Sarvinder Singh v. Vipul Tandon, 2016 SCC OnLine Del 2745

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2016 SCC OnLine Del 2745
In the High Court of Delhi at New Delhi

(BEFORE VIPIN SANGHI, J.)
Sarvinder Singh & Anr. .…. Plaintiffs

Mr. Amarjeet Sahni, Advocate
v.
Vipul Tandon .…. Defendant
Mr. Ramkishan Saini, Advocate
CS(OS) 2453/2015
Decided on May 3, 2016
VIPIN SANGHI, J. (Open Court)
I.A. No. 1190/2016
1. This application has been preferred by the plaintiff under Order 12 Rule 6 CPC for
passing of decree on the basis of admission. The plaintiffs have filed the present suit
to seek the relief of possession and mesne profits/damages from the defendant in
respect of the suit property, i.e. flat having three floors with lawn and terrace and four
servant quarters in property no. 27, Rajpur, Delhi as shown in red colour in the site
plan filed with the plaint. The plaintiffs have also claimed damages @ Rs. 2 lacs per
month along with interest @ 15% p.a. against the defendant towards use and
occupation charges in respect of the suit property from the date of filing of the suit till
possession.
2. The case of the plaintiffs in the plaint is that the suit property was owned by
their mother late Smt. Nirmal Satyendra Singh and she had spent most of her time in
the said property. The plaintiff no. 1 is settled in U.K. and plaintiff no. 2 is settled in
Canada for the last more than 44 years. The father of the plaintiffs had also settled in
Canada in the year 1968. The plaintiffs state that their mother, namely, late Smt.
Nirmal Satyendra Singh refused to shift abroad and she stayed back in India in the
suit property. In these circumstances, the defendant was appointed as the caretaker of
the mother of the plaintiffs. The plaintiffs claim that upon the death of their mother on
24.11.1994, they inherited the suit property being the only Class-I heirs of their late
mother.
3. The plaintiffs state that on 13.05.1996, the defendant filed a probate petition
being PC No. 182/1996 in the court of the District Judge, Delhi. This probate was filed
in respect of an alleged will dated 15.08.1992 attributed to late Smt. Nirmal
Satyendra Singh, whereunder, purportedly the suit property had been bequeathed to
the defendant, to the exclusion of the plaintiffs who are her sons. The plaintiffs state
that the defendant played a fraud while filing the said probate petition, since it was
not disclosed therein that the plaintiffs are residing abroad since 1970. The defendant
obtained service report qua the plaintiffs by manipulation, and forged the signatures of
the plaintiffs on the summons. The plaintiffs state they were not even in India on
31.05.1996, when the service of summons was allegedly affected on them. On the
basis of service report, since no objections were filed, on 13.08.1997 the learned
District Judge granted probate to the defendant in respect of the alleged will dated
15.08.1992.
4. The plaintiffs state that one flat in property no. 27, Rajpur Road, which was
earlier in tenancy of a tenant, namely, R.S. Chitnis was illegally sold by the defendant
to one Smt. Renu Agarwal by forging the signatures of their mother and getting the
documents executed for sale of the said flat. Plaintiff no. 1 visited India and learnt of
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the said development. Since the defendant was intending to sell the other portions of
the suit property, Suit No. 39/2002 was filed before the court of the Civil Judge, Delhi
along with an application under Order 39 Rule 1&2 CPC to seek a permanent injunction
against the defendant from dealing with the property. This injunction was granted on
04.05.2002.
5. The plaintiffs state that in response to the aforesaid suit for injunction filed by
them, the defendant filed his written statement claiming ownership in the suit
property. The said written statement was filed on 22.02.2002. The plaintiffs state that
they learnt from the defence taken by the defendant in the said suit, that the
defendant had obtained probate, as aforesaid. Consequently, the plaintiff no. 1 filed an
application under Section 263 of the Indian Succession Act praying for revocation of
probate granted in favour of the defendant. That application was contested by the
defendant and was dismissed by the learned ADJ vide order dated 24.04.2007.
Aggrieved by the said order, the plaintiff no. 1 preferred FAO No. 242/2007 before this
court.
6. Vide order dated 14.01.2011, this court restored the probate petition to its
original number, and it was directed that the same be decided afresh after giving
opportunity to the plaintiff to file their objections. The order granting probate in favour
of the defendants herein was set aside.
