Pawan Mehra vs Paras Ram
2018 Latest Caselaw 5858 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        RFA No. 602/2006
+                        RFA No. 601/2006
+                        CONT. CAS (C) 864/2012

%                                                 27th September, 2018

+     RFA No. 602/2006

PAWAN MEHRA
                                                          ..... Appellant
                         Through:        Mr. P.K. Sharma, Advocate
                                         (Mobile No. 9811283658).
                         versus
PARAS RAM
                                                         ..... Respondent

                         Through:        Mr.   Ajit     Kumar      Singh,
                                         Advocate       (Mobile       No.
                                         9899204289).
+     RFA No. 601/2006

PAWAN MEHRA
                                                          ..... Appellant
                         Through:        Mr. Naresh Kaushik and Mr.
                                         Devik    Singh,       Advocates
                                         (Mobile No. 8888556671).
                         versus
BANWARI LAL
                                                        ..... Respondent
                         Through:        Ms. Laxmi Singh, proxy
                                         Advocate for Mr. Ajit Kumar
                                         Singh, Advocate (Mobile Nos.
                                         9654013250, 9899204289).




RFA No. 602 /2006, RFA No. 601 /2006 &

 +     CONT. CAS (C) No. 864/2012

SONAL MEHRA
                                                          ..... Petitioner
                          Through:       Mr. P.K. Sharma and Mr.
                                         Manish Sharma, Advocates
                                         (Mobile No. 9811283658).
                 versus
BANWARI LAL AND ORS.
                                                       ..... Respondents
                          Through:       Ms. Laxmi Singh, proxy
                                         Advocate for Mr. Ajit Kumar
                                         Singh, Advocate (Mobile Nos.
                                         9654013250, 9899204289).
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)


RFA No. 602/2006

1. 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 22.07.2006 by which

the trial court has dismissed the suit for possession and mesne profits

filed by the appellant/plaintiff and against the respondent/defendant

with respect to the suit property comprising of one room, one finished

RFA No. 602 /2006, RFA No. 601 /2006 &

kitchen, bathroom and latrine in the property no. WZ-436, Village

Tihar, Hari Nagar, New Delhi, situated in erstwhile revenue record as

Khasra Nos. 2066 and 2078/2, and as shown in Red in the Site

Plan/Ex PW1/2.

2. The facts of the case are that the appellant/plaintiff

pleaded that he is the co-owner of the suit property, and since the

respondent/defendant was a trespasser in the suit property, hence the

respondent/defendant was asked to vacate by serving a Legal Notice

dated 22.11.2002. However, the respondent/defendant failed to vacate

the suit property hence the subject suit for possession was filed in

which mesne profits were also claimed at Rs. 2,000/- per month from

three years prior to the filing of the suit.

3. The respondent/defendant contested the suit by filing

written statement. It was pleaded by the respondent/defendant that he

was the owner of the suit property because he had purchased it from

Sh. Ganesh. It was also pleaded by the respondent/defendant that he

had become owner of the suit property on account of adverse

possession.

RFA No. 602 /2006, RFA No. 601 /2006 &

4. The only issue which has to be examined by this Court, is

the sole issue which was argued on behalf of the

respondent/defendant, and which is as to whether

respondent/defendant has become the owner of the suit property by

adverse possession. So as to complete the narration, I would like to

add that the trial court, as per the detailed discussion in paras 9 to 11

of the impugned judgment, has held that respondent/defendant is the

co-owner of the suit property, and this detailed discussion includes

reference to the Revenue Record Ex.PW4/1 to PW4/4, showing the

name of the appellant/plaintiff and his predecessors-in-interest as co-

owners of the suit property. Reference is also made in these paras to

earlier litigation for partition between the co-owners and the decree

passed in this regard dated 09.03.1987 has been proved and exhibited

as Ex.PW5/11.

5. Adverse possession in law has to be proved and

established by a person who claims to be in adverse possession

showing nec vi, nec clam, nec precario i.e. open, hostile and

continuous possession. Mere possession is not adverse possession and

unless and until possession is accompanied by an assertion of title,

RFA No. 602 /2006, RFA No. 601 /2006 &

hostile to the true owner, the possession does not become adverse

possession. Article 65 of the Limitation Act, 1963, states that where a

person files a suit for possession of an immovable property claiming

title, a cause of action accrues and limitation for filing a suit for

possession based on title commences when the defendant is shown to

have pleaded and proved assertion of a title adverse to that of the

plaintiff. Therefore, the point of time of assertion of hostile title is the

specific point of time, arising of the cause of action for claiming

ownership by adverse possession of 12 years by a defendant in a suit.

6. Let us examine in this case as to whether there is

assertion of any hostile title by the respondent/defendant against the

appellant/plaintiff or any other co-owner or against the world at large.

I may note that it is not in dispute that the respondent/defendant is said

to be in possession of the suit property since around 1986-87 and the

subject suit has been filed on 20.01.2003. However, the issue requiring

decision is not length of possession but length of possession of at least

12 years accompanied by an assertion of hostile title in favour of the

respondent/defendant.

RFA No. 602 /2006, RFA No. 601 /2006 &

7. In my opinion, the respondent/defendant has miserably

failed to prove that he has been in adverse possession of the suit

property. The trial court has also committed a gross illegality in

holding that the respondent/defendant is in adverse possession by

simply referring to the factum of possession of the suit property by the

respondent/defendant since 1986/1987. As already stated above,

possession is not automatically adverse possession. It is a indubitable

position appearing on record that though respondent/defendant

claimed ownership of the suit property by purchase from one Mr.

