GURPREET SINGH & ORS vs SUNIL DUTT & ANR
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HONBLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ RFA 220/2017 & CM.APPL.41282/2021
Between: –
1. GURPREET SINGH
S/O LATE SH BAGH SINGH,
R/O J-17, B.K. DUTT COLONY,
JOR BAGH, NEW DELHI – 03.
2. SMT. SWARAN KAUR
WIDOW OF LATE S. BHAG SINGH,
R/O J-17, B.K. DUTT COLONY,
JOR BAGH, NEW DELHI – 03.
(THROUGH ATTORNEY SH. GURPREET SINGH)
3. SMT. JASBIR KAUR,
D/O. LATE S. BHAG SINGH,
R/O HOUSE NO. 445, PHASE-II MOHALI,
S.A.S. NAGAR, PUNJAB 160055.
(THROUGH ATTORNEY SH. GURPREET SINGH)
4. SHRI SUKHVINDER SINGH,
S/O. LATE S. BHAG SINGH,
R/O 757, SABLE RANCHO,
SANTA MARGARITA, CALIFORNIA,
CA- 92688.
(THROUGH ATTORNEY SH. GURPREET SINGH)
5. SMT. SARABJIT KAUR,
D/O. LATE S. BHAG SINGH,
W/O VARINDER SINGH,
R/O 9989, LAUREL CANYON BLVD,
PACOIMA, CA 91331.
(THROUGH ATTORNEY SH. GURPREET SINGH)
6. MS. PARAMJIT KAUR,
D/O. LATE S. BHAG SINGH,
R/O J-17, B.K. DUTT COLONY,
JOR BAGH, NEW DELHI – 03
(THROUGH ATTORNEY SH. GURPREET SINGH) …..APPELLANTS
(Through: Mr. Anunaya Mehta and Mr. Vidhan Malik, Advs.)
AND
1. SMT. NEELAM DUTT
W/O. LATE SH. SUNIL DUTT
R/O. C-19, KARBIA VILLAGE,
B.K. DUTT COLONY,
NEW DELHI-110003.
PRESENTLY AT:
E-101, B.K. DUTT COLONY,
NEW DELHI -110003
2. CHETAN DUTT
S/O. LATE SH. SUNIL DUTT,
R/O. C-19, KARBIA VILLAGE,
B.K. DUTT COLONY,
NEW DELHI.
PRESENTLY AT:
E-101, B.K. DUTT COLONY,
NEW DELHI -110003
3. DIPTI DUTT
D/O. LATE SH. SUNIL DUTT,
R/O. C-19, KARBIA VILLAGE,
B.K. DUTT COLONY,
NEW DELHI-110003.
PRESENTLY AT:
E-101, B.K. DUTT COLONY,
NEW DELHI -110003 …..RESPONDENTS
(Through: Ms. Richa Kapoor, Ms. Udipti Chopra, Mr. Kunal Anand, Mr. Sandesh Kumar, Mr. Rohit Malik, Ms. Atika Singh and Mr. Harsh Gautam, Advs.)
————————————————————————————
% Reserved on: 05.11.2024
Pronounced on: 16.12.2024
———————————————————————————–
J U D G M E N T
The instant regular first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) seeks to assail the judgment and decree dated 29.11.2016 passed by the Court of ADJ-06 (South-East) Saket Courts, New Delhi in CS No. 733/16, whereby, the suit for possession and damages qua the property being J-17, Aliganj, B.K. Dutt Colony, New Delhi (hereinafter the suit property) has been decreed in favour of the respondents/plaintiffs.
2. The respondents/plaintiffs claim to be the absolute owners of the suit property on the basis of the conveyance deed dated 08.03.1995, duly executed by the President of India, whereas, the appellants/defendants claim perfection over the title of the suit property by way of adverse possession in succession of their uncle, namely Sardar Balbir Singh. The original defendant, namely Bhag Singh had expired on 13.02.2009 during the pendency of the Civil Suit and therefore, the appellants/defendants being the legal heirs of the original defendant have filed the instant appeal challenging the impugned judgment and decree.
