Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 330/2003
th
% 9 December, 2011
SH. ASHOK BHATIA ..... Appellant
Through : Mr. Arun Birbal, Advocate.
versus
SH. OM PRAKASH MALHOTRA ..... Respondent
Through : Mr. A.P. Aggarwal, Advocate.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The counsel for the respondent says that the respondent has taken
back the file and, therefore, he has no instructions. This matter is on the
Regular Board of this Court since 4.7.2011. Today the matter is effective
item No.6 on the Regular Board. I have, therefore, heard counsel for the
appellant and am proceeding to dispose of the appeal.
2. The challenge by means of this Regular First Appeal filed under
Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment dated 18.1.2003 passed by the Trial Court. By the impugned
judgment, the Trial Court dismissed the suit for possession and mesne
profits filed by the appellant / plaintiff.
RFA No.330/2003 Page 1 of 11
3. The facts of the case are that the appellant / plaintiff claiming himself
to be the owner / landlord of the premises bearing No.A-1/118, Lajpat
Nagar, New Delhi filed the subject suit for possession with respect to
encroachment of 510 square feet of land belonging to the appellant / plaintiff
by the respondent / tenant / defendant. The defendant was a tenant only in
respect of one room in the property A-1/118, Lajpat Nagar, New Delhi on
the ground floor at a monthly rent of ` 275/- excluding electricity charges. It
was pleaded that one tenant, Sh. Subhash Narula has forged a false Will of
the mother of the plaintiff dated 10.7.1996 and trespassed into different parts
of the property. It was also alleged that the respondent / defendant had
sublet part of the encroached portion to a person whose name was not known
to the appellant / plaintiff. The subject suit for possession was, therefore,
filed alleging the respondent / defendant to be a trespasser and also claiming
therein mesne profits for three years prior to filing of the suit.
4. The respondent / defendant contested the suit by objecting to the
maintainability thereof, as per Order 2 Rules 3 and 4 CPC, on the ground of
misjoinder of causes of action. It was also pleaded that the suit was barred
by time.
5. After completion of pleadings, the Trial Court framed the following
issues:
RFA No.330/2003 Page 2 of 11
“1. Whether the present suit of the plaintiff is not maintainable
u/s 50 of the DRC Act? OPD
2. Whether the present suit is barred u/o 2, 3 & 4 of CPC as
alleged in P.O. No.2? OPD
3. Whether the present suit of the plaintiff is barred by
limitation as alleged in P.O. No.5? OPD
4. Whether the suit of the plaintiff has been properly
valued?OPP
5. Whether the plaintiff is entitled for the decree of
possession? OPP
6. Whether the plaintiff is entitled for damages / mesne
profits as alleged? OPP
7. Whether the plaintiff is entitled for the decree of
permanent injunction? OPP
8. Relief.”
6. So far as issue No.1 is concerned, the Trial Court has rightly held the
suit not to be barred by Section 50 of the Delhi Rent Control Act, 1958
inasmuch as the respondent / defendant was not a tenant of the encroached
area but was a tenant of only one room. The suit for possession was
therefore not for a tenanted premises but for an encroached portion not being
the tenanted portion and consequently there was no bar to filing of the suit
under Section 50 of the Delhi Rent Control Act, 1958.
7. The Trial Court, however, found in favour of the respondent /
RFA No.330/2003 Page 3 of 11
defendant on issue No.2 with respect to misjoinder by holding that the
subject suit was a suit for possession, mesne profits and injunction, and that
since injunction cannot be claimed in a suit for recovery of possession with
mesne profits as per Order 2 Rule 4 CPC the suit was liable to be dismissed.
In my opinion, the Trial Court has wrongly relied upon Order 2 Rule 4
CPC to dismiss the suit inasmuch as the said provision itself provides for a
leave to be granted by the court in appropriate cases. In the present case,
surely the relief of injunction was very much related to the cause of action of
the suit for possession and mesne profits because the injunction which was
prayed for was stopping of the misuse of the encroached portion as
commercial premises entitling leave to the appellant / plaintiff for joining the
cause of action for injunction, however, I need not delve into this aspect
further inasmuch as counsel for the appellant / plaintiff says that he does not
press the relief of injunction.
