Adverse possession — Closely related parties, Effect of

January 20th, 2014

Adverse possession — Closely related parties, Effect of — Held, plea of adverse possession is not looked upon with favour especially when the parties are closely related to each other inasmuch as possession of one co-owner is treated to be possession for and on behalf of the other co-owner unless ouster is categorically proved.

Chatti Konati Rao and Ors. Vs. Palle Venkata Subba Rao (2010) 14 SCC 316 & T. Anjanappa & Ors. Vs. Somalingappa & Anr. (2006) 7 SCC 570, Relied on.

(Para 7)

Kanak Lata Jain v. Sudhir Kumar Jain, RFA No. 232/2011 (24/02/2012), 2012(4) ILR(Del) 176 [Valmiki J. Mehta, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse possession — Long possession, Effect of — Held, Mere long possession is not adverse possession.

(Para 7)

Kanak Lata Jain v. Sudhir Kumar Jain, RFA No. 232/2011 (24/02/2012), 2012(4) ILR(Del) 176 [Valmiki J. Mehta, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse possession — Requirement to prove — Held, plea of ownership by adverse possession should have been proved by leading clinching evidence showing the claim of ownership for a consistent period of 12 years before filing of the suit i.e. nec vi, nec clam, nec precario i.e. open, peaceful and continuous.

(Para 7)

Kanak Lata Jain v. Sudhir Kumar Jain, RFA No. 232/2011 (24/02/2012), 2012(4) ILR(Del) 176 [Valmiki J. Mehta, J.] <<LAWPACK DELHI HIGH COURT>>
Civil Procedure Code, 1908 — Order 39 Rules 1 & 2 r/w Section 100 — Permanent injunction — Concurrent findings of court below, After re-appraisal and scrutiny of evidence, Effect of — Plaintiff by registered sale deed purchased suit land from the legal heirs of Abdul Karim — Plaintiff filed suit for possession which were in unauthorized occupation of the defendants — Suit decreed in his favour and relief of permanent injunction granted — First appellate court endorsed the finding of the trial judge — Defendant/appellant preferred second appeal alleging adverse possession on the plea that at the time of partition some Muslim abandoned the property and the same was occupied by the appellants who even effected constructions thereon without any hindrance or obstacle — Held, ownership and identification of the suit land has been established through chain of successive oral and documentary evidence — Claim of adverse possession set up by the appellants/defendants was not substantiated — The onus to discharge this issue was on the defendants — Impugned judgment had noted that no documentary evidence including house tax receipt, ration card electricity and water bills of the suit premises had been produced by the defendants to set up their claim of adverse possession — Impugned judgment had endorsed the finding of the trial judge — This was after a re-appraisal and scrutiny of the oral and documentary evidence — At best this was a possession; mere possession does not mature into an adverse possession — To establish the plea of adverse possession, the possession must be open, peaceful, uninterrupted and hostile qua its true owner — None of this has been established by the defendants — This finding in no manner can be said to be perverse; it calls for no interference — Subject property was released as an evacuee property and plaintiff had thereafter purchased this property from the legal heirs of Abdul Karim — Suit had been filed within three years of the purchase of this property — Appeal dismissed — Adverse Possession — Entitlement for — Unsubstantiated claim, Effect of.

(Para 20, 21 & 22)

HELD: The claim of adverse possession set up by the appellants/defendants was not substantiated. The onus to discharge this issue was on the defendants. DW-1 had reiterated on oath that he is in possession since 1947; earlier this land was occupied by muslims who had fled to Pakistan, however, the only document which he could produce was Ex. DW-3/1 which was his licence evidencing his work as a blacksmith in the suit land since the year 1961-62. DW-1 in his cross-examination had admitted that electricity and water connection had been taken in the name of DW-2 Nain Singh in the year 1955 and 1968; no such document was produced. DW-1 had further stated that the house tax was paid by his elder brother DW-2 but no such house tax receipts were also produced. The impugned judgment had noted these facts. It had noted that no documentary evidence including house tax receipt, ration card electricity and water bills of the suit premises had been produced by the defendants to set up their claim of adverse possession. This fact finding had been returned in the impugned judgment while disposing of issue no.2. The impugned judgment had endorsed the finding of the trial judge. This was after a re-appraisal and scrutiny of the oral and documentary evidence. After a careful examination of this oral and documentary evidence this finding was arrived at. At best this was a possession; mere possession does not mature into an adverse possession. To establish the plea of adverse possession, the possession must be open, peaceful, uninterrupted and hostile qua its true owner. None of this has been established by the defendants. This finding in no manner can be said to be perverse; it calls for no interference.

