Rajesh Anand vs Rahul Wadhwani & Anr
2019 Latest Caselaw 6258 Del

$~18
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Date of decision: 5th December, 2019
+             CM (M) 1375/2018 & CM APPL. 46175/2019
     RAJESH ANAND                                       ..... Petitioner
                  Through: Mr. S.K. Sharma & Mr. Yugant
                             Kuhar, Advocates (M-9999989082)
                  versus
     RAHUL WADHWANI & ANR                          ..... Respondents
                  Through: Mr. Ajayinder Sangwan, Mr. Sachin
                             Sangwan, Mr. Sachin Choudhary &
                             Mr. V.P. Singh, Advocates (M-
                             9811164628)
     CORAM:
     JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J(Oral)

1.     The Plaintiff/Petitioner (hereinafter, "Plaintiff") is aggrieved by the
impugned order dated 1st June, 2018, by which the ld. ADJ has dismissed the
application under Order XV-A CPC.
2.     The case of the Plaintiff is that he is the owner of shop bearing No.6
(private No.6A), adjoining Shop No.5, Central Market, Lajpat Nagar, New
Delhi - 110024 (hereinafter, "suit property"). The Plaintiff claims to have
purchased the suit property from one Ms. Pushpa Kapoor vide registered sale
deed dated 7th September, 2015. A copy of the registered sale deed has been
placed on record. In clause 2 of the said sale deed, the earlier owner had
informed the Plaintiff that the suit property was under the tenancy of
Respondent No.1/Defendant No.1 - Mr. Rahul Wadhwani (hereinafter,
"Defendant No.1"). As per this clause in the sale deed, the tenant was paying
a monthly rent of Rs.1,50,000/- and the right to recover the same was vested
in the Plaintiff. Accordingly, the Plaintiff filed a suit for possession and




CM (M) 1375/2018                                                        Page 1 of 12
 recovery of arrears of rent with interest, mesne profits and permanent
injunction.
3.     After completion of the pleadings in the suit, the following issues were
framed:
           "A. Whether plaintiff is entitled to a decree of
           possession of suit property bearing no. 6 (private no.
           6A), Central Market, Lajpat Nagar, New Delhi-
           110024? OPP.
           B. Whether plaintiff is entitled to a decree towards
           arrears of rent of Rs. 24,07,500/- from 1.11.2014 till
           31.01.2016? OPP
           C. Whether plaintiff is entitled to any interest if so, at
           what rate and for which period? OPP
           D. Whether plaintiff is entitled to any damages / mesne
           profits / user charges if so, at what rate and for which
           period? OPP.
           E. Whether there is no relationship of landlord and
           tenant between the parties? OPD
           F. Whether the defendant no.1 has become the owner of
           suit property by way of adverse possession? OPD
           G. Whether the suit has not been properly valued for
           the purpose of jurisdiction as well as for the purpose of
           court fee? OPD.
           H. Whether the suit is barred by limitation? OPD
           I., Relief."
4.     The suit is pending for recordal of evidence of the parties. At this
stage, the Plaintiff moved an application under Order XV-A CPC, seeking
deposit/payment of market rent as no amount was being paid by the
Respondents/Defendants (hereinafter, "Defendants"). The said application
was dismissed vide the impugned order dated 1st June, 2018. The
observations of the ld. ADJ are as under:
           "10. This provision pre-supposes the relationship of
           landlord and tenant or the licence and licencee between



CM (M) 1375/2018                                                        Page 2 of 12
            parties which is not so admittedly. In order to decide
           this application, this court can not go into the merit of
           the defence taken up by the defendant. The defendant
           had taken the defence of becoming the owner of the suit
           shop by way of adverse possession. The plaintiff had
           not filed any such agreement or receipt showing
           payment of rent of Rs.1,50,000/- by defendant no. 1 to
           plaintiff or his predecessor in interest i.e. Smt. Pushpa
           Kapoor. The apprehension which the plaintiff has
           shown in para no. 11 of the application can not redress
           by passing order this application. For the reasons,
           stated above, this application is found to be devoid of
           any merits, hence dismissed."