8. The only other issue which now requires to be examined is as to
whether the suit was barred by time. Once the appellant / plaintiff is the
owner of the portion in respect of which possession is prayed, the suit can be
barred by limitation only if the respondent / defendant would have taken a
plea for adverse possession. A reading of the pleadings in the suit, and the
issues framed, shows that no issue was framed with respect to the fact of the
RFA No.330/2003 Page 4 of 11
respondent / defendant having become owner by adverse possession. The
issue was only whether the suit was barred by limitation. Further, even
assuming that there was such an issue which was framed, the only evidence
which has been led on behalf of the respondent / defendant is of long
possession and not of adverse possession. Adverse possession is different
from long possession. Long possession is not automatically adverse
possession inasmuch as adverse possession exists only if hostile and
continuous possession claiming ownership in the property is proved. The
Trial Court while dealing with this issue has observed as under, which
though extensive will have to be reproduced to demonstrate the lack of the
necessary conclusion of adverse possession of the defendant / respondent for
the suit to be dismissed on that ground:-
“In consideration of the submissions made by both the
counsels, I have also perused the pleadings of the parties
and as per the pleadings of the parties in para 4 it is stated
that the defendant in connivance with other tenants had been
hatching conspiracy for encroaching the property. One
tenant Sh.Subhash Narula has succeeded in manipulating a
forged and false WILL of the aged mother of the plaintiff
allegedly dated 10.7.96 by committing forgery and
immediately after obtaining the aforesaid forged WILL,
some of the tenants trespassed on different parts of the
property of the plaintiff. The defendant has also illegally
encroached upon all the vacant premises starting from the
back side of the defendant’s tenanted premises upto the end
RFA No.330/2003 Page 5 of 11
of the service lane and upto the boundary of house no.A-
1/119 except a small structure which is not inhabitable and
which is in possession of the plaintiff. It means that the
defendant has also encroached and trespassed the back
portion of the property on 10.7.96 and as per the written
arguments Ld. counsel for the plaintiff has argued the same
thing. As per the pleadings the defendant is the tenant for
the front portion of the suit premises and shop which is
mentioned in para no.1 and the case of the defendant is that
the portion which is being claimed as unauthorised by the
plaintiff was under the tenancy already existing in the year
1985 and total rate of rent was Rs.275/- p.m. In
consideration of the facts, I also perused the testimony of
PW1 Sh. Ashok Bhatia and in para 3 of his testimony by
way of affidavit has stated that the defendant Sh. Om
Prakash Malhotra has illegally encroached upon all the
vacant premises starting from the backside of the tenanted
premises upto the end of service lane and upto the boundary
of the house no. A-1/109 except a small structure, which is
in possession of the plainitiff. But he has not disclosed the
period from which the defendant Sh. O.P. Malhotra
encroached illegally upon all the vacant premises of the
back side of his tenancy. Even in cross examination, he has
stated that the tenancy of Sh. O.P. Malhotra was started in
his presence initially in the year 1974 and then in 1984
when the agreement was executed. He has further deposed
in his cross examination that it is correct that till the life
time of his mother he never looked after this property nor he
took any rent from the tenants at any time. He saw the rent
note first time when it was executed in the year 1984 in the
month of March in the presence of his deceased father and
Subhash Narula and other tenants Sh. R.P.Singh and
Mr.Sachdeva and no written document was prepared about
tenancy in the year 1974 in his presence. He does not know
RFA No.330/2003 Page 6 of 11
whether any rent receipt had ever been issued to the tenant
because the rent used to take by his father and his mother in
their life time. It is not in his knowledge that the rent was
Rs.220/- p.m. in the year 1974 vol. but it was written in the
agreement Ex.PW1/4. He has already narrated to his
counsel to the notice dt. 25.9.2000 that the deft. has forcibly
occupied the disputed portion in the year 1996. But on
perusal of the copy of the notice even in para 3, no time and
period has been mentioned as to when and on which date the
defendant have illegally encroached all the vacant premises
starting from back side of his tenanted premises upto the
service lane. Even in para 4 of the plaint it is not crystal
clear as and when the defendant has illegally encroached the
back portion of his tenanted premises and even in cross
examination PW1 who is plaintiff himself has stated that he
cannot say whether the defendant is living in C-1/43 Lajpat
Nagar prior to 1984 or after 1984. He denied the suggestion
that in 1985 the red portion of Ex.PW1/3 was let out by his
mother to Om Prakash and total rent of both the portions
was Rs.275/- p.m. PW2 Sh. R.P. Singh in para 6 has
deposed in affidavit that for the last 5-6 years Sh. Om
Prakash Malhotra has occupied the back portion of the
premises which was not included in the tenanted premises at
the time of agreement. In cross examination he has stated
that at the except him, there were another 4/5 persons were
present there including Mr. Sachdeva, Malhotra and one
person who was property dealer, father and mother of the
plaintiff and one D.B. Singh who is his associate was also
present and besides these persons no other person was
present. But the said Ex.PW1/4 was not typed in his
presence and it was already typed. He does not know the
name of the occupier at the ground floor in the year 1984.