Factual Background
3. The suit property admeasuring about 127 square yards comprising two small rooms, kitchen, bathroom, lavatory, lobby and tin shed, was originally allotted to one Jai Singh Khosla by the Government of India vide perpetual lease deed dated 12.04.1961. Thereafter, upon the demise of Jai Singh Khosla, the suit property was mutated in the records of authorities in the name of his wife i.e., Rajinder Kaur Khosla. Jai Singh Khosla was survived by his wife and two sons, namely GS Khosla and Bijinder Singh.
4. On 11.04.1977, Rajinder Kaur Khosla also died leaving behind her two sons. As a sequitur of her death, the suit property was substituted/mutated by the Government of India in the name of GS Khosla in the lease deed vide letter dated 17.07.1991.
5. On 24.03.1992, GS Khosla entered into an agreement to sell with plaintiff no.1/respondent no.1 and in pursuance of the same, a Special Power of Attorney was executed by him in favour of respondent no.2/plaintiff no.2. Subsequently, on 28.04.1993, he executed a registered General Power of Attorney in favour of respondent no.2/plaintiff no.2.
6. On account of the aforesaid Agreement to Sell and Power of Attorney, the suit property was transferred in the name of respondent no.1/plaintiff no.1 after conversion of the same from leasehold to freehold property. It is stated that at the time of the transfer of the suit property, GS Khosla had informed respondent no.1/plaintiff no.1 of certain facts pertaining to the tenancy of the original defendant Bhag Singh, who was stated to have been inducted by Bijinder Singh as a tenant in the portion marked as B in the site plan. It was the case of the respondents/plaintiffs before the learned Trial Court that the front room marked as A in the site plan was earlier being occupied by Bijinder Singh and after his death in the year 1982-83, the possession of the said portion was taken over by GS Khosla and the same was under his lock and key. It was also stated that since GS Khosla did not reside in the suit property and Bhag Singh was a friend of Bijinder Singh, the tenancy terms were not revised but it was categorically made clear that the monthly rental payments of water and electricity as per actual consumption and house tax shall be paid by Bhag Singh directly to the New Delhi Municipal Council (hereinafter NDMC). The balance amount was allegedly allowed to be accumulated.
7. It was further pleaded by the respondents/plaintiffs before the learned Trial Court that in March 1993, GS Khosla had arranged a meeting, wherein, the appellants/defendants agreed to pay an enhanced rent at the rate of ?3800 per month, exclusive of house tax, water tax etc., to the respondents/plaintiffs who had become owners in succession of GS Khosla. It was also stated that the back portion of the suit property marked as B in the site plan was in the possession of Bhag Singh and the portion marked as A was in the physical vacant possession of GS Khosla; however, the portion marked as A was subsequently occupied by Bhag Singh and the said act was reported to the police.
8. Prior to filing of the civil suit, the respondents/plaintiffs, on 24.09.1998, filed an eviction petition bearing no.138/97 (hereinafter first eviction petition) under Section 14(1)(a) read with Section 25B of the Delhi Rent Control Act, 1958 before the learned ARC seeking eviction of the appellants/defendants on the ground of bona fide requirement. However, the petition came to be dismissed for being premature on the even date itself.
9. Subsequently, on 16.12.2002, the respondents/plaintiffs filed another eviction petition bearing no. 18/99 (hereinafter second eviction petition) for eviction of the appellants/defendants on the premise of default in payment of rent. The second eviction petition also came to be dismissed vide order dated 16.12.2002, wherein, it was held that the respondents/plaintiffs were unsuccessful to prove that the appellants/defendants were tenants, either under the earlier owner or under them.
10. Being aggrieved by the aforesaid order, the respondents/plaintiffs took further recourse by filing a Civil Suit bearing no. 56/2003 seeking possession, damages, mesne profits and injunction against the appellants/defendants for the suit property. Thereafter, the issues were framed and the matter went on for a considerable period of time. In the year 2016, the case was re-numbered as Civil Suit no.733/16 and subsequently, the impugned judgment and decree in the suit of the respondents/plaintiffs was passed.
Submissions
11. Mr. Anunay Mehta, learned counsel appearing on behalf of the appellants/defendants, at the outset, submitted that the respondents/plaintiffs do not possess any knowledge about the affairs of the suit property prior to the year 1992, apart from what has been informed by GS Khosla and therefore, the case set up by the respondents/plaintiffs is only based upon hearsay which is inadmissible.