(Para 21)

Ex.PW-1/3 is an order dated 22.11.1955 passed by the Assistant Custodian describing this suit property as ‘Khandhar’ and was declared as an evacuee property. Ex.PW1/2 is the order dated 30.4.1959 passed by the Assistant Custodian denotifying this property where again it has been referred to as a ‘Khandhar’. The denotification was in favour of Abdul Karim; property was released as an evacuee property on 11.7.1957. Plaintiff had thereafter purchased this property on 16.9.1975 vide Ex. PW-1/1 from the legal heirs of Abdul Karim. Suit had been filed in 1978 i.e. within three years of the purchase of this property. It was within limitation. The additional substantial question of law formulated on 15.11.2007 is also answered against the appellant and in favour of the respondent.

(Para 22)

Hoshiar Singh v. Om Prakash, RSA No. 103/2004 & CM Nos. 5533/2004 & 3384/2006 (28/02/2011), 2011(2) ILR(Del) 844 [Indermeet Kaur, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Burden of proof and effect of plea of adverse possession — Onus to prove that petitioners have been in occupation of land and their possession was open, hostile to true owner can be said to be on petitioners — Petitioners contended that they have been in possession of land under title inherited from their forefathers and respondent-University is not owner of land in question — Plea of adverse possession and of title can be said to be mutually inconsistent — A person claiming title and right there under should be clear about origin of title of property and claim should be elucidated — When a plea of adverse possession is projected, it is inherent in plea itself that someone else is owner of property and claimant can plead and prove his assertion of independent, hostile adverse possession to knowledge of actual owner during entire period of 12 years — Limitation Act, 1963 — Article 65.

(Para 4)

Mawasee v. Jamia Milia Islamia University, W.P.(C) Nos. 4929/2007, 4930/2007 & 5292/2007 (22/01/2010), 2010(167) DLT 393: 2010(4) AD(Delhi) 600 [Sanjiv Khanna, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Long and continuous possession — Relevancy of, scope — Long and continuous possession by itself does not constitute adverse possession, if it is either permissive possession or possession without possendendi — Further lis based on title and adverse possession are mutually inconsistent and latter does not begin to operate till former is renounced — Unless person in possession of property has requisite animus to possess property, hostile to title of owner, period of prescription does not commence — Limitation Act, 1963 — Article 65.

L.N. Aswathama and Another v. P. Prakash, JT 2009(9) SC 527, Referred.

(Para 3)

Mawasee v. Jamia Milia Islamia University, W.P.(C) Nos. 4929/2007, 4930/2007 & 5292/2007 (22/01/2010), 2010(167) DLT 393: 2010(4) AD(Delhi) 600 [Sanjiv Khanna, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse possession — Entitlement for — Necessary requirements for — Claim for adverse possession or title by prescription is established only when claimant is in actual physical possession, exclusive, open, uninterrupted, notorious and hostile to true owner for a period exceeding 12 years — Limitation Act, 1963 — Article 65.

L.N. Aswathama and Another v. P. Prakash, JT 2009(9) SC 527, Referred.

(Para 3)

Mawasee v. Jamia Milia Islamia University, W.P.(C) Nos. 4929/2007, 4930/2007 & 5292/2007 (22/01/2010), 2010(167) DLT 393: 2010(4) AD(Delhi) 600 [Sanjiv Khanna, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Proof of adverse possession — Lack of, scope — Plaintiff and its sister-concern who are erstwhile tenants of property in question had purchased the property — One `RSJ’, the director of plaintiff and its sister concern let-out the property to defendant no.1 — Merger of plaintiff and its sister concern — Failure of defendant no. 1 to pay rent — Plaintiff filed suit for possession — Plea of adverse possession — Defendant claims plaintiff is not the true owner — Whether defendant proved plea of adverse possession? — Held, no — Defendant to show that his possession is hostile to true owner — Plea of defendant that plaintiff is not the true owner per se negatives its assertion that he has perfected title by adverse possession vis-a-vis plaintiff — Limitation Act, 1963 — Article 65.

HELD: As far as the Defendant No.1 is concerned, he filed an affidavit by way of examination-in-chief dated 30th July 2007. According to the Defendant No.1, suit premises was given to him by R.C. Jain since he wanted to do it as act of gratitude for the agency of Telco. Defendant No.1 claims not to be aware as to who has been paying the property tax and other related taxes. This answer by itself is a clear indication that the Defendant No.1 was not in possession of the suit premises. If in fact had the Defendant No.1 been in possession of the suit property, it would have been paying the property tax and other taxes. Defendant No.1 also claims to have been unaware of the sale deed dated 22nd July 1975 or its mutation in the name of the Plaintiff. The witness admitted that they were having an agency of Defendant No.2.