He admitted that in the year 1984 there was a gate in the
shop open towards galiyara. He does not know from which
RFA No.330/2003 Page 7 of 11
period the plaintiff was remained in the occupation of the
back portion of the shop in question i.e. galiara, varanda,
latrine and bath but from the last 4/5 years the gate was
closed even the entry to the upstair was also closed and now
it is in the occupation of defendant. He has no knowledge
whether the said portion i.e. back of the shop was given on
rent basis to Sh. Om Prakash Malhotra in 1984. He has no
knowledge about the monthly rent of Sh. O.P. Malhotra
even prior to 1984. He has further stated in his cross
examination that in the quarrel Ashok Bhatia did not ask or
utter to give back the possession of the disputed premises to
him. I also perused the testimony of DW1 Subhash Narula
and he has deposed that he came as tenant in the year 1980
at ground fllor and since that he is seeing Sh. O.P. Malhotra
using the shop in front side for commercial purposes of
running the business. In the year 1985 he took the back
side portion and same is in possession of the back side
portion. But no cross examination has been conducted that
the defendant has not taken the back portion in the year
1985. I also perused the testimony of Sh. O.P. Malhotra and
even he has stated that in the year 1985 the defendant got
the tenancy of back portion which was having passage from
the shop which was earlier under the tenancy of him from
Sh. Hem Raj Bhatia and the entire rent was ` 275/- p.m.
Thereafter taking the portion under the tenancy in the year
1985, the respondent constructed one store, one bath, WC
inside the said shop and is in possession of the entire portion
of the front shop and the back portion since the year 1985. I
also perused his cross examination and even in cross
examination the suggestion was given by the plaintiff
counsel that the premises were given by Ms. Motia Bhatia
in the year 1984 and this suggestion has been denied by the
witness but no question has been asked that the back portion
was taken by him in the year 1985. I also perused the
RFA No.330/2003 Page 8 of 11
testimony of DW3 to DW7 and DW3 has deposed that since
1986 he is seeing Sh. O.P. Malhotra doing the business in
the back side portion and he is in possession of the back side
portion. DW4 has deposed that he is also seeing the
property in dispute for the last more than 30 years.
Previously, a hall on the back side of the shop which is
presently with Sh. O.P. Malhotra was with Sh. Hem Raj
Bhatia and for the last more than 16/17 years he is seeing
Om Prakash Malhotra in possession of the said back side
hall and he is carrying on the business in the said portion.
DW5 Sh. Balwant Rai Chopra has also deposed the same
thing about the possession of the defendant as well as DW6
Sh. R.K. Mehta and DW7 Sh. Subhash Puri also deposed on
the same line about the possession of defendant. But no
question has been asked by the plaintiff counsel that
defendant is not in possession of the said premises since
1985. Even the plaintiff has failed to give any particular
date, month & year as and when the defendant has occupied
the back portion of the property in dispute illegally. As per
the Schedule of Limitation Act, 1963 Part (v) which deals –
Suit relating to immovable property Article 64 & 65, the
limitation period is 12 years and as per the case law cited by
the defendant counsel AIR 1974 SC 1866 wherein it was
held that Limitation for filing the suit for possession is 12
years from the date when the plaintiff was dispossessed and
present suit has been filed by the plaintiff on 24.5.2001 and
the plaintiff has failed to give the proper date, month and
year as and when the defendant has illegally occupied the
back portion of the property in dispute. However, all the
DW1 to DW7 have given the year that defendant O.P.