7. The plaintiffs have extracted the relevant portion of the said order passed by this
court, which reads as follows:
“23. In these circumstances, the order passed by the Addl. District Judge cannot
be sustained. Consequently, the order of the Addl. District Judge is set aside and
the probate granted in favour of the respondent is also set aside with a direction to
ld. Addl. Distict Judge to re-decide the probate petition after considering the
objections of the appellant, if any, as the will apparently seems to be shrouded by
suspicious circumstances with regard to the service of the appellant. The claim of
the respondent to be the adopted son in the absence of any document to show that
adoption was there or not, particularly, when the deceased testatrix has two sons
alive is also a suspicious circumstance which needs to be cleared as to how, the
deceased testatrix would have excluded of her legal heirs and would have
considered bequeathing the property to the so-called adopted son without assigning
any reasons”.
8. Accordingly, the probate petition was restored for re-adjudication. Eventually,
vide order dated 20.03.2014, the probate petition was dismissed, and the appeal
preferred by the defendant being FAO No. 179/2014 was also dismissed by this court
on 11.03.2015. Consequently, the right claimed by the defendant premised on the
alleged will could not be proved, and by force of the law of succession, the plaintiffs -
being the Class-I heirs, succeeded to the suit property to the exclusion of the
defendant.
9. In the present suit, upon issuance of summons, the defendant has filed the
written statement. The plea now set up by the defendant is that the present suit is
barred by limitation. The defendant states that he is in possession of the suit property
“as owner since the death of the mother of the plaintiff in 1994”. In para 6 of the
written statement, under the heading “Preliminary Objections”, the defendant states
as follows:
“6. That the defendant is in possession of the property as owner and has been
claiming so since the death of the mother of the plaintiffs, which fact has been
admitted by Sh. Sarvinder Singh while appearing as OW-1 in the probate case titled
as Sh. Vipul Tandon v. State. This fact is also in the notice of the plaintiffs since
February 2002, when the defendant filed his written statement in the court of Ms.
Nirja Bhatia, the then Civil Judge, Delhi in suit for injunction titled as, Sh. Sarvinder
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Singh v. Vipul Tandon. The defendant in the said written statement had specifically
stated that he is in possession of the suit property as owner. The possession of
the defendant in the suit property is open, hostile with enmity for the last
more than 12 years which is in the specific knowledge of the plaintiffs. The
defendant has thus become owner of the suit property by adverse
possession”. (Emphasis supplied)
10. The submission of learned counsel for the plaintiff is that a perusal of the
written statement of the defendant would show that there is no denial of the aforesaid
facts and developments as narrated upto para 8 hereinabove. There is no denial of the
fact that late Smt. Nirmal Satyendra Singh was the original owner of the suit property;
that she died on 24.11.1994; that the defendant filed the probate petition on
13.05.1996, which was granted on 13.08.1997; that the plaintiffs filed the suit to seek
injunction against the defendant from dealing with the suit property in January 2002;
that the application for interim injunction was allowed in the said suit on 04.05.2002;
that the written statement was filed by the defendant in the said suit on 22.02.2002,
wherein the defendant claimed to be the owner of the suit property on the basis of the
will dated 15.08.1992 which had been probated vide order dated 13.08.1997; that the
revocation petition was filed by the plaintiff on 27.01.2003 under Section 263 of the
Indian Succession Act; that the revocation petition was dismissed on 24.04.2007; that
the High Court allowed the appeal of the plaintiffs on 14.01.2011, setting aside the
order dated 13.08.1997 granting probate as well as the order dated 24.04.2007
dismissing revocation petition of the plaintiffs; that the probate petition was
eventually dismissed by the learned ADJ on 20.03.2014, and; that the High Court
dismissed the first appeal of the defendant on 11.03.2015. Learned counsel submits
that the order dismissing the Probate Case has, thus, attained finality.
11. Learned counsel for the plaintiff, therefore, submits that the only defence set up
in the written statement-to the claim for possession of the plaintiff, is that the
defendant has been in adverse possession of the suit property for a period of over 12
years, i.e. since the death of the mother of the plaintiff in 1994. Learned counsel
submits that such a plea is not tenable in law, and the defendant cannot be heard to
urge the said plea in law. In support of this submission, he relies on Rama Kant Jain v.
M.S. Jain AIR 1999 Del 281. He submits that the aforesaid admitted developments
clearly show that the defendant cannot, in any event, claim to be in settled and hostile
possession of the suit property for a period of 12 years prior to filing of the present
suit.
12. Learned counsel submits that the defendant had throughout claimed title to the
suit property by recognising the right, title and interest of late Smt. Nirmal Satyendra
Singh. He claimed title on the basis of the alleged will dated 15.08.1992. Therefore, he
did not claim a title adverse to the owner i.e. late Smt. Nirmal Satyendra Singh, or
thereafter, a title hostile to her heirs i.e. the plaintiffs.