12. While solidifying the possession of the appellants/defendants in the suit property, he submitted that it is the case of the respondents/plaintiffs themselves in the plaint that the original defendant i.e., Bhag Singh, was in the exclusive possession of the portion marked as B, at least prior to the year 1982-83 when Bhag Singh had expired. He, however, contended that as a matter of fact, the appellants/defendants had been in possession of the entire portion of the property and the argument of the respondents/plaintiffs that the possession of the appellants/defendants extended only to the portion marked as B is self-contradictory. He drew the attention of the Court to the aforesaid eviction petitions to submit that the respondents/plaintiffs have themselves admitted in the pleadings that the property in possession of Bhag Singh i.e., the possession of which was claimed by the respondents/plaintiffs, comprised the entire suit property.
13. He then submitted that during the cross-examination in the second eviction petition, it was initially claimed that Bhag Singh was in possession of only one room and the remaining portion lay in possession of the respondents/plaintiffs, however, upon being confronted, plaintiff no.1 had admitted that the status as given in the eviction petition is correct and the appellants/defendants were in possession of the entire portion of the property. He, therefore, submitted that the averment made by the respondents/plaintiffs regarding the locks allegedly been put by the appellants/defendants in portion A is devoid of any merit and is only an afterthought as the said fact does not find any mention in the eviction petitions. According to him, the factual narrations provided by the respondents/plaintiffs are completely false and they only aim at creating a cause of action for filing the suit, which otherwise did not exist at all.
14. With regard to the period of possession of the appellants/defendants in the suit property, learned counsel submitted that as per the plaint, the appellants/defendants were in possession of the suit property prior to 1982-83 i.e., while Bijinder Singh was alive. He further submitted that as per the case of the appellants/defendants, they were in possession of the suit property since the year 1967 and the said statement has gone unrebutted in cross-examination.
15. He asserted that the respondents/plaintiffs had failed to produce any person who had the personal knowledge about the status of the suit property. He relied upon the findings of the learned ARC regarding the absence of GS Khosla who would have been the best evidence, to submit that despite being aware of the said objection, the respondents/plaintiffs purposely chose not to present GS Khosla as a witness.
16. Learned counsel then submitted that the possession of the appellants/defendants was undoubtedly hostile to the owner of the property, including the respondents/plaintiffs and the same is the specific stand taken in evidence. According to him, the said position is evident from the fact that the appellants/defendants have not paid any rent at any point of time in relation to the suit property. It was asserted that neither the appellants/defendants were in landlord-tenant relationship nor they had any permissive or authorized possession and considering that the appellants/defendants were paying electricity and water charges to the NDMC, as admitted by the respondents/plaintiffs themselves, it leaves no doubt that the possession of the appellants/defendants was not hostile. He contended that the alleged incident of putting of one more lock by the appellants/defendants over the existing lock in the portion marked as A in the suit property is one of the instances to suggest that there existed hostility on part of the appellants/defendants.
17. He placed reliance on the decision of the Supreme Court in the case of Kshitij Chandra Bose v. Commissioner of Ranchi1 to submit that the law does not require hostility of possession to be brought to the specific knowledge of the owner and the only requirement is that the possession must be open and without any attempt of concealment. He further relied on Parsinni v. Sukhi & Ors.2, to contend that it is sufficient for the person claiming adverse possession to show that their possession is overt and the respondents against whom the time is running ought to exercise due vigilance to be aware of what is happening.
18. He also contended that there does not lie any equity in favour of the respondents/plaintiffs as they had purchased the property despite knowing fully well that the entire suit property was in possession of the appellants/defendants for decades claiming such to be in their own right. He lastly submitted that insofar as the reliance placed by the learned Trial Court on Ex.PW-2/1 and 2/4 is concerned, the same is completely misplaced, inasmuch as, the respondents/plaintiffs had failed to prove that the property tax assessment form was filled by the original defendant as the official of the NDMC who proved the said form had no personal knowledge about filling the form. According to him, it is already admitted by the respondents/plaintiffs that the property tax was actually paid by the appellants/defendants and the learned ARC has concluded that there did not exist any relationship of tenancy. He, therefore, asserted that the appellants/defendants have successfully perfected their title over the suit property by fulfilling all the prerequisites for sustaining a valid defence of adverse possession and accordingly, the appeal deserves to be allowed.
