Delhi High Court
Gurpreet Singh & Ors vs Sunil Dutt & Anr on 16 December, 2024
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE 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)
Signature Not Verified Signature Not Verified
Digitally Signed Digitally Signed
By:MAANAS JAJORIA
Signing Date:16.12.2024 By:PURUSHAINDRA
19:29:34 KUMAR KAURAV
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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.)
Signature Not Verified Signature Not Verified
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By:MAANAS JAJORIA
Signing Date:16.12.2024 By:PURUSHAINDRA
19:29:34 KUMAR KAURAV
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% Reserved on: 05.11.2024
Pronounced on: 16.12.2024
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JUDGMENT
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
Signature Not Verified of India vide perpetual lease deed datedSignature
12.04.1961.
Not Verified
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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
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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
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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
Signature Not Verified
the property and the argument of the respondents/plaintiffs that the
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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,
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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.
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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
1
(1981) 2 SCC 103
2
(1993) 4 SCC 375
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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.
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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
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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.
3 (2004) 10 SCC 779 Signature Not Verified Signature Not Verified Digitally Signed Digitally Signed By:MAANAS JAJORIA Signing Date:16.12.2024 By:PURUSHAINDRA 19:29:34 KUMAR KAURAV - 13 -
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
4
2023 SCC OnLine SC 961
5
(2010) 14 SCC 316
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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 possession6
(2007) 14 SCC 308
7
(2020) 1 SCC 1
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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.
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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
other‟s rights but denies them. The principle of law is firmly
established that a person who bases his title on adverse9
(2006) 7 SCC 570
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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 owner‟s 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
10
(1996) 8 SCC 128
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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 another11
(1997) 1 SCC 531
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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
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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.
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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
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ownership of
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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,
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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
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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
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