13. Learned counsel submits that the defendant even pursued the right claimed on
the basis of the alleged Will dated 15.08.1992 by filing a probate petition, and
obtained probate founded upon the said will. Even when the plaintiffs filed the
revocation petition, the defendant contested the revocation petition, meaning thereby,
that the defendant asserted his claim to the suit property on the basis of the will.
Learned counsel submits that this stand of the defendant was rejected by the learned
ADJ on 20.03.2014, and his appeal was dismissed on 11.03.2015. Thus, till
11.03.2015, the defendant continued to claim his title to the property on the basis of
the will, and not by way of adverse possession.
14. Learned counsel submits that in view of the earlier stand taken by the
defendant in the probate proceedings, wherein he also claimed to be the adopted son
of late Smt. Nirmal Satyendra Singh-which stand was rejected by the learned ADJ, it
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is not open to the defendant to now turn around and claim to have been in adverse
possession. It is further submitted that, in any event, the plaintiff did not accept the
claim of title set up by the defendant and initiated the first legal proceedings against
the defendant, challenging his right, tile, interest and possession in the suit property
by filing their suit for injunction in January 2002, i.e. within 8 years of the demise of
Smt. Nirmal Satyendra Singh. Since then the parties have been in litigation regarding
the title to the suit property.
15. Learned counsel for the plaintiff has also placed reliance on the judgment of the
Supreme Court in State of U.P. v. Nawab Hussain, (1977) 2 SCC 806 : AIR 1977 SC
1680 to submit that the plea of adverse possession had not been set up by the
defendant in the earlier litigation and, therefore, the doctrine of constructive res
judicata bars the defendant from raising such a plea in the present suit.
16. The application is opposed by the defendant. Learned counsel for the
defendant, firstly, submits that there is no admission made in the written statement
that the defendant has no right, title or interest in the suit property. Learned counsel
submits that the defendant had set up his claim of title to the suit property by filing
his written statement in the earlier suit for injunction. The said written statement was
filed on 22.02.2002. The plaintiff ought to have instituted the suit for possession
within 12 years of learning of the defendants claim to title to the suit property. That
not having been done, the present suit - which has been filed only on 10.08.2015, is
barred by limitation.
17. Having heard learned counsels for the parties, in my view, the plaintiff is
entitled to a partial decree for possession since the only substantive defence set up by
the defendant in respect of the relief of possession - that the defendant is in adverse
possession of the suit property since 1992, is not a tenable plea and the defendant is
barred from raising such a plea.
18. At the outset, I consider it appropriate to take note of the law of adverse
possession. Since the defendant now claims rights in the suit property by adverse
possession, it is necessary to examine as to what constitutes “adverse possession”,
and, whether such a plea can be raised by him in the admitted facts of the present
case, or not.
19. The defendant does not deny the fact that during the lifetime of late Smt.
Nirmal Satyendra Singh, she was the owner of the suit property and he was her
Caretaker in the property. Thus, the nature of the occupation of the defendants at the
time of demise of late Smt. Nirmal Satyendra Singh was that of a mere licensee, since
he was staying in the property under the permission of, and desire of the owner late
Smt. Nirmal Satyendra Singh.
20. In Kunnabai, w/o Ganeshlal v. Ashu, s/o Waman, 1998 (2) MHLJ 161, the
essential requirements for a claim of adverse possession were laid down in the
following words.