19. On the contrary, Ms. Richa Kapoor, learned counsel appearing for the respondents/plaintiffs vehemently opposed the submissions and contended that the respondents/plaintiffs are the rightful owners of the suit property and therefore, the instant appeal is liable to be dismissed.
20. She submitted that a compromise was arrived at between the parties, whereby, the appellants/defendants had agreed to vacate the suit property upon payment of Rs.75000/- and accordingly, the said payment was made in the form of cash on 15.02.2003 in the presence of a property dealer, namely Kartar Singh Yadav and a lock was put by the respondents/plaintiffs on the suit property. She, however, submitted that when the respondents/plaintiffs had brought their luggage on 17.02.2003, it was shockingly noted that the appellants/defendants had not only removed the lock but also replaced the wooden door to trespass into the suit property and therefore, the respondents/plaintiffs were constrained to file the suit for possession, damages, mesne profits and permanent injunction.
21. She then invited the attention of the Court to the written statement filed by the appellants/defendants, particularly paragraph nos.1 to 3 of the additional pleas therein, to submit that the appellants/defendants are claiming possession against one Raghunath Das, who had handed over the proprietary possession to Sardar Balbir Singh, who happens to be the predecessor-in-interest of the appellants/defendants. She, therefore, submitted that the appellants/defendants are not claiming possession against the true owners of the suit property despite having the knowledge of the same.
22. Learned counsel further contended that the stand taken by the appellants/defendants is only based upon the presumption that Sardar Balbir Singh had perfected his title; however, they have failed to prove the same. While highlighting the cross-examination of the original defendant i.e., Bhag Singh, she asserted that Bhag Singh had categorically stated that the suit property was originally allotted to Jai Singh Khosla and subsequently to Rajinder Kaur Khosla. She, therefore, submitted that since the appellants/defendants were aware of the rightful owners, they at best had a permissive possession over the suit property. She also contended that a perusal of Ex. PW 2/1 would indicate that Bhag Singh had signed the property tax assessment form, wherein, he had stated about paying the house tax in the capacity of a tenant.
23. She then asserted that the learned ARC has also recorded that the appellants/defendants had failed to prove as to how the property came in the possession of the uncle of Bhag Singh, namely Sardar Balbir Singh. She, thus, contended that the appellants/defendants have miserably failed to establish any rights over the suit property in any manner whatsoever.
24. She further contended that the appellants/defendants are blowing hot and cold at the same time, inasmuch as, on one hand, they are asserting that Bhag Singh and Sardar Singh are allegedly owners of the property and on the other hand, they are asserting adverse possession of the suit property for having it used for more than 12 years in hostility with the rightful owner. She, therefore, submitted that the appellants/defendants cannot be allowed to make two mutually exclusive pleas i.e., ownership as well as adverse possession. She relied upon the decision of the Supreme Court in the case of Karnataka Board of Wakf v. Government of India & Ors.3 to substantiate her arguments.
25. In rejoinder submissions, Mr. Mehta contended that the claim of the respondents/plaintiffs that the appellants/defendants had agreed to pay a sum of ?75,000/- is only an eyewash and the said transaction is not even supported by any receipt or otherwise. He then took this Court to Ex. P/5 to submit that Bhag Singh had categorically stated that it was incorrect that his status in NDMC record is only of tenant and he also denied to have put his signatures on the property tax assessment form i.e., Ex. PW-2/1. He further clarified that the appellants/defendants are claiming perfection of their title over the suit property only on account of adverse possession and not on the basis of ownership.
26. I have heard the learned counsel appearing on behalf of the parties and perused the record.
Analysis
27. The short controversy which merits consideration by this Court is whether the appellants/defendants are able to prove their ownership of the suit property on the basis of adverse possession, in terms of the evidence led by them. The consequential questions of possession, mesne profits and injunction shall stand determined as a necessary corollary of this seminal issue.
28. Before dilating on the controversy on merits, it is significant to first sail through the settled jurisprudence on the law of adverse possession in order to understand the essentials and nuances of a valid defence taken on the said ground.