The Defendant No.1 has miserably failed to prove that he has perfected title to the suit property by adverse possession. Defendant No.1 has not placed on record any document to show that it has been in continuous possession of the suit property or has been paying its property taxes or electricity charges.

It was sought to be asserted by the counsel for the Defendant No.1 that the period for claiming adverse possession should be construed as commencing on 31st July 1990 when the Defendant No.1 asserted such adverse possession in the written statement. This submission is clearly misconceived. The ingredients of the plea of adverse possession has been explained by the Supreme Court in the aforementioned decision in T. Anjanappa v. Somalingappa. In light of that law, it must be held that the Defendant No.1 has failed to prove that it has perfected title to the suit property by adverse possession.

Issue No.1 is accordingly answered against the Defendant No.1 and in favour of the Plaintiff.

D.M.H.P. Sales Ltd. v. New Howrah Transport Company, CS(OS) No. 1701/2003 7 IAs 10647, 13220 & 8848/2007 (13/08/2009), 2009(162) DLT 248: 2009(6) AD(Delhi) 721 [S. Muralidhar, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Averment by person claiming adverse possession — Scope — A person setting up the plea of adverse possession has to necessarily aver that such a plea is being set up against a person who is the valid title holder/owner of the premises in question — Civil Procedure Code, 1908 — Order 6 Rule 1 — Limitation Act, 1963 — Article 65.

T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543, Relied on.

D.M.H.P. Sales Ltd. v. New Howrah Transport Company, CS(OS) No. 1701/2003 7 IAs 10647, 13220 & 8848/2007 (13/08/2009), 2009(162) DLT 248: 2009(6) AD(Delhi) 721 [S. Muralidhar, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Proof of — Failure to establish twin requirements of possession and animus possidendi, effect — Suit property comprises of vacant plot of land acquired by `T’ on a long lease for 99 years — `T’ sold the land to plaintiff under a registered sale deed in 1973 — Since plaintiff was living in USA, taking advantage of his absence, defendant encroached the land and put up garages — Plea of defendant that he perfected the title to suit land by way of adverse possession — Lack of material particulars in written statement as to adverse possession defendants-appellants have simply asserted exclusive uninterrupted, open, continuous and unchallenged possession over the plot in dispute — Apart from possession, defendants have not alleged any animus to prescribe against the true owner of property — There is no assertion that defendants had held the property as owners openly and continuously in clear denial of everybody else’s ownership towards the same — Written statement, thus, fails to properly raise the plea of adverse possession — Plea is, in any case, tenuous and grossly deficient in particulars — No evidence as to when the defendants actually occupied the land and started prescribing against the owners — Twin requirements of possession and animus possidendi have not been established leave alone 12 years before the filing of the suit — It is also noteworthy that the defendants have not admittedly paid any property tax qua the suit property, as according to defendant No. 1 the property did not belong to him — DW 1 has even deposed that he was not sure whether the plaintiff was aware about the possession of the defendants over the suit premises — In the totality of the above circumstances, therefore, held, trial court was perfectly justified in taking view that plea of adverse possession raised by defendants had not been substantiated by them — There is no merit in this appeal — Limitation Act, 1963 — Article 65.

Mohan Singh Kohli v. Suhail Dutt[DB], RFA 563-64/2006 (06/12/2006), 2007(97) DRJ 83 [T.S. Thakur, J.: S.L. Bhayana, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Scope — Stray acts like cooking food for the guests in a marriage ceremony on a plot of land conveniently located adjacent to the house of defendants or filling up of pits or planting trees or construction of a temporary shed over the same would not constitute acts that can be termed as acts of adverse possession against the original owners — Limitation Act, 1963 — Article 65.

Mohan Singh Kohli v. Suhail Dutt[DB], RFA 563-64/2006 (06/12/2006), 2007(97) DRJ 83 [T.S. Thakur, J.: S.L. Bhayana, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Examination of plea of — Principles to be applied for, explained — Limitation Act, 1963 — Article 65.

S.M. Karim Vs. Mst. Bibi Sakina, AIR 1964 SC 1254, Annasaheb Bapusaheb Patil and Others Vs. Balwant @ Balasaheb Babusaheb Patil (dead) by LRs & heirs etc., AIR 1995 Supreme Court 895, Konda Lakshmana Bapuji Vs. Govt. of A.P. And Others, 2002(3) SCC 258, Karnataka Board of Wakf Vs. Government of India and Others, 2004(10) SCC 779, T. Anjanappa and Others Vs. Somalingappa and Another, 2006(7) SCC 570, Devi Charan & Another Vs. Ranpat Singh & Ors., 65 (1997) DLT 493, Harbans Kaur & Ors. Vs. Bhola Nath & Anr., 57 (1994) DLT 101, Wg. Cdr. (Retd.) R.N. Dawar Vs. Shri Ganga Saran Dhama, DRJ 1992 (24), Relied on.