“the person claiming adverse possession will also have to point out as to
since when, i.e at what point of time, he started claiming possession
adverse to the real owner and further will have to satisfy that even though
his possession was of such nature that it cautioned the real or true owner
of the property to take steps for obtaining possession, he remained in
possession uninterruptedly, peacefully, without any obstruction from the
true owner of the property. Therefore the concise statement of material facts
constituting plea of adverse possession are necessary. A bare statement without
there being any material particulars pleaded in the written statement if allowed to
be proved, will lead the plaintiffs or true owner of the property into confusion and
taken him by surprise at the trial.” (Emphasis supplied)
21. Upon the demise of late Smt. Nirmal Satyendra Singh on 24.11.1994, the
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defendant could not be said to have come into adverse possession of the suit property,
as claimed by him. His status - as a mere licensee in the suit property, continued even
after the demise of late Smt. Nirmal Satyendra Singh on 24.11.1994. It is not the
defendant's case that he openly cautioned the true and real owners of the suit
property, namely the plaintiffs, that he was in hostile possession of the suit property
while denying and denouncing the title of the plaintiffs to the suit property. It was
only when the defendant filed his written statement on 22.02.2002 in the injunction
suit that he, for the first time, claimed ownership in the suit property. Pertinently,
even then the claim of the defendant was premised on the order dated 13.08.1997
passed in the probate case filed by him in respect of the Will dated 15.08.1992. The
defendant has himself filed - along with his list of documents, the certified copy of his
written statement filed in the injunction suit (which is dated 22.02.2002). In the said
written statement, he, inter alia, states in paragraph 8 of the preliminary objections:
“8. That the suit is barred by Section 11 of the Code of Civil Procedure. The
Hon'ble District Judged Delhi has already held, the defendant to be owner of
the property in question vide order date 13.8.1997. Late Smt. Nirmal
Satyender Singh who was the adoptive mother of the defendant duly
executed a Will dated 15.08.1992 bequeathing the property in question in
favour of the defendant beside her immovable properties situated at Ikauna
Town, District Baharich, U.P. The defendant even otherwise, became
absolute owner of the property in question and the properties in District
Baharaich, U.P, by virtue of the said Will dated 15.08.1992. It is not necessary
for a Hindu to obtain Probate of the Will left by a Hindu. However, the defendant
has obtained probate of the said Will. The property in question is Mutuated in
Revenue Records in the name of the defendant. The defendant is the absolute
owner of the property in question. All these facts are within the specific knowledge
of the plaintiff and his brother.”
(Emphasis supplied)
22. He also set up a plea in the said written statement that he was the adopted son
of late Smt. Nirmal Satyendra Singh. In paragraph 1 of the “Reply on Merits” in his
written statement, the defendant, inter alia, stated that:
“1. … … … The plaintiff or his brother have no right, title or interest in the
property in question of which the defendant is the absolute owner of the property in
question. It is submitted that Smt. Nirmal Satyender Singh had adopted the
defendant as her son and left a Will duly executed in presence of the
witnesses in respect of her immoveable properties i.e. Property in question
and the properties situated at Ikauna Town, District Baharaich, U.P.
bequeathing the same in favour of the defendant and by virtue of the said
Will dated 15.8.1992, the defendant became absolute owner after her death.
The defendant has already obtained the Probate of the said Will from the
Court of Hon'ble District Judge, Delhi, though, it was not required. The
property in question is mutated in Revenue Records in the name of the defendant
as absolute owner.” (Emphasis supplied)
23. Similarly, he stated in paragraph 2 of the written statement, inter alia, as
follows:
“… … … It is submitted that by virtue of the Will dated 15.8.1992, the defendant
became the absolute owner of the property in question on the death of his adoptive
mother Smt. Nirmal Satyender Singh.”
24. The plea of the defendant in his written statement dated 22.02.2002 was not
that of adverse possession. In fact, the said plea was premised on a legal right
allegedly derived on the basis of the Will dated 15.08.1992 attributed to late Smt.
Nirmal Satyendra Singh and on the plea that the defendant was the adopted son of
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late Smt. Nirmal Satyendra Singh.

25. As noticed hereinabove, when the said plea was raised by the defendant and
came to the notice of the plaintiffs, they moved an application under Section 263 of
the Indian Succession Act. A perusal of the judgment dated 20.03.2014 passed by the
learned Additional District Judge in the probate case No. 77/13/96 (whereby the
probate petition was dismissed) shows that on the application filed by the plaintiffs
under Section 263 of the Indian Succession Act, issues were framed on 25.10.2005.
This, obviously, means that the application under Section 263 of the Indian
Succession Act was filed before the said date, i.e. well within about 3 years and 8
months of the defendant disclosing his title premised on the probate petition by him in
respect of the Will dated 15.08.1992, and on his plea that he was an adopted son of
late Smt. Nirmal Satyendra Singh. Thus, it is clear that even though the defendant
remained in physical possession after filing his written statement dated 22.02.2002,
he was not in peaceful, uninterrupted or settled possession of the suit property. Merely
because the plaintiffs did not seek to take the law into their own hands, and did not
seek to physically disturb his possession, it does not mean that the possession of the
defendant was “peaceful” or “settled”. The defendant's title, on the basis of which he
justified his possession, stood challenged by the true owners. The enjoyment of the
proprietary rights in the suit property by the defendant was interrupted by the
injunctive relief sought by, and granted to the plaintiffs on 04.05.2002. The true
owners of the property, namely the plaintiffs, did not let the defendant remain in
peace qua his claim of title, and they initiated proceedings to challenge the probate
obtained by the defendant, on the basis of which he claimed title to the property.