29. The principle which delineates the legal threshold to establish a claim of adverse possession is well-settled and specifies that a party claiming adverse possession must prove that its possession is nec vi, nec clam, nec precario i.e., peaceful, open and continuous. As recently held by the Supreme Court in the case of State of Kerala v. Joseph4, the said three classic requirements must coexist and concrete evidence detailing the nature of the occupation with proper proof thereof would be necessary for proving the claim. It further held that mere vague assertions cannot by themselves be a substitute for the concrete proof required to establish open and hostile possession.
30. The concept of adverse possession is also governed by the Latin maxim vigilantibus non dormientibus jura subveniunt which literally translates as? the law aids the vigilant, not those who sleep over their rights. However, it has been copiously held by the Supreme Court in a series of judgments that a clear, continuous and hostile possession would have to be established by way of a cogent evidence and animus possidendi i.e., the intention to occupy the property or dispossess the rightful owner must be demonstrated by the person claiming adverse possession.
31. In the case of Chatti Konati Rao v. Palle Venkata Subba Rao5, the Supreme Court took a view that mere possession of any land or property does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. It was further held that the person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed.
32. While shedding light on the two-fold requirements so as to sustain the claim of adverse possession, the Supreme Court in the case of Annakili v. A. Vedanayagam6has held as under:-
24. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.
33. In the decision of the Supreme Court in the case titled as M Siddiq (D) through LRs v. Mahant Suresh Das7, the requirements which were needed to be met to successfully set up a plea of adverse possession i.e., the same being peaceful, open and continuous, were held to be duly established firstly, by adequate pleadings and secondly, by leading sufficient evidence. The relevant paragraph of the said decision reads as under:-
748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous – possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence.
34. While extensively dealing with the law on adverse possession, the Supreme Court in the case of P.T. Munichikkanna Reddy v. Revamma8 has held as under:-
5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird [100 So 2d 57 (Fla 1958)] ; Arkansas Commemorative Commission v. City of Little Rock [227 Ark 1085 : 303 SW 2d 569 (1957)] ; Monnot v. Murphy [207 NY 240 : 100 NE 742 (1913)] ; City of Rock Springs v. Sturm [39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929)] .)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
***
8. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
9. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard.
35. In the case of T. Anjanappa v. Somalingappa9, the Supreme Court noted that the High Court, therein, had erred in deciding that a party claiming adverse possession is not required to pass the muster of who is the true owner of the property in question. It was, therefore, held that if the defendants are not sure as to who is the true owner, the question of them being in hostile possession and the question of denying the title of the true owner do not arise. The relevant paragraphs of the said decision read as under:-
12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the others rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owners right excluded him from the enjoyment of his property.
***
21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court’s judgment is clearly unsustainable. Therefore, the appeal which relates to OS No. 168 of 1985 is allowed by setting aside the impugned judgment of the High Court to that extent. Equally, the High Court has proceeded on the basis that the plaintiff in OS No. 286 of 1988 had established his plea of possession. The factual position does not appear to have been analysed by the High Court in the proper perspective. When the High Court was upsetting the findings recorded by the court below i.e. first appellate court it would have been proper for the High Court to analyse the factual position in detail which has not been done. No reason has been indicated to show as to why it was differing from the factual findings recorded by it. The first appellate court had categorically found that the appellants in the present appeals had proved possession three years prior to filing of the suit. This finding has not been upset. Therefore, the High Court was not justified in setting aside the first appellate court’s order. The appeal before this Court relating to OS No. 286 of 1988 also deserves to be allowed. Therefore, both the appeals are allowed but without any order as to costs.
36. In Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (Smt)10, the Supreme Court while reiterating the settled jurisprudence on adverse possession has held that the plea of adverse possession is not a pure question of law but a mixed question of fact and law. It was further noted by the Court that the party pleading adverse possession must state with sufficient clarity as to when its adverse possession commenced as also the nature of its possession.
37. The Supreme Court in Parwatabai v. Sonabai11, stressed upon the condition that one has to also establish the exact date from which adverse possession started. Paragraph no.5 of the said decision reads as under:-
5. Article 65 of the Act postulates that for possession of immovable property or any interest therein based on title, when the possession of the defendant becomes adverse to the plaintiff, the suit has to be filed within 12 years. Therefore, when the plaintiffs asserted their title on the basis of succession to the estate of their father, it is for the appellant to prove as to on which date the appellant’s possession has become adverse to the respondents’ title. In this case, the appellate court and the High Court found that the appellant had not established as to what was the exact date from which the adverse possession started running. Since Parwatabai died in 1966, admittedly, the plaintiff had filed the suit in 1966 within 10 years. Under those circumstances, the appellant had not perfected the title by prescription. The courts below have rightly applied Article 65 and decreed the suit. It is not vitiated by any error of law warranting interference.
