraph No. 2 on page 5 of the written statement defendants No. 1 & 2 have categorically stated that they have no concern with property bearing number A-27.

9.13. As per the defendants the property with respect to which the suit has been filed is situated in Khasra No. 824 and bears municipal number C-23, whereas according to plaintiff the suit property is situated in Khasra No. 822 and bears municipal number A-27. The plaintiff could have easily proved that the suit property falls in Khasra No. 824 and not in Khasra No. 822, by getting the property demarcated and by proving demarcation report before the court, but no such steps were taken by the plaintiff. The plaintiff instead of standing on his own feet, is trying to rely upn the testimony of the defendants to prove that the suit property falls in

Khasra no. 822 and that it bears municipal number A-27. However, even from the testimony of the defendants, the plaintiff is unable to extract an admission that he suit property falls in Khasra no. 822 and that it bears municipal number A-27. Though, DW-1 Sudha Gupta, in her cross examination, admitted that the adjoining property bears municipal number A-24, but she clarified that it was block A and now it is block C. She also testified that property bearing number A-27 is located in front of the gali opposite to her property and that the same is constructed upto 3-4 stories. The said witness also relied upon several documents like water bills, ration card, voter ID cards etc in order to prove that defendants No. 1 & 2 are in possession of property number C-23 and not in possession of property number A-27." (underlining added)

13.(i) I completely agree with the aforesaid findings because if

the appellant/plaintiff claimed the suit property to be numbered A-27

falling in Khasra No. 822 and not C-23 falling in Khasra No. 824 as

contended by respondent nos. 1 and 2/defendant nos. 1 and 2 then it

was very simple and easy for the appellant/plaintiff to get the property

demarcated from the revenue authorities, but this the

appellant/plaintiff failed to do. Equally, it is important to note that the

number of the property of the appellant/plaintiff as A-27 is shown

only for the first time in the title documents of the appellant/plaintiff

but in prior documents of alleged ownership of the suit property there

is no mention of the property by its number as A-27 and the trial court

has in this regard also rightly observed that in fact in an earlier title

document/sale deed the property number of the property of which the

appellant/plaintiff claims ownership is shown a totally different

number of A-43/2, West Vinod Nagar, Delhi.

(ii) Also, in my opinion, trial court has rightly relied upon the vast

differences in the measurements of two site plans filed by the

appellant/plaintiff and as detailed in paras 9.3 and 9.4 of the impugned

judgment which have been reproduced above.

14. In view of the above, there is no merit in the appeal. The

appeal as also the interim application is dismissed, leaving the parties

to bear their own costs.

MAY 01, 2018/ib                            VALMIKI J. MEHTA, J