Malhotra has took the back portion on rent in the year 1986.
So, the suit has been filed by the plaintiff on 24.5.2001 and
it should have been filed on or before in the year 1998. So,
I am of the considered view that the present suit of the
RFA No.330/2003 Page 9 of 11
plaintiff is barred by limitation as per the limitation
mentioned in Article 64 & 65. Issue no.3 is disposed off
accordingly in favour of the defendant and against the
plaintiff.”
9. A reference to the aforesaid discussion shows that the Trial Court has
arrived at a finding as to a specific date or month or year when the
possession became adverse to the appellant / plaintiff. Obviously, this
finding of the appellant / plaintiff having lost the title to the defendant /
respondent on account of the latter’s alleged adverse possession could not
have been given because no documentary evidence was led to show adverse
possession. No doubt some witnesses have deposed in favour of the
respondent / defendant with respect to his possession and trespassing,
however, nothing has been filed on record that this possession was a
possession of an owner i.e. open hostile and continuous as against the
appellant / plaintiff who was the actual owner of the property. The
respondent / defendant, therefore, miserably failed to plead or prove the case
of the adverse possession.
10. In view of the above, appeal is allowed. Impugned judgment and
decree dated 18.1.2003 is set aside. The suit of the appellant / plaintiff is
decreed for possession with respect to the portion shown in red in the site
plan Ex. PW-1/3 forming part of the larger property bearing No.A-1/118,
RFA No.330/2003 Page 10 of 11
Lajpat Nagar, New Delhi. Parties are left to bear their own costs. Decree
sheet be prepared. Trial Court record be sent back.
VALMIKI J. MEHTA, J.
DECEMBER 9, 2011
dk
RFA No.330/2003 Page 11 of 11
+ RFA No. 330/2003
th
% 9 December, 2011
SH. ASHOK BHATIA ..... Appellant
Through : Mr. Arun Birbal, Advocate.
versus
SH. OM PRAKASH MALHOTRA ..... Respondent
Through : Mr. A.P. Aggarwal, Advocate.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The counsel for the respondent says that the respondent has taken
back the file and, therefore, he has no instructions. This matter is on the
Regular Board of this Court since 4.7.2011. Today the matter is effective
item No.6 on the Regular Board. I have, therefore, heard counsel for the
appellant and am proceeding to dispose of the appeal.
2. The challenge by means of this Regular First Appeal filed under
Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment dated 18.1.2003 passed by the Trial Court. By the impugned
judgment, the Trial Court dismissed the suit for possession and mesne
profits filed by the appellant / plaintiff.
RFA No.330/2003 Page 1 of 11
3. The facts of the case are that the appellant / plaintiff claiming himself
to be the owner / landlord of the premises bearing No.A-1/118, Lajpat
Nagar, New Delhi filed the subject suit for possession with respect to
encroachment of 510 square feet of land belonging to the appellant / plaintiff
by the respondent / tenant / defendant. The defendant was a tenant only in
respect of one room in the property A-1/118, Lajpat Nagar, New Delhi on
the ground floor at a monthly rent of ` 275/- excluding electricity charges. It
was pleaded that one tenant, Sh. Subhash Narula has forged a false Will of
the mother of the plaintiff dated 10.7.1996 and trespassed into different parts
of the property. It was also alleged that the respondent / defendant had
sublet part of the encroached portion to a person whose name was not known
to the appellant / plaintiff. The subject suit for possession was, therefore,
filed alleging the respondent / defendant to be a trespasser and also claiming
therein mesne profits for three years prior to filing of the suit.
4. The respondent / defendant contested the suit by objecting to the
maintainability thereof, as per Order 2 Rules 3 and 4 CPC, on the ground of
misjoinder of causes of action. It was also pleaded that the suit was barred
by time.