5.     Ld. counsel for the Plaintiff submits that the Defendants are
admittedly tenants. The sale deed and clause 2 therein is relied upon by the
Plaintiff. It is further submitted that the wife of Defendant No.1, i.e.
Defendant No.2/Respondent No.2, filed a complaint before the SHO, Lajpat
Nagar, making various allegations against the Plaintiff. In the said complaint,
it was clearly admitted that the Defendant is a tenant in the property. Ld.
counsel for the Plaintiff submits that the said complaint was taken
cognizance of and an FIR was also registered against the Plaintiff, which is
still pending investigation. It is further submitted that in the cross-
examination conducted in the said FIR, Defendant No.1 - Mr. Rahul
Wadhwani, himself admitted that he was a tenant in the suit property. In
view of these admissions, ld. counsel relies on the judgment in Raghubir Rai
v. Prem Lata & Anr. [FAO(OS) 597/2013, decided on 15th May, 2014],
passed by a Division Bench of this Court, as per which the provisions of
Order XV-A CPC clearly empower the Court to fix the market rent and the
Court ought to take a view at this stage itself as to whether any amount is
liable to be deposited by the tenant.



CM (M) 1375/2018                                                        Page 3 of 12
 6.     On the other hand, ld. counsel for the Defendants submits that there is
no illegality or perversity in the impugned order. In fact, he submits that a
reading of the issues which have been framed shows that the main issue that
is left to be adjudicated is the claim of adverse possession. He submits that as
per the sale deed itself, there is no rent agreement between the parties. There
is also no rent receipt, as the clause in the sale deed clearly states that the
sum of Rs.1,50,000/- was being paid in cash. Thus, in the absence of a
written rent agreement and any rent receipt in favour of Ms. Pushpa Kapoor,
no rights vest in the Plaintiff to claim any rent from the Defendants.
7.     Ld. Counsel further submits that, in fact, the Defendants are in
possession of the suit property since 15th January, 2000 and hence, the
Defendants have become the owners of the suit property, by adverse
possession. He thus submits that any adjudication at this stage, by fixing any
amount for deposit under Order XV-A CPC, for use and occupation, would
be prejudicial to the Defendants, especially when the Defendants have a
strong case on merits. Ld. counsel relies upon the recent judgment of the
Supreme Court in Ravinder Kaur Grewal and Others v. Manjit Kaur and
Others, (2019) 8 SCC 729 to argue that the plea of adverse possession can be
used as a shield and a sword. In the present case, the Defendants are using
the same to resist the suit filed by the Plaintiff so that until and unless the
plea of adverse possession is adjudicated, no amount is liable to be
deposited.
8.     This Court has heard the ld. counsels for the parties and perused the
record, as well as the judgments cited by the parties. Ms. Bhumika Ahuja -
Defendant No.2/Respondent No.2 was present in Court. Since the complaint
was filed by her against the Plaintiff, her statement was recorded today. Her



CM (M) 1375/2018                                                         Page 4 of 12
 statement reads as under:
           "Statement of Ms. Bhumika Ahuja W/o Shri Rahul
           Wadhwani, R/o F-Ist 250, Madan Gir, Delhi.
           (M:8130056263)
           On S.A.
               I am aware of Shop no.6, Central Market, Lajpat
           Nagar, New Delhi. I was married to Mr. Rahul
           Wadhwani 10 years ago, and since then, I am aware of
           this shop. I also sit in the shop along with my husband.
           We sell footwear in the shop. I am not aware as to who
           is the landlord of this shop. We are not paying any rent
           to anyone. I know Mr. Rajesh Anand, the owner of the
           next shop. He runs a shop selling gold jewellery. I
           have filed FIR No.0831/2015, Lajpat Nagar Police
           Station, South East, Delhi. I gave a hand written
           complaint on 9th October, 2015 to the SHO, Lajpat
           Nagar. Whatsoever I have written in my complaint to
           SHO, Lajpat Nagar is true. Currently I am running the
           shop and my husband is only involved in supplying
           footwear to the local markets."

