Rohtas Singh Through Ls. vs Union Of India & Ors.
2019 Latest Caselaw 369 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RFA No. 1010/2018

%                                                    21st January, 2019

ROHTAS SINGH THROUGH LS.                                 ..... Appellant
                 Through:                Mr. Mohd. Azam Ansari,
                                         Advocate (M. No.9990066404).
                          versus

UNION OF INDIA & ORS.                                  ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

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

of Civil Procedure, 1908 (CPC) is filed by the legal heir of the original

plaintiff, impugning the Judgment of the trial court dated 05.07.2017,

by which the trial court has dismissed the suit for declaration and

possession filed by the plaintiff with respect to a 500 sq. yds. plot

situated at Sansad Marg/Parliament Street, New Delhi. The suit was

filed by the original plaintiff Sh. Rohtas Singh who died on

20.04.2011 during the pendency of the suit and now the appellant

being the legal heir of the original plaintiff has filed this appeal

challenging the impugned judgment.

2. The facts of the case are that, ownership by adverse

possession is claimed by the appellant/plaintiff with respect to 500 sq.

yds. plot situated at H-2, Cycle Stand behind Jeevan Tara Building,

Sansad Marg, New Delhi. This court notes that a plot of 500 sq. yds.

in Sansad Marg/Parliament Street would be of a value of around Rs.

100 Crores. It was pleaded that the plaintiff and his family members

were working as domestic servants in the neighborhood and that the

documents in this regard were filed. It was claimed by the plaintiff

that the suit property was assessed to municipal tax since 24.04.1952

in the name of Sh. Nanka (father of the original plaintiff, Sh. Rohtas

Singh) under Municipal Quarter No. 37, Block No.122, New Delhi. It

was pleaded that the plaintiff had uninterrupted and exclusive

possession of the property for the last 40 years, and therefore, the

plaintiff had become owner by adverse possession. It was further

pleaded that the plaintiff was thereafter illegally dispossessed by

respondent no. 2/defendant no. 2/Delhi Metro Rail Corporation on

31.01.2001. It was pleaded by the plaintiff that he came to know that

he was dispossessed because the said suit property had been allotted to

Delhi Metro Rail Corporation (hereinafter 'DMRC'). The suit was

therefore filed seeking the following reliefs: -

"(a) Declare the plaintiff as the true and lawful owner of the suit property including by way of adverse possession and prescription.

(b) Direct the defendants to deliver vacant possession of the suit property to the plaintiff after removing the structures thereon.

(c) Direct the defendants to pay future mesne profits to the plaintiff for wrongful possession of the suit property from the date of institution of the suit till the date of payment."

3. The suit was contested by respondent no. 2/defendant no.

2/DMRC which sought dismissal of the suit by pleading that the suit

filed was a false and frivolous case as the DMRC was allotted the

2016.5 sq. mtrs of land of Bungalow No. 23 and 999.72 sq mtrs of

land of Bungalow No. 25 of Ashoka Road also known as Cycle Stand

by the Ministry of Urban Development and Poverty Alleviation,

Government of India on 28.04.2000 and 12.05.2000. Encroachment in

the area was removed and development of the site was done by

DMRC. It was further stated that the plaintiff had illegally encroached

not upon 500 sq. yds. plot but an area of 40 sq. mtrs. of the property,

and that the plaintiff had no right, title and interest over the suit

property. It was denied that the plaintiff was running a cycle stand at

the suit property since 1940. It was also denied that the plaintiff was

paying municipal tax on the property since 20.04.1952. The suit was

therefore prayed to be dismissed.

4. The following issues were framed in the suit:

"1. Whether the suit of the plaintiff is barred by the provisions of the Specific Relief Act, and if so, to what effect? OPD

2. Whether the suit has been valued property and in accordance with law for the purposes of court fee and jurisdiction? OPP

3. Whether the present suit is barred by the principles of res judicata/constructive res judicata in view of the averments made in paragraph 5 of the preliminary objections of the written statement filed by defendant no.2. OPD-2.

4. Whether the plaintiff is entitled to be declared as owner of the property, even by adverse possession? OPP

5. Whether the suit has been instituted after serving notice upon the defendants in accordance with law? OPP

6. What relief the plaintiff is entitled to? OPP.

Additional Issue dated 21.01.2013-

7. Whether the plaintiff is entitled to the relief of possession as prayed? OPP."

5. Evidence led by the plaintiff is recorded in paras 16 to 19

of the impugned judgment, and these paras read as under:

"16. To prove his case, plaintiff Shri Rohtas Singh examined himself as PW1. This evidence was qua unamended plaint recorded in July, 2006. In his affidavit Ex.PW1/A he deposed on the lines of the plaint and has exhibited following documents:

    S. No.      No. of Exhibits                 Details of the documents
      1.          Ex.PW1/1            Copy of site plan
      2.       Ex.PW1/2(colly)        Copies of relevant documents bearing
                                      proof of address
      3.          Ex.PW1/3            Copy of the letter dated 24.04.1952
      4.          Ex.PW1/4            Copy of the letter dated 05.05.2000
      5.          Ex.PW1/5            Copy of letter dated 03.08.2000
      6.          Ex.PW1/6            Copy of letter dated 28.08.2000
      7.          Ex.PW1/7            Copy of the legal notice dated 05.08.2000
      8.          Ex.PW1/8            Copy of WP No. 5655/2000
      9.          Ex.PW1/9            Copy of the plaint in S. No.601/2000
     10.          Ex.PW1/10           Copy of the order dated 30.04.2001.