26. In Surajmal Marwari v. Rampearaylal Khandelwal, AIR 1966 Pat 8, the law of
adverse possession was exhaustively considered by the Court. The following extracts
from the detailed decision in Surajmal Marwari (supra) are pertinent, and squarely
apply in the facts of the present case as well:
“25. While deciding a plea of adverse possession and more so by a person
who was (admittedly) once inducted into the premises as a tenant, i.e.,
permissible possession, the principle is that there is a presumption that the
existing state of affairs continues. I should not be understood as saying that
there can never be adverse possession at the instance of one, who was once upon a
time a tenant against the owner but it will be a very uphill task and would require a
clear proof. The rationale for this legal principle is that an owner is entitled to
presume that the relationship continues. Otherwise, the owner may be
thinking that it is in possession of a tenant while the period for prescription
might be running….. …. …..
26. In the present case too, the bar of Slum Area (Clearance &
Improvement) Act (which is applicable only to a tenant and not to a ranked
trespasser) was raised. This continued till at least 1966. Thus at least till that
date, the permissive nature of the possession was acknowledged. The execution
which was filed in 1959 was adjourned sine die. In other words, in some ways,
technically it is still pending. It was the notice dated 6.11.70 which first alleged
trespass. It was perhaps in response to this notice that a suit was filed on
20.3.1973 claiming ownership but this was withdrawn in the same year. The
withdrawal in the facts of this case can also be presumed/inferred to operate as
giving up of the claim of the hostile possession. The suit subject matter of appeal
filed in 1982 was well within 12 years from 6.11.1970. Whatever might have been
said in the said notice, the appropriate question is as to when the
respondents/defendant (tenant or his heirs) first said:“We are no longer in
possession as tenant. We do not want protection as tenant. We are in
possession as owners and you are free to file a title suit for possession
against us if you so wish.” No such intention was manifest till 1973. On the
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contrary the events display a desire to use the protection of law available to tenants
to remain in possession. Even otherwise, examining all these provisions, the
conclusion is irresistible that for a property which was once tenanted, unless
restoration is shown to the landlord (under Section 108-G of the Transfer of
Property Act which is the statutory duty of the tenant) for a tenant to assert
adverse possession and title is not to be readily accepted in absence of clear
proof.” (Emphasis supplied)
27. The fact situation in the present case, though not identical, is similar to that
dealt with by the Court in Surajmal Marwari (supra). In that case, the bar under the
Slum Area (Clearance & Improvement) Act was raised by the occupant, i.e. the
erstwhile tenant, who claimed adverse possession. In the present case, the probate
obtained by the defendant in respect of the Will dated 15.08.1992, on 13.08.1997,
from the Court of the District Judge was raised as a defence by the defendant in the
suit for injunction (in his written statement dated 22.02.2002), and it became a
stumbling block for the plaintiffs to sue the defendant for possession of the suit
property. It was essential for the plaintiffs to first clear the said hurdle, before they
could sue the defendant for possession. In this context, in Surajmal Marwari (supra),
the Court observed:
“26. In the present case too, the bar of Slum Area (Clearance & Improvement)
Act (which is applicable only to a tenant and not to a ranked trespasser) was raised.
This continued till at least 1966. Thus at least till that date, the permissive nature
of the possession was acknowledged.”
28. Pertinently, in the present case, the defendant himself contested the plaintiff's
application under Section 263 of the Indian Succession Act, meaning thereby, that the
defendant continued to take the stand that he had derived title in the suit property on
the basis of the Will dated 15.08.1992, and on account of his being the adopted son of
late Smt. Nirmal Satyendra Singh. The defendant continued to pursue the said stand
not only till the passing of the order dated 20.03.2014 in probate case No. 77/13/96,
but even thereafter since the defendant proceeded to file a first appeal to assail the
said order dated 20.03.2014 in FAO No. 179/2014. The said FAO came to be dismissed
only on 11.03.2015. Thus, till 11.03.2015, the stand of the defendant was, that he
derives title to the suit property - not by way of adverse possession, but on the
strength of the probate of the Will dated 15.08.1992, and on the strength of the
adopted son of late Smt. Nirmal Satyendra Singh.
29. In Surajmal Marwari (supra), the Court also took note of the judgment of the
Supreme Court in T. Anjappa v. Somalingappa, (2006) 7 SCC 570, wherein the
Supreme Court observed:
“The concept of adverse possession contemplates a hostile possession i.e. a
possession which is expressly or impliedly denies the title of the true owner.
