Delhi HC Orders Gallery Occupants To Clear Co-Owner’s Space, Remove Tea Stall And Demolish Public-Land Chabutra Within 3 Months

In brief

The question

1. Whether the first appellate court’s findings were based on incorrect appreciation of evidence and were perverse, including as to the appellant’s co-ownership and entitlement to injunction.

The court held

The High Court allowed the appeal, set aside the judgments below and decreed the suit for permanent and mandatory injunction.

It also directed

Respondents 1 and 2 were directed to remove their belongings from the gallery and demolish the chabutra and tea stall within three months; if they failed to remove the chabutra, Respondents 3 and 4 were directed to take action in accordance with law.

The respondents were also restrained from entering the appellant’s premises or creating nuisance there.

01Facts

The appellant claimed co-ownership of property No. 410–414, Bazar Sita Ram, Delhi, through a registered sale deed, a will in his favour, and a family settlement with other heirs.

¶ 2–5

He alleged that Respondents 1 and 2 had occupied a first-floor gallery and erected a chabutra and tea stall outside the property.

¶ 2–5

The trial court dismissed his suit for permanent and mandatory injunction, finding that he had not established title and that the claim against alleged trespassers required a suit for possession; the first appellate court affirmed.

¶ 2–5

In this second appeal, the High Court considered whether the first appellate court’s findings rested on incorrect appreciation of evidence and were perverse.

¶ 2–5, 20–25, 38–40

02Issues

i.1. Whether the first appellate court’s findings were based on incorrect appreciation of evidence and were perverse, including as to the appellant’s co-ownership and entitlement to injunction.

¶ 38

ii.2. Whether the appellant could obtain mandatory and permanent injunctions to remove the respondents’ occupation of the gallery and the chabutra and tea stall, rather than seeking possession.

¶ 33–34, 53, 69

03Law Applied

Under Section 100 of the Code of Civil Procedure, a second appeal lies on a substantial question of law, including where material evidence has been wrongly assessed so as to produce a perverse finding.

¶ 1, 38, 70

Sections 17 and 49 of the Registration Act, 1908 require registration of instruments that themselves create or extinguish rights in immovable property, but a memorandum recording a previously concluded family arrangement need not be registered; the Court relied on Kale v. Deputy Director of Consolidation (1976) 3 SCC 119 and Korukonda Chalapathi Rao v. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847.

¶ 48–50

A claim of adverse possession requires proof of actual, open, continuous and hostile possession, with the requisite animus possidendi, for the statutory period; mere long possession is insufficient. The Court relied on Karnataka Board of Wakf v. Government of India (2004) 10 SCC 779, Konda Lakshmana Bapuji v. Government of A.P. (2002) 3 SCC 258, Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729, and T. Anjanappa v. Somalingappa (2006) 7 SCC 570.

¶ 55–61

The Court also considered Section 41(h) of the Specific Relief Act, 1963, concerning the availability of an equally efficacious remedy.

¶ 34

Provisions in the judgment · 10 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 100

Indian Penal Code, 1860 Section 448 Section 380 Section 34

Delhi Municipal Corporation Act, 1957 Section 477 Section 478

Registration Act, 1908 Section 17 Section 49

Specific Relief Act, 1963 Section 39 Section 41

04Reasoning

The High Court found that the courts below had failed to account for the family-settlement memorandum, which was proved in evidence and had been endorsed in the decree disposing of the partition suit; it therefore supported the appellant’s co-ownership and standing to sue.

¶ 42–52

The respondents had not disputed the memorandum’s authenticity or established an independent right to the property.

¶ 47

Their assertion of occupation for over 35 years did not establish adverse possession because they produced no cogent evidence of when possession began or that it had been openly and continuously hostile to the owner for the requisite period.

¶ 62–64

The Court treated the gallery occupation as an encroachment and held that mandatory injunction was maintainable to require removal of the respondents’ belongings; it also found the evidence sufficient to support removal of the chabutra and tea stall.

¶ 53, 65–71