5. After completion of pleadings, the Trial Court framed the following
issues:
RFA No.330/2003 Page 2 of 11
“1. Whether the present suit of the plaintiff is not maintainable
u/s 50 of the DRC Act? OPD
2. Whether the present suit is barred u/o 2, 3 & 4 of CPC as
alleged in P.O. No.2? OPD
3. Whether the present suit of the plaintiff is barred by
limitation as alleged in P.O. No.5? OPD
4. Whether the suit of the plaintiff has been properly
valued?OPP
5. Whether the plaintiff is entitled for the decree of
possession? OPP
6. Whether the plaintiff is entitled for damages / mesne
profits as alleged? OPP
7. Whether the plaintiff is entitled for the decree of
permanent injunction? OPP
8. Relief.”
6. So far as issue No.1 is concerned, the Trial Court has rightly held the
suit not to be barred by Section 50 of the Delhi Rent Control Act, 1958
inasmuch as the respondent / defendant was not a tenant of the encroached
area but was a tenant of only one room. The suit for possession was
therefore not for a tenanted premises but for an encroached portion not being
the tenanted portion and consequently there was no bar to filing of the suit
under Section 50 of the Delhi Rent Control Act, 1958.
7. The Trial Court, however, found in favour of the respondent /
RFA No.330/2003 Page 3 of 11
defendant on issue No.2 with respect to misjoinder by holding that the
subject suit was a suit for possession, mesne profits and injunction, and that
since injunction cannot be claimed in a suit for recovery of possession with
mesne profits as per Order 2 Rule 4 CPC the suit was liable to be dismissed.
In my opinion, the Trial Court has wrongly relied upon Order 2 Rule 4
CPC to dismiss the suit inasmuch as the said provision itself provides for a
leave to be granted by the court in appropriate cases. In the present case,
surely the relief of injunction was very much related to the cause of action of
the suit for possession and mesne profits because the injunction which was
prayed for was stopping of the misuse of the encroached portion as
commercial premises entitling leave to the appellant / plaintiff for joining the
cause of action for injunction, however, I need not delve into this aspect
further inasmuch as counsel for the appellant / plaintiff says that he does not
press the relief of injunction.
8. The only other issue which now requires to be examined is as to
whether the suit was barred by time. Once the appellant / plaintiff is the
owner of the portion in respect of which possession is prayed, the suit can be
barred by limitation only if the respondent / defendant would have taken a
plea for adverse possession. A reading of the pleadings in the suit, and the
issues framed, shows that no issue was framed with respect to the fact of the
RFA No.330/2003 Page 4 of 11
respondent / defendant having become owner by adverse possession. The
issue was only whether the suit was barred by limitation. Further, even
assuming that there was such an issue which was framed, the only evidence
which has been led on behalf of the respondent / defendant is of long
possession and not of adverse possession. Adverse possession is different
from long possession. Long possession is not automatically adverse
possession inasmuch as adverse possession exists only if hostile and
continuous possession claiming ownership in the property is proved. The
Trial Court while dealing with this issue has observed as under, which
though extensive will have to be reproduced to demonstrate the lack of the
necessary conclusion of adverse possession of the defendant / respondent for
the suit to be dismissed on that ground:-
“In consideration of the submissions made by both the
counsels, I have also perused the pleadings of the parties
and as per the pleadings of the parties in para 4 it is stated
that the defendant in connivance with other tenants had been
hatching conspiracy for encroaching the property. One
tenant Sh.Subhash Narula has succeeded in manipulating a
forged and false WILL of the aged mother of the plaintiff
allegedly dated 10.7.96 by committing forgery and
immediately after obtaining the aforesaid forged WILL,
some of the tenants trespassed on different parts of the
property of the plaintiff. The defendant has also illegally
encroached upon all the vacant premises starting from the
back side of the defendant’s tenanted premises upto the end
RFA No.330/2003 Page 5 of 11
of the service lane and upto the boundary of house no.A-
1/119 except a small structure which is not inhabitable and
which is in possession of the plaintiff. It means that the
defendant has also encroached and trespassed the back
portion of the property on 10.7.96 and as per the written
arguments Ld. counsel for the plaintiff has argued the same
thing. As per the pleadings the defendant is the tenant for
the front portion of the suit premises and shop which is
mentioned in para no.1 and the case of the defendant is that