9.     A perusal of the statements made in the complaint filed to the SHO
shows that a categorical assertion has been made to the following effect:
           "I am Bhumika Ahuja running a Shop No.6, Central
           Market, Lajpat Nagar, Sukanya Footwear from last 15
           yrs, as a tenant."
10.    The said complaint is dated 9th October, 2015. Subsequent to the said
complaint being filed, an FIR has also been registered with the Lajpat Nagar
Police Station on 9th October, 2015, which is currently under investigation. A
copy of the cross-examination recorded in the said proceedings, which has
been produced before the Court, clearly shows that Defendant No.1 made a
statement to the following effect:
           "Q: In your statement to the police U/S 161 Cr.PC you



CM (M) 1375/2018                                                        Page 5 of 12
             have stated that your staff namely Rahul and Amrish
            used to sleep outside the shop for guarding
            (chawkidari) the shop, but today in the court you have
            stated that they sleep outside the shop as they have no
            place to sleep. Which of your statement is correct?
            A: My statement made to the police is correct. The
            possession of the shop in which I am a tenant was
            given to me by Mrs. Pushpa Kapoor. ..."

11.    Insofar as these statements and averments are concerned, ld. counsel
for the Defendants submits that these have been made in criminal
proceedings and the same cannot be used in the present suit, where the
Defendants claim right by way of adverse possession. This Court does not
agree with the submission of the Defendants. Any person who puts criminal
law into motion, on the basis of a statement made, that he or she is a tenant
in a particular property, ought to be bound by the said statement. It cannot be
permissible for any party to avail of legal remedies under criminal law by
taking one stand and then take a completely different one in the civil suit
filed and claim adverse possession.
12.    The plea of adverse possession, taken in the written statement, in light
of the statements made in the criminal complaint, the FIR and the cross-
examination, cannot, at this stage, be held to be plausible, inasmuch as the
same is in complete contradiction to the stand taken in the criminal
proceedings. Moreover, in the registered sale deed placed on record, the
earlier owner has clearly represented to the present owner i.e., the Plaintiff,
as under:
            "2. That the Vendor has told to the Vendee that the
            said Half Portion of the said Shop is under tenancy of
            Mr. Rahul Wadhwani S/o Smt. Jyoti Wadhwani, where
            no Rent Agreement was executed and it was a oral



CM (M) 1375/2018                                                        Page 6 of 12
            tenancy, but the tenancy was started from 1st day of
           February, 2013, at the monthly rent of Rs.1,50,000/-
           (Rupees one lakh fifty thousand only) which was
           payable in cash by the tenant and the tenant has not
           paid rent since the last ten months, and therefore
           Vendor has handed over the possession of the said Half
           portion of the said Shop on as is where is basis to the
           Vendee at the time of signing of this Sale Deed and
           also Vendor hereby gives the right to the Vendee to
           recover rent for the last ten months from the tenant and
           to deal with the tenant and get the tenant evicted from
           the said. Half Portion of the said Shop."

13.    The earlier owner Ms. Pushpa Kapoor has served notice dated 10th
October 2015, on the Defendant No.1. However, just one day before the said
notice, i.e., on 9th October 2015, complaint has been filed by Defendant No.2
with the SHO P.S.Lajpatnagar. In the said complaint she states that she is a
tenant. The plea of adverse possession was never taken till the execution of
the sale deed in favour of the Plaintiff i.e., 7th September, 2015.
14.    In the judgment of Raghubir Rai (supra), the ld. Division Bench of
this Court has clearly held that if, on the basis of the pre-ponderance of
probabilities the tenant may not be found to have a right to continue in
possession of the property, some amount ought to be directed to be paid for
the said period. The ld. Division Bench has also clearly drawn a distinction
between the provisions of Order XXXIX Rule 10 CPC and Order XV-A
CPC. The observations of the ld. Division Bench are as under:

           "24. We are of the view that the Court, in exercise of
           powers under Order XV-A of the CPC is empowered to
           direct deposit at such rate as the erstwhile tenant /
           defendant may on the basis of material on record be
           found to have agreed to pay to the landlord for the said
           period even if the tenant before the Court may not have