Possession to be adverse must be possession by a person who does not
acknowledge the other's right but denies them. The principle of law is firmly
established that a person who basis 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 act 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”. (Emphasis supplied)
30. Reliance was also placed on Konda Lakshmana Bapuji v. Government of Andhra
Pradesh, (2002) 3 SCC 258 : 2002 AIR (SC) 1012, wherein it was held:
“The question of a person perfecting title by adverse possessions is a mixed
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question of law and fact. The principle of law in regard to adverse possession is
firmly established. It is well settled proposition that mere possessions of the
land, however, long it may be, would not ripe into possessory title unless
the possessor has ‘animus possidendi” to hold that land adverse to the title
of the true owner. It is true that assertion of title to the land in dispute by the
possessor would in an appropriate case, be sufficient indication of the animus
possidendi to hold adverse to title of the true owner. But such an assertion of title
must be clear and unequivocal thought it need not be addressed to the real owner.
For reckoning the statutory period to perfect title by prescription both the
possession as well as animus possidendi must be shown to exist. Where, however,
at the commencement of the possession there is no animus possidendi, the
period for the purpose of reckoning adverse possession will commence from
the date when both the actual possession and assertion of title by the
possessor are shown to exist”. (Emphasis supplied)
31. In R.V Bhupal Prasad v. State of Andhra Pradesh, (1995) 5 SCC 698, the Court
considered the status of a person who was inducted as a tenant, and continued in
possession of the property even after the termination of lease with or without the
consent of the landlord. It was held that possession of such person may not be lawful
but would be juridical possession. Such person also cannot be ousted from the suit
premises except in accordance with law. In my view, the same would be the case of a
licensee, who was permitted to use and occupy the premises by the licensor, and who
has since passed away.
32. Reference may also be made to Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai
Harijan, (2009) 16 SCC 517. In this decision, the Court analysed the concept of
adverse possession and also referred to the decisions of the Courts world over, to held
that the Courts are taking an unkind approach towards statutes of limitation overriding
property rights. The relevant extract from the said decision reads as follows:
“14. In Secy. of State for India In Council v. Debendra Lal Khan, AIR 1934 PC
23, it was observed that the ordinary classical requirement of adverse possession is
that it should be nec vi, nec clam, nec precario and the possession required must
be adequate in continuity, in publicity and in extent to show that it is possession
adverse to the competitor.
15. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 Court 314,
while following the ratio of Debendra Lal Khan's case (supra), observed as under:
“4… … …But it is well-settled that in order to establish adverse possession of one
co-heir as against another it is not enough to show that one out of them is in sole
possession and enjoyment of the profits, of the properties. Ouster of the non-
possessing co-heir by the co-heir in possession who claims his possession to be
adverse, should be made out. The possession of one co-heir is considered, in law, as
possession of all the co-heirs. When one co-heir is found to be in possession of the
properties it is presumed to be one the basis of joint title. The co-heir in possession
cannot render his possession adverse to the other co-heir, not in possession, merely
by any secret hostile animus on his own part in derogation of the other co-heirs'
title. It is a settled rule of law that as between co-heirs there must be evidence of
open assertion of hostile title, coupled with exclusive possession and enjoyment by
one of them to be knowledge of the other so as to constitute ouster.”
The Court further observed thus:
“4 … … …The burden of making out ouster is on the person claiming to displace
the lawful title of a co-heir by his adverse possession.”
16. In S.M. Karim v. Bibi Sakina, AIR 1964 Court 1254, Hidayatullah, J. speaking
for the Court observed as under:
“5… … … Adverse possession must be adequate in continuity, in publicity and
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extent and a plea is required at the least to show when possession becomes
adverse so that the starting point of limitation against the party affected can be
found. There is no evidence here when possession became adverse, if it at all did
and a mere suggestion in the relief clause that there was an uninterrupted
possession for “several 12 years” or that the plaintiff had acquired “an absolute title
was not enough to raise such a plea. Long possession is not necessarily adverse
possession and the prayer clause is not a substitute for a plea.”
17. The facts of R. Chandevarappa v. State of Karnataka, (1995) 6 SCC 309, are
similar to the case at hand. In this case, this Court observed as under:
“11. The question then is whether the appellant has perfected his title by
adverse possession. It is seen that a contention was raised before the Assistant
Commissioner that the appellant having remained in possession from 1968, he
perfected his title by adverse possession. But the crucial facts to constitute adverse
possession have not been pleaded. Admittedly the appellant came into
possession by a derivative title from the original grantee. It is seen that the
original grantee has no right to alienate the land. Therefore, having come
into possession under colour of title from original grantee, if the appellant
intends to plead adverse possession as against the State, he must disclaim
his title and plead his hostile claim to the knowledge of the State and that
the State had not taken any action thereon within the prescribed period.