38. In Karnataka Board of Wakf (supra), while succinctly encapsulating the essentials required to be fulfilled so as to claim a property on the ground of adverse possession, the Supreme Court in paragraph no.11 has held as under:-
11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is nec vi, nec clam, nec precario, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567] .) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128] .]
39. A conspectus of the aforesaid discussion would, in no uncertain terms, evince that the plea of adverse possession puts an onerous condition on the claimant to demonstrate that the possession of the property in question is peaceful, open and continuous. Mere possession of a property for a long term without proving the same with cogent evidence to be hostile against the true owner, would not itself divest the rightful owner from his claim over the property. The claimants are legally bound to precisely establish the commencement and continuity of possession i.e., the exact date from which the possession became hostile and adverse to the true owner. In addition to the proof of actual possession, the claimant must also demonstrate a clear intention to possess the property in hostility with the title of the true owner and that too, for a period of at least twelve years. The conditions associated with a claim of adverse possession are to be fulfilled with complete certainty. For, the ultimate effect of the claim is to deny title to the true owner by operation of law by curbing his right to approach the Court beyond the prescribed limitation.
40. Turning to the factual scenario in the case at hand, the main thrust of the appellants/defendants case is that they claim rights over the entire portion of the property in question on the basis of adverse possession in succession to their uncle, namely Sardar Balbir Singh, who is stated to have resided in the suit property prior to 1967. In paragraph no. 7 of the written statement filed by the original defendant before the learned Trial Court, it has been averred that Sardar Balbir Singh claimed unchallenged ownership rights openly and to the knowledge of everyone and since 1967, the original defendant was accepted as owner by one and all. Further, in paragraph nos. 1 to 3 of the additional pleas taken in the said written statement, it has been asserted by the original defendant that Sardar Balbir Singh had been handed over the possession of the property by a person, namely Raghnath Das. The said paragraphs are reproduced as under:-
1. The respondent’s uncle S. Balbir Singh, coming from East Punjab but settled in Delhi, was acquainted with one Raghnath Das son of Modi Shah resident of 12/13, W.E.A., Karol Bagh, New Delhi, who had migrated from Pakistan. In 1959-60, GBP tenements were coming up in Aliganj area, and Raghnath Das had applied for allotment of a tenement, when his verified claims were being processed by the Ministry of Rehabilitation but he did not have money. He deposited a sum of Rs. 625/- and had to make payment of Rs. 4.091.80 towards allotment of the suit property no. J-17, Karbala, Aliganj, New Delhi, when he changed his mind and was reluctant to make complete payment. His understanding with S. Balbir Singh was that since Balbir Singh himself may not have been directly eligible for such allotment, he would pay the sum of Rs. 4,091.80 as also re-imburse the initial payment to Raghnath Das, leaving the matter of any documentation for the time being. S. Balbir Singh made the said payment to Raghnath Das in good faith and obtained the possession However, Raghnath Das having handed over possession of the suit property with all his rights to S. Balbir Singh some times in 1960 could not be traced later to complete documentation as required by Balbir Singh. It might be that someone in his name may have fraudulently used his claims even while proprietary possession was handed over by Raghnath Das) to Balbir Singh. Such frauds were quite common in those This, it is submitted, could not disturb the rights in favour of Balbir Singh and prescriptive rights of the plaintiff starting from 1967.
2. When the defendant came to Delhi in 1963 from village in Punjab, he stayed with his uncle in the suit property. In 1967 his uncle migrated to UK and wished to hand over the possession of the property to the defendant by assigning all his rights therein to him In these circumstances, S. Balbir Singh having acquired proprietary rights in the suit property and having assigned the same to the defendant, defendant was accepted as owner of the property by one and all.