the portion which is being claimed as unauthorised by the
plaintiff was under the tenancy already existing in the year
1985 and total rate of rent was Rs.275/- p.m. In
consideration of the facts, I also perused the testimony of
PW1 Sh. Ashok Bhatia and in para 3 of his testimony by
way of affidavit has stated that the defendant Sh. Om
Prakash Malhotra has illegally encroached upon all the
vacant premises starting from the backside of the tenanted
premises upto the end of service lane and upto the boundary
of the house no. A-1/109 except a small structure, which is
in possession of the plainitiff. But he has not disclosed the
period from which the defendant Sh. O.P. Malhotra
encroached illegally upon all the vacant premises of the
back side of his tenancy. Even in cross examination, he has
stated that the tenancy of Sh. O.P. Malhotra was started in
his presence initially in the year 1974 and then in 1984
when the agreement was executed. He has further deposed
in his cross examination that it is correct that till the life
time of his mother he never looked after this property nor he
took any rent from the tenants at any time. He saw the rent
note first time when it was executed in the year 1984 in the
month of March in the presence of his deceased father and
Subhash Narula and other tenants Sh. R.P.Singh and
Mr.Sachdeva and no written document was prepared about
tenancy in the year 1974 in his presence. He does not know
RFA No.330/2003 Page 6 of 11
whether any rent receipt had ever been issued to the tenant
because the rent used to take by his father and his mother in
their life time. It is not in his knowledge that the rent was
Rs.220/- p.m. in the year 1974 vol. but it was written in the
agreement Ex.PW1/4. He has already narrated to his
counsel to the notice dt. 25.9.2000 that the deft. has forcibly
occupied the disputed portion in the year 1996. But on
perusal of the copy of the notice even in para 3, no time and
period has been mentioned as to when and on which date the
defendant have illegally encroached all the vacant premises
starting from back side of his tenanted premises upto the
service lane. Even in para 4 of the plaint it is not crystal
clear as and when the defendant has illegally encroached the
back portion of his tenanted premises and even in cross
examination PW1 who is plaintiff himself has stated that he
cannot say whether the defendant is living in C-1/43 Lajpat
Nagar prior to 1984 or after 1984. He denied the suggestion
that in 1985 the red portion of Ex.PW1/3 was let out by his
mother to Om Prakash and total rent of both the portions
was Rs.275/- p.m. PW2 Sh. R.P. Singh in para 6 has
deposed in affidavit that for the last 5-6 years Sh. Om
Prakash Malhotra has occupied the back portion of the
premises which was not included in the tenanted premises at
the time of agreement. In cross examination he has stated
that at the except him, there were another 4/5 persons were
present there including Mr. Sachdeva, Malhotra and one
person who was property dealer, father and mother of the
plaintiff and one D.B. Singh who is his associate was also
present and besides these persons no other person was
present. But the said Ex.PW1/4 was not typed in his
presence and it was already typed. He does not know the
name of the occupier at the ground floor in the year 1984.
He admitted that in the year 1984 there was a gate in the
shop open towards galiyara. He does not know from which
RFA No.330/2003 Page 7 of 11
period the plaintiff was remained in the occupation of the
back portion of the shop in question i.e. galiara, varanda,
latrine and bath but from the last 4/5 years the gate was
closed even the entry to the upstair was also closed and now
it is in the occupation of defendant. He has no knowledge
whether the said portion i.e. back of the shop was given on
rent basis to Sh. Om Prakash Malhotra in 1984. He has no
knowledge about the monthly rent of Sh. O.P. Malhotra
even prior to 1984. He has further stated in his cross
examination that in the quarrel Ashok Bhatia did not ask or
utter to give back the possession of the disputed premises to
him. I also perused the testimony of DW1 Subhash Narula
and he has deposed that he came as tenant in the year 1980
at ground fllor and since that he is seeing Sh. O.P. Malhotra
using the shop in front side for commercial purposes of
running the business. In the year 1985 he took the back
side portion and same is in possession of the back side
portion. But no cross examination has been conducted that
the defendant has not taken the back portion in the year
1985. I also perused the testimony of Sh. O.P. Malhotra and
even he has stated that in the year 1985 the defendant got
the tenancy of back portion which was having passage from
the shop which was earlier under the tenancy of him from
Sh. Hem Raj Bhatia and the entire rent was ` 275/- p.m.