Thereby, the appellant's possession would become adverse. No such stand
was taken nor evidence has been adduced in this behalf. The counsel in
fairness, despite his research, is unable to bring to our notice any such plea having
been taken by the appellant.”
18. x x x x x x x x x
20. In Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779, this Court
observed 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.”
xxxxxxxxxx
21. In Saroop Singh v. Banto, (2005) 8 SCC 330, this Court observed:
“29. In terms of Article 65 the starting point of limitation does not
commence from the date when the right of ownership arises to the plaintiff
but commences from the date the defendant's possession becomes adverse.
(See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376)
30. ‘Animus possidendi’ is one of the ingredients of adverse possession. Unless
the person possessing the land has a requisite animus the period for prescription
does not commence. As in the instant case, the appellant categorically states that
his possession is not adverse as that of true owner, the logical corollary is that he
did not have the requisite animus. (See Md. Mohammad Ali v. Jagdish Kalita,
(2004) 1 SCC 271)”
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23. This Court had an occasion to examine the concept of adverse possession in
T. Anjanappa v. Somalingappa, (2006) 7 SCC 570. The Court observed that a
person who bases his title on adverse possession must show by clear and
unequivocal evidence that his title was hostile to the real owner and amounted to
denial of his title to the property claimed. The Court further observed that:
“20 … … … the classical requirements of acquisition of title by adverse possession
are that such possession in denial of the true owner's title must be peaceful, open
and continuous. The possession must be open and hostile enough to be capable of
being known by the parties interested in the property, though it is not necessary
that there should be evidence of the adverse possessor actually informing the real
owner of the former's hostile action.””(Emphasis supplied)
33. By now setting up the plea of adverse possession, the defendant is clearly
seeking to blow hot & cold at the same time, which is not permitted to do in law. The
defendant did not raise the plea of adverse possession in the earlier litigation between
the parties, as noticed hereinabove. His defence was premised on his plea of title
derived on the basis of the Will dated 15.08.1992, and on the basis of his being the
adopted son of late Smt. Nirmal Satyendra Singh. Thus, he cannot be permitted to
raise the said plea at this stage. In Nawab Hussain (supra), the Supreme Court
referred to Devilal Modi v. Sales Tax Officer, Ratlam, AIR 1965 SC 1150, wherein the
Supreme Court had observed in respect of the doctrine of constructive res judicata:
“This rule postulates that if a plea could have been taken by a party in a
proceeding between him and his opponent, he would not be permitted to take that
plea against the same party in a subsequent proceeding which is based on the
same cause of action; … … …”
34. In Nawab Hussain (supra), the Supreme Court applied the said doctrine and
observed:
“8. It is not in controversy before us that the respondent did not raise the plea,
in the writ petition which had been filed in the High Court, that by virtue of clause
(1) of Article 311 of the Constitution he could not be dismissed by the Deputy
Inspector-General of Police as he had been appointed by the Inspector-General of
Police. It is also not in controversy that that was an important plea which was
within the knowledge of the respondent and could well have been taken in the writ
petition, but he contended himself by raising the other pleas that he was not
afforded a reasonable opportunity to meet the case against him in the departmental
inquiry and that the action taken against him was mala fide. It was therefore not
permissible for him to challenge his dismissal, in the subsequent suit, on the other
ground that he had been dismissed by an authority subordinate to that by which he
was appointed. That was clearly barred by the principle of constructive res judicata,
and the High Court erred in taking a contrary view.”
35. In any event, as analysed hereinabove, there is no force in the said plea of
“adverse possession” in view of the history of the litigation undertaken by the parties.