CM (M) 1375/2018                                                       Page 7 of 12
            admitted the same or disputed / controverted the same.
           Similarly, in a suit between the owner of immovable
           property and an unauthorized occupant, Order XV-A
           empowers the Court to direct the defendant who
           though may not be liable to be ejected / dispossessed
           immediately without trial but who, on preponderance
           of probabilities may not be found to have a right to
           continue in possession of the property, to deposit
           during the pendency of the suit such amount as may
           appear to be reasonable, to safeguard the right of the
           owner of the property and to ensure that such owner is
           compensated at least for the time taken in adjudication
           of a false defence taken up by the defendant in
           unauthorized occupation. This, in our view is
           necessary to avoid the process of the Court being
           abused by unscrupulous litigants and to curb the
           growing tendency of using the process of litigation as a
           tool of oppression.
           25. We should however not be interpreted as laying
           down that Order XV-A empowers the Court to, without
           evidence assess mesne profits or to merely by taking
           judicial notice and without any material on record,
           arbitrarily direct the defendant to deposit a much
           higher amount then what he had been paying or had
           agreed to pay. Reference in this regard can be made to
           the judgment of the Division Bench of this Court in
           National Radio & Electronic Co. Ltd. Vs. Motion
           Pictures Association 122 (2005) DLT 629 laying down
           that mesne profit have to be proved by reliable and
           cogent evidence in accordance with law. Of course, if
           the erstwhile tenant / defendant is found to have agreed
           to periodically increase the rent / user charges, even if
           such contract may have come to an end, in exercise of
           powers under Order XV-A of the CPC direction for
           deposit with such increases can be made unless strong
           grounds exist for such increases being not due.
           ...

28. We are prima facie unable to believe that a

valuable commercial property, as the subject property is, would have been let out at a rent below Rs.3,500/- per month, allowing the letting to fall within the ambit of the Rent Act, whereunder the eviction of a tenant is not only difficult but virtually impossible. Both the parties obviously have been indulging in transactions in cash, perhaps to avoid taxes. We in the circumstances are of the opinion that there is no reason to interfere with the order of the learned Single Judge."

15. Insofar as the judgment in Ravinder Kaur Grewal (supra) is concerned, the principles of adverse possession are well-settled. There is no doubt that on the basis of adverse possession, a party can maintain a suit and can also use the same a defence. However, in the said judgment itself, the Supreme Court has clearly observed that the rights claimed by adverse possession are not to be applied in all cases and various conditions have to be satisfied to claim ownership on the basis of adverse possession. The observations of the Supreme Court are set out hereinbelow:

"60. The adverse possession requires all the three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, nec clam i.e., adequate in publicity and necprecario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it

and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

61. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.

62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff

having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.

63. When we consider the law of adverse possession as has developed vis-a-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession."

16. The Plaintiff has placed on record a lease deed to show the current market rent being paid for the neighbouring property in 2008 and 2015. In the impugned order, the application of the Petitioner under Order XV-A CPC has been rejected without considering all these materials, including the proceedings before the Criminal Court. The ld. Trial Court has simply observed that a landlord-tenant relationship has to be established before any order under Order XV-A CPC can be passed. The order, being unreasoned and cryptic and not considering the documents and pleadings on record and in the criminal proceedings, is not sustainable. The admissions by the Defendants in the criminal complaint and in the cross-examination are too glaring to be ignored. Under these circumstances, at this stage, it is held that a landlord-tenant relationship exists.

17. Admittedly, the tenants are not paying any amount for occupying such a prime commercial property. The sale deed clearly records the representation by the previous owner that the tenants were paying a sum of Rs.1,50,000/- per month as rent and the same was due for more than 10 months, as on the date when the sale deed was executed. There is no reason to disbelieve the said sale deed. Accordingly, at this stage, it is directed, that the Defendants shall deposit before the ld. Trial Court, a sum of Rs.1,50,000/- per month, on or before the 10th of every month, beginning from December 2019 in order to enjoy possession of the suit property. Insofar as the arrears are concerned, the ld. Trial Court would be entitled to pass appropriate orders after adjudication of all the issues.

18. The issues in this matter are stated to have been framed since May, 2016. However, cross-examination of the Plaintiff's witness has not commenced till date. Accordingly, it is directed that the ld. Trial Court shall adjudicate the suit expeditiously. No adjournment shall be granted to either party and any unreasonable adjournment sought shall be liable to be burdened with heavy costs.

19. The petition is allowed in the above terms. All pending applications are disposed of.

20. The next date before Court is cancelled.

PRATHIBA M. SINGH JUDGE

DECEMBER 05, 2019 Rahul