Ganesh, however, how Mr. Ganesh became the owner, what are the

documents by which Mr. Ganesh became owner, what are the

documents which Mr. Ganesh executed in favour of the

respondent/defendant etc., have thus not been filed and proved by the

respondent/defendant. Therefore, there is no document to show thaty

the claim of ownership of the respondent/defendant on account of

having purchased of the suit property by from Mr. Ganesh. Thus, the

respondent/defendant cannot claim possession through title on account

of purchase of the suit property from Mr. Ganesh allegedly claimed to

be from the year 1975. It is seen that respondent/defendant has not led

RFA No. 602 /2006, RFA No. 601 /2006 &

any evidence of writing to any public authority, be it the Municipal

Corporation for the purpose of mutation or any other aspect of

property tax issue or the income tax authority or the police etc.

establishing that the respondent/defendant was the owner of the suit

property. Not only there is no assertion of title existing in the

respondent/defendant by stating so to any public authority,

respondent/defendant has also never issued any notice to the

appellant/plaintiff or any other co-owner claiming ownership title in

the suit property by having purchased the same from Mr. Ganesh or

how and in what other manner the ownership title is asserted as

against the appellant/plaintiff or the other co-owners. Rights in

valuable immovable properties cannot be lost by self-serving

statements and ipse dixit of assertion of title and therefore this Court

rejects the argument and evidence led on behalf of the

respondent/defendant that he has become the owner by adverse

possession by assertion of a hostile title. Proving of assertion of a

hostile title is to the satisfaction of the court on preponderance of

probabilities, and in the opinion of this Court, in the facts of the

present case, the oral averments of the respondent/defendant will not

RFA No. 602 /2006, RFA No. 601 /2006 &

be sufficient for holding that the respondent/defendant has discharged

the onus of proof upon him with respect to assertion of a hostile title.

It is, therefore, held that the appellant/plaintiff is a co-owner and

hence entitled to possession of the suit property and that the

respondent/defendant has failed to prove that he was/is in possession

of the suit property as owner by adverse possession.

8. Now, this Court will have to determine what are the

mesne profits which have to be paid by the respondent/defendant to

the appellant/plaintiff. Whereas the appellant/plaintiff has claimed

mesne profits at Rs.2,000/- per month with respect to the suit property

which as stated above comprises of one room, one kitchen, one

bathroom and one latrine in Hari Nagar, Delhi, the

respondent/defendant in the cross-examination has put a suggestion to

the plaintiff as PW-1 that rate of rent of the area for the premises such

as the suit premises would only be Rs. 300/- per month. Therefore, we

have a starting figure of Rs. 300/- per month being the rate of rent of

the suit premises. The issue is whether mesne profits should be

granted only at Rs. 300/- per month or at Rs. 2,000/- per month as

claimed by the appellant/plaintiff or at any other different figure.

RFA No. 602 /2006, RFA No. 601 /2006 &

9. In my opinion, this Court is entitled to take judicial notice

of the rents prevailing in Delhi in the year 2003 with respect to the suit

property which is situated in Hari Nagar, New Delhi, and in the year

2003, this Court would like to draw judicial presumption in the facts

of the present case that the suit property will have rental value of at

least Rs. 1,000/- per month. Therefore, the appellant/plaintiff will be

entitled to mesne profits at rate of Rs. 1,000/- per month from three

years prior to filing of the suit on 20.01.2003 and till the filing of the

suit, and pendente lite and future thereafter at Rs.1,000/- per month

which shall be increased by 15% every three years in view of Section

26 of the Delhi Rent Control Act, 1958 which allows a landlord to

increase rent by 15% every three years. Increase of rent by 15% every

three years will be compounded in the sense that each increase of rent

of 15% will be of 15% over the last rate of mesne profits/rent which

has been determined with the first 15% increase commencing from the

date of filing of the suit and which is three years after the first end of

three years arrears period towards the claim of the mesne profits. The

appellant/plaintiff is also entitled to interest on mesne profits @ 6%

per annum simple in view of definition of mesne profits contained in

RFA No. 602 /2006, RFA No. 601 /2006 &

Section 2(12) CPC which provides that mesne profits will include

interest on mesne profits. The appellant/plaintiff is also held entitled

to costs of the suit and the present appeal.

10. Accordingly, this appeal is allowed. Suit of the

appellant/plaintiff is decreed with costs for possession of the suit

property comprising of one room, kitchen, bathroom and latrine

situated in WZ-346, Village Tihar, Hari Nagar, Delhi and as shown in

red colour in the site plan Ex.PW1/2 alongwith a decree for mesne

profits as stated in the preceding para. Decree sheet be prepared.

RFA No. 601/2006

11. The facts of this case are identical to the facts of RFA No.

602/2006 with the difference that the seller to the

respondent/defendant in the present case is alleged to be one Sh.

Laxman. Therefore, this appeal is allowed and the suit of the

appellant/plaintiff is decreed with costs for possession of the suit

property comprising of one room, kitchen, bathroom and latrine

situated in WZ-346, Village Tihar, Hari Nagar, Delhi and as shown in

red colour in the site plan in this suit Ex.PW1/2. A decree for mesne

profits is also passed at the rate of Rs. 1000/- per month commencing

RFA No. 602 /2006, RFA No. 601 /2006 &

from three years prior to the suit with 15% compounded increase after

every three with first increase of 15% being from the date of filing of

the suit. The appellant/plaintiff will also be entitled to interest @6%

per annum till payment on the mesne profits payable from the end of

each month. Decree sheet be prepared.

CONT. CAS (C) No. 864/2012

12. Disposed of as not pressed.

SEPTEMBER 27, 2018/AK                       VALMIKI J. MEHTA, J




RFA No. 602 /2006, RFA No. 601 /2006 &