3. The defendant has already submitted that right from the proprietary possession of the property being given to S. Balbir Singh as per his arrangement with Raghnath Das till his migration to UK he stayed in that property and considered himself to be the owner of the property. In 1967 on his assignment of his rights in favour of the defendant, the defendant has continued his uninterrupted possession of the propeyty and no one has challenged his rights and he has accepted no one as owner.
41. However, in his cross-examination, the original defendant had categorically stated that the suit property was originally allotted to Jai Singh Khosla and after his demise, the same was mutated in favour of his wife Rajinder Kaur Khosla. It is, thus, seen that the original defendant was firstly claiming his rights through Sardar Balbir Singh and Raghunath Das and later on, he acknowledged the ownership of Jai Singh Khosla. Therefore, it appears that the appellants/defendants have not been able to indubitably prove their claim against one owner and they also seem to have taken inconsistent pleas as far as the original ownership of the suit property is concerned. As already discussed above, a party claiming adverse possession should be clear and precise as to who is the real owner of the property, which appears to be missing in the case at hand. It is trite law that a claim of adverse possession requires hostility qua the known and actual owner, and not against an unknown owner.
42. Further, much reliance has been placed by the appellants/defendants on the property tax assessment receipt (Ex. PW-2/1), which bears the signature of the original defendant to contend that since the same mentions the owner as Rajinder Kaur and Bhag Singh to be only a tenant, it rules out any possibility of perfection of title by way of adverse possession. However, the original defendant in his cross-examination has denied putting his signatures on any such receipt and it is the stand of the appellants/defendants that the house tax and other ancillary charges were paid by them in the capacity of owner. Be that as it may, assuming that such charges were paid by the original defendant as owner of the property, any document alluding to the same ought to have been brought on record and proved by the appellants/defendants. Apart from simply denying the authenticity of the signatures over Ex. PW-2/1, the appellants/defendants have not led any cogent evidence which could prove otherwise.
43. Notably, the factum of payment of charges, as depicted by the receipt, has not been denied and only the signatures on the receipt are denied. In effect, it could be seen that the information revealed by the receipt has been accepted selectively by the appellants/defendants, only to the extent that it supported their case. The factum of payment as per the receipt has, in fact, been used to claim ownership, whereas, the signatures are denied because the additional information in the receipt indicated otherwise. The receipt pertains to the deposition of certain charges to a government department and a simpliciter denial of the same cannot be accepted without any evidence to substantiate the same.
44. A perusal of the record would further show that the appellants/defendants have also not been able to prove as to on which date the possession became hostile to the true owner or the exact date when the appellants/defendants had started enjoying an open and notorious possession over the suit property. The appellants/defendants only appear to have made a bald assertion that Sardar Balbir Singh had possessed the suit property prior to 1967 and the appellants/defendants came into the possession of the suit property through succession. Furthermore, the suit property was admittedly mutated in the name of J.S. Khosla vide perpetual lease deed dated 12.04.1961 and later, in the name of his wife Smt. Rajinder Kaur on 11.04.1977. It was further substituted in the name of GS Khosla in the lease deed on 17.07.1991. The special and general power of attorney was later executed by GS Khosla in favour of plaintiff no. 2/respondent no. 2. In such a scenario, it is of utmost importance to specify the point when possession became adverse as well as the owner qua whom it became adverse. The property has changed hands during the claimed period of adverse possession followed by mutation and there is no material to indicate that the possession continued to be adverse despite the change of ownership. As already observed, these are foundational facts to further a claim of adverse possession. Undeniably, the appellants/defendants have failed to substantially prove any document or otherwise which could reflect that they had perfected their title by way of adverse possession.
45. In light of the aforesaid, the Court does not find any infirmity in the judgment and decree passed by the learned Trial Court. This Court finds no reason to interfere in the findings rendered by the learned Trial Court. Consequently, the appeal stands dismissed, along with the pending application.
46. No order as to costs.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
DECEMBER 16, 2024/MJ
1(1981) 2 SCC 103
2 (1993) 4 SCC 375
3 (2004) 10 SCC 779
4 2023 SCC OnLine SC 961
5 (2010) 14 SCC 316
6 (2007) 14 SCC 308
7 (2020) 1 SCC 1
8 (2007) 6 SCC 59
9 (2006) 7 SCC 570
10 (1996) 8 SCC 128
11 (1997) 1 SCC 531
—————
————————————————————
—————
————————————————————
– 24 –