36. A plea which is not tenable, or which is not statable, cannot come in the way of
the Court in decreeing the suit under Order XII Rule 6 CPC. I had occasion to consider
this aspect in another decision reported as Sunrise Construction v. Veena Wahi, ILR
(2009) VI Delhi 38. The plaintiff had filed the suit to seek the relief of specific
performance of an agreement to sell executed by the defendant in favour of the
plaintiff. The execution of the agreement was admitted by the defendant. However,
she claimed in her defence that the said written agreement did not reflect the
complete consideration payable by the plaintiff under the agreement. This Court
rejected the said defence as being barred under Sections 91 and 92 of the Evidence
Act. In the aforesaid background, the Court observed:
-----------------------------------------------------------------------------------------------------------------------------------------------------------
“33. If the plaintiff has made its claim founded upon a documented transaction
and the execution of the document is admitted, one of the fundamental concern of
a court while considering whether a case for passing of a decree under Order 12
Rule 6 CPC is made out or not, is that the defendant is given ample opportunity to
prove his pleaded defence. However, in a case where defence itself is unstateable
and/or is barred under some law, it is a case of “no defence” and in my view it is
not necessary to drag the suit. The court can proceed to decide the matter on its
merits… … …
xxxxxxxxx
37 … … … There is no reason why the Court cannot cut short the procedure in a
case like the present, which is founded upon an admitted document, and the
defence is found to be unstateable, unsustainable and barred under the laws of
evidence and in equity.
38. When no material issues of fact arise from the pleadings of the parties,
merely because legal issues remain to be determined the Court may not postpone
the decision of the legal issues till after the conduct of a meaningless trial. Looking
to the burgeoning dockets of the Courts, I feel the Court should seize the
opportunity at the earliest to examine whether material triable issues of fact arise
which would require a trial, or whether the suit can be decided on the basis of the
admitted facts by application of established legal principles. The prescribed
procedures have been evolved to serve as the hand maids of justice; to comply with
the rules of natural justice, and a routine adherence to procedure in the facts of a
given case may not necessarily be called for and may work injustice to one of the
parties. However, departure from the uniform procedure would require the existence
of justifiable reasons in a given case. If justifiable reasons exist, the procedures
cannot weigh down the progress and disposal of a cause. I may refer to the decision
of the Division Bench of this Court in 142 (2007) DLT 483 (DB) Viiava Myne v.
Satva Bhushan Kaura. The Division Bench summarized the purpose and objective of
enacting Order 12 Rule 6 CPC, which enables the court to pronounce judgment and
save parties from going through the rigmorale of a protracted trial. The Division
Bench held:
“The admission can be in the pleadings or otherwise, namely in documents,
correspondence etc. These can be oral or in writing. The admissions can even be
constructive admissions and need not be specific or expressive which can be
inferred from the vague and evasive denial in the written statement while
answering specific pleas raised by the plaintiff. The admissions can even be inferred
from the facts and circumstances of the case. No doubt, for this purpose, the Court
has to scrutinize the pleadings in their detail and has to come to the conclusion that
the admissions arc unequivocal, unqualified and unambiguous. In the process, the
Court is also required to ignore vague, evasive and unspecific denials as well as
inconsistent pleas taken in the written statement and replies. Even a contrary stand
taken while arguing the matter would be required to be ignored.””
37. The plaintiffs, admittedly are the Class-I heirs of the deceased owner late Smt.
Nirmal Satyendra Singh. On the other hand, the defendant has no right, title or
interest therein. He is, therefore, bound to vacate the same as desired by the
plaintiffs. In the light of the aforesaid, no triable issue arises so far as the relief of
possession is concerned. Consequently, the application is allowed. A partial decree for
possession is passed in favour of the plaintiffs and against the defendant in respect of
the suit property i.e. i.e. flat having three floors with lawn and terrace and four servant
quarters in property no. 27, Rajpur, Delhi, shown in red colour in the site plan
attached with the plaint.
CS(OS) 2453/2015
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38. By the aforesaid order, the application under Order 12 Rule 6 CPC has been
allowed. The only claim that remains to be adjudicated is the claim for mesne
profits/damages.
39. The aforesaid being the only aspect, the following issues are framed:
i) Whether the plaintiff is entitled to claim damages during the period that the
defendant remained in possession from the date of filing of the suit till
possession is delivered to the plaintiff and, if so, at what rate and for what
period? OPP
ii) If the above issue is decided in favour of the plaintiff, whether the plaintiff is
entitled to interest on the aforesaid amount? OPP
40. The plaintiff shall file the list of witnesses within four weeks and the affidavit by
way of evidence towards examination in chief of its witnesses within six weeks. List
the matter before the Joint Registrar on 01.08.2016 for fixing dates for recording
evidence.
———
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Sarvinder Singh v. Vipul Tandon, 2016 SCC OnLine Del 2745

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Sarvinder Singh v. Vipul Tandon, 2016 SCC OnLine Del 2745

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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Saturday, April 13, 2024

2016 SCC OnLine Del 2745

In the High Court of Delhi at New Delhi

Sarvinder Singh & Anr. .…. Plaintiffs

late Smt. Nirmal Satyendra Singh.

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