17. He also filed an additional affidavit dated 21.03.2011 for placing the statement of account and pension record but the same was not tendered in evidence since he died on 20.04.2011. In his cross- examination he accepted that the site plan Ex.PW1/1 filed by him was got prepared by him. He claimed that he was evicted by DMRC. Upon being asked he accepted that he is not aware whether he has any ownership right in respect of the suit property. He simply stated that his deceased father might have been aware of that. He denied the suggestion that there was no property by the name House No.2 or that Banglow No .23 and surrounding areas are owned by Government. He accepted that his late father Shri Nanak Ram was a Safai Karamchari in Banglow No. 23, Ashoka Road. He also accepted that prior to filing of this suit he filed a Civil Writ Petition before Hon'ble High Court and that he was removed from the property during the pendency of the Writ Petition. He denied that he was an encroacher of the Government land or that he was rightfully removed and possession was handed over to DMRC for construction of Delhi Metro. In his cross-examination done on behalf of the NDMC he accepted that he never paid any House Tax to NDMC. He simply added that his father might be aware of any such payment made while referring to Ex.PW1/3 dated 24.04.1952. He also denied that he is not aware if any site plan approved from NDMC from the claimed construction carried out at the spot.

18. Second witness examined by the plaintiff is PW2 Shri Ravinder Singh an employee of Department of Posts Ministry of Communication Government of India. In his affidavit Ex.PW2/A he stated that he came to Delhi on 18.08.1969 and he stayed that plaintiff Shri Rohtas Singh at his House No.H-2 also known as Cycle stand behind Jeevan Tara Building, Sansad Marg for three months. He was a regular visitor to the plaintiff even after 1969. As per him the construction was a kacha house consisting of four rooms and a bathroom

with a hand pump. As per him, the plaintiff was staying continuously in this house till 31.01.2001 when he was evicted by DMRC.

19. Third witness examined was PW3 Shri Hans Raj son of plaintiff Shri Rohtash Singh who is serving as an employee of Hon'ble Supreme Court of India. He deposed that since his birth in 1965 he has been staying in the suit property till such time he was evicted on 31.01.2001 by DMRC. They had constructed seven rooms on the plot. In his cross-examination he accepted that a notice was given by DMRC. He expressed unawareness that the suit property belonged to Government of NCT of Delhi. He added that some title documents in the name of his father were filed on record. He stated that he has not been allotted any alternative accommodation by Government of NCT of Delhi but the same was allotted in his father's name."

6. The trial court by referring to the evidence led in the case

has dismissed the suit by noting various aspects. The trial court has

noted that on being cross-examined PW-1 (Sh. Rohtas Singh) did not

know as to who had the ownership rights of the suit property because

he has stated that his deceased father (original plaintiff) would be

aware of the ownership rights. PW-1 had also accepted that his father

Sh. Nanak Ram was a Safai Karamchari in Bungalow No.23, Ashoka

Road. In his cross examination, he also admitted that he has never

paid any house tax to New Delhi Municipal Council (hereinafter

NDMC). PW-1 has further stated that his father would be aware of

payment made when reference was made to the document Ex.PW1/3,

and this document pertained to a property Municipal Quarter no. 37

Block no. 122, New Delhi which is infact a different property than the

suit property. I may note that the witness PW-3 (Sh. Hans Raj) stated

that he was a serving employee of the Hon'ble Supreme Court of

India, and he too admitted that he was not aware that the suit property

was belonged to the Government of NCT of Delhi. It was also

admitted that he was evicted from the suit premises on 31.01.2001 by

DMRC.

7. The trial court in my opinion has rightly referred to the

evidence of the DMRC, and on whose behalf Sh. A.S. Salunkhe has

deposed as DW-1. DW-1 proved the necessary allotment letters and

handing over possession as Ex.DW1/1 issued by L&DO Government

of India. He stated that the plaintiff was not in possession of 500 sq.

yds. as claimed by him. He also stated that the plaintiff had illegally

encroached upon a small portion of 40 sq. yds. of which he was in

illegal occupation and the plaintiff was removed being an illegal

encroacher. He also denied that any 7 pakka rooms were constructed

at the spot.

8. In law adverse possession has to be proved nec vi, nec

clam, nec precario i.e open, hostile and continuous. Courts do not

easily accept pleas of adverse possession because adverse possession

commences in a wrong and is maintained against a right. On the basis

of just one document being Ex.PW1/3 and that too with respect to

Municipal Quarter No. 37, it cannot be held that the plaintiff was in

adverse possession of the suit plot of 500 sq. yds. for 40 years prior to

31.01.2001. Sansad Marg/Parliamentary Street is one of the costliest

areas in Delhi and the trial court has rightly rejected this endeavor of

the appellant to claim adverse possession of 500 sq. yds. in Sansad

Marg/Parliamentary Street.

9. Unfortunately, in a city like Delhi, and more so as is often

referred to as this Kalyug, people will stop at nothing to acquire

material things. The plaintiff was one such person who wanted

ownership by adverse possession of a plot of 500 sq. yds. in Sansad

Marg/Parliament Street. It is most unfortunate that the appellant as

well as the plaintiff were indigent persons and they have been allowed

to contest the suit as well as file this appeal without paying any court

fee, but indigency does not mean entitlement to be dishonest.

10. In view of the aforesaid discussion, there is no merit in

the appeal and the same is dismissed with costs of Rs. 25,000/- and

these costs shall be deposited by the appellant with the website

www.bharatkeveer.gov.in, noting that one of the legal heirs of the

deceased plaintiff is a government employee being an employee of

Hon'ble Supreme Court of India.

JANUARY 21, 2019                        VALMIKI J. MEHTA, J
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