Thereafter taking the portion under the tenancy in the year
1985, the respondent constructed one store, one bath, WC
inside the said shop and is in possession of the entire portion
of the front shop and the back portion since the year 1985. I
also perused his cross examination and even in cross
examination the suggestion was given by the plaintiff
counsel that the premises were given by Ms. Motia Bhatia
in the year 1984 and this suggestion has been denied by the
witness but no question has been asked that the back portion
was taken by him in the year 1985. I also perused the
RFA No.330/2003 Page 8 of 11
testimony of DW3 to DW7 and DW3 has deposed that since
1986 he is seeing Sh. O.P. Malhotra doing the business in
the back side portion and he is in possession of the back side
portion. DW4 has deposed that he is also seeing the
property in dispute for the last more than 30 years.
Previously, a hall on the back side of the shop which is
presently with Sh. O.P. Malhotra was with Sh. Hem Raj
Bhatia and for the last more than 16/17 years he is seeing
Om Prakash Malhotra in possession of the said back side
hall and he is carrying on the business in the said portion.
DW5 Sh. Balwant Rai Chopra has also deposed the same
thing about the possession of the defendant as well as DW6
Sh. R.K. Mehta and DW7 Sh. Subhash Puri also deposed on
the same line about the possession of defendant. But no
question has been asked by the plaintiff counsel that
defendant is not in possession of the said premises since
1985. Even the plaintiff has failed to give any particular
date, month & year as and when the defendant has occupied
the back portion of the property in dispute illegally. As per
the Schedule of Limitation Act, 1963 Part (v) which deals –
Suit relating to immovable property Article 64 & 65, the
limitation period is 12 years and as per the case law cited by
the defendant counsel AIR 1974 SC 1866 wherein it was
held that Limitation for filing the suit for possession is 12
years from the date when the plaintiff was dispossessed and
present suit has been filed by the plaintiff on 24.5.2001 and
the plaintiff has failed to give the proper date, month and
year as and when the defendant has illegally occupied the
back portion of the property in dispute. However, all the
DW1 to DW7 have given the year that defendant O.P.
Malhotra has took the back portion on rent in the year 1986.
So, the suit has been filed by the plaintiff on 24.5.2001 and
it should have been filed on or before in the year 1998. So,
I am of the considered view that the present suit of the
RFA No.330/2003 Page 9 of 11
plaintiff is barred by limitation as per the limitation
mentioned in Article 64 & 65. Issue no.3 is disposed off
accordingly in favour of the defendant and against the
plaintiff.”
9. A reference to the aforesaid discussion shows that the Trial Court has
arrived at a finding as to a specific date or month or year when the
possession became adverse to the appellant / plaintiff. Obviously, this
finding of the appellant / plaintiff having lost the title to the defendant /
respondent on account of the latter’s alleged adverse possession could not
have been given because no documentary evidence was led to show adverse
possession. No doubt some witnesses have deposed in favour of the
respondent / defendant with respect to his possession and trespassing,
however, nothing has been filed on record that this possession was a
possession of an owner i.e. open hostile and continuous as against the
appellant / plaintiff who was the actual owner of the property. The
respondent / defendant, therefore, miserably failed to plead or prove the case
of the adverse possession.
10. In view of the above, appeal is allowed. Impugned judgment and
decree dated 18.1.2003 is set aside. The suit of the appellant / plaintiff is
decreed for possession with respect to the portion shown in red in the site
plan Ex. PW-1/3 forming part of the larger property bearing No.A-1/118,
RFA No.330/2003 Page 10 of 11
Lajpat Nagar, New Delhi. Parties are left to bear their own costs. Decree
sheet be prepared. Trial Court record be sent back.
VALMIKI J. MEHTA, J.
DECEMBER 9, 2011
dk
RFA No.330/2003 Page 11 of 11