The Single Bench of the Delhi High Court in the case of Anu Gupta vs Vijay Gupta & Ors. consisting of Justice Amit Bansal observed that the defence of adverse possession will not be available to a party if the said party is claiming to be the owner of the suit property.
Facts
This application was filed on behalf of the plaintiff under O12R6 CPC seeking decree of possession in respect of ground, first and second floor of the suit property based on the admissions made by the defendants in their written statements.
Contentions Made
Petitioner: The plaintiff was the sole and absolute owner of the suit property as it was duly mutated in her favour.
Respondent: The suit property as well as the adjoining property owned by defendant no.1, were both one unit of land, so the demarcation would be required between the suit property and the said property, before a decree of the possession can be passed in favour of the plaintiff. The defendant no.1 has been in possession of the suit property since 2007 as an owner, who became the owner of the suit property based on adverse possession. The present suit is barred by limitation and u/s 53A of the Transfer of Property Act, 1882 (TPA), as the defendant no.1 is in possession. No admission was made by the defendant no.1 that would entitle the plaintiff to a decree under O12R6 CPC.
Observations of the Court
The Bench noted that though defendant no.1 claims ownership of the suit property in terms of the said document, the transfer of title in his favour shall take place only upon a registered transfer document being executed in his favour. Till that time, he cannot claim to be the owner of the suit property. Relying on Arun Kumar Tandon vs. Akash Telecom Pvt. Ltd & Anr., it was reiterated that to give benefits u/s 53A of TPA, the document relied upon must be a registered document.
It was also noted regarding the plea of adverse possession that such defence cannot be claimed if the same is contradictory to the main defence taken by the defendant. Relying on Mohan Lal v. Mirza Abdul Gaffar and Anr., it reiterated that the plea of adverse possession is inconsistent with the plea u/s 53A of the TPA.
Relying on Rama Kanta Jain v. M.S. Jain & Ors. it further noted that the defence of adverse possession will not be available to a party if the said party is claiming to be the owner of the suit property. So, the plea of adverse possession in the present case would not be available to the defendant no.1.
Referring to Article 65 of the Schedule to the Limitation Act 1963, it was also noted that the limitation period would commence only when the possession of the defendant becomes adverse to the plaintiff. Since the defendant no.1’s claim was founded on being an owner in possession of the suit property, this cannot be taken to be a possession adverse to that of the plaintiff, in terms of Article 65.
Regarding O12R6 CPC, it was held that the defence raised by the defendant no.1 was in the nature of moonshine and it would be a waste of judicial time to put the same for trial.
Judgment
The Bench concluded that the application under O12R6 CPC was allowed and the suit was decreed in favour of the plaintiff and against the defendants in respect of the possession of the suit property of ground, first and second floor of the suit property, in terms of the site plan filed by the defendants. The defendants were directed to vacate the suit property within three months and handover possession of the same to the plaintiff.
Case: Anu Gupta vs Vijay Gupta & Ors.
Citation: CS(OS) 250/2020 & I.A. 11222/2021 (O-XXXIX R-2A of CPC)
Bench: Justice Amit Bansal
Decided on: 8th August 2022
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