HELD: 1) Onus to prove the question of title by adverse possession is on the party who make such a claim.

2) Mere long possession of the land is not enough. What is important is whether the possessor had the animus possidendi to hold the land adverse to the title of the true owner.

3) The period of limitation starts running from the date both actual possession and assertion of title are shown to exist.

4) The assertion of title adverse to the true owner must be clear and unequivocal, though not necessarily addressed to the real owner.

5) The party claiming adverse possession must prove that his possession is `nec vi, nec clam nec precario’.

6) The party claiming title by adverse possession must make clear averments to that effect and explain as to when he entered into the possession of the property and when the possession became adverse.

Mohan Singh Kohli v. Suhail Dutt[DB], RFA 563-64/2006 (06/12/2006), 2007(97) DRJ 83 [T.S. Thakur, J.: S.L. Bhayana, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Claim and implication of — Scope — Person in possession must claim the right against true owner — Adverse possession implies that it commenced in wrong and maintained against right — Limitation Act, 1963 — Article 65.

HELD: It must be adequate in continuity and publicity to the extent of showing that it is possession adverse to the competitor. It must be hostile and under a claim or colour of title. It must be actual, open, uninterrupted, notorious, exclusive and continuous and it must run over the entire statutory period of 12 years. Any person who bases his claim to title by adverse possession must therefore show by clear and unequivocal evidence that his possession was hostile to the real owner with the attributes of notoriety, exclusivity and continuity over the statutory period.

Mohan Singh Kohli v. Suhail Dutt[DB], RFA 563-64/2006 (06/12/2006), 2007(97) DRJ 83 [T.S. Thakur, J.: S.L. Bhayana, J.] <<LAWPACK DELHI HIGH COURT>>
Limitation Act, 1963 — Article 65 — Adverse Possession — Plea of, proof to defeat — No objection certificate issued by the plaintiff (owner) regarding new water connection, required by the defendant (alleged licencee) and that certificate used by the defendant in his application to the MCD for new water connection — Defeat defendant plea of owner by adverse possession — Adverse Possession — Plea of — Proof to defeat.

Tara Chand Jain v. Attar Chand Jain, RSA No. 86/1988 (07/10/2005), 2005(124) DLT 574 [J.P. Singh, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Ownership by way of adverse possession — Claim of, unsustainable — Proof of permissive possession available — Claim for ownership on the basis of adverse possession — Plaintiff claiming rights and interests in suit property on the basis of licenses issued to them by defendants — Failure of plaintiff even to state one instance in plaint which is adverse to interest of rightful owner — Plaintiff’s possession being permissive in nature, cannot claim ownership by adverse possession — Limitation Act, 1963 — Article 65 — Specific Relief Act, 1963 — Section 34.

HELD: Counsel appearing for the appellants submitted before us that since the suit was instituted by the plaintiffs pleading specific case of adverse possession, therefore, the learned Trial Court acted illegally and committed manifest error of law and fact in holding that the plaintiffs are licensees. The aforesaid plea which is taken by the appellants appears to be without any merit in view of the statements made in paragraph 19 of the plaint which deals with the cause of action of the suit. A bare perusal of the same would indicate that the appellant-plaintiffs are also claiming rights and interests in the suit property on the basis of licences issued to them by the defendants. According to them, they are in possession of the suit property on the basis of licences granted to them by the defendant-respondents. The said plaintiffs have failed even to state in the plaint any overt or hostile act to prove, establish and justify their stand that they are entitled to a decree of adverse possession.

In our considered opinion their possession being claimed to be permissive in nature they were rightly held not to have acquired ownership by adverse possession by the learned trial Court.

Subhash Market Association v. Municipal Corporation of Delhi[DB], RFA No. 522/2004 (16/12/2004), 2005(116) DLT 406: 2005(2) AD(Delhi) 13: 2005(79) DRJ 606 [Mukundakam Sharma, J.: Gita Mittal, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Ownership by way of adverse possession — Claim of, requirement for — Suit for declaration of ownership by Adverse Possession — For claiming ownership by way of adverse possession, it has to be necessarily proved and established that possession was wrongful as against rightful owner and such possession must be actual, physical, exclusive open and continuous — Limitation Act, 1963 — Article 65 — Specific Relief Act, 1963 — Section 34.

Subhash Market Association v. Municipal Corporation of Delhi[DB], RFA No. 522/2004 (16/12/2004), 2005(116) DLT 406: 2005(2) AD(Delhi) 13: 2005(79) DRJ 606 [Mukundakam Sharma, J.: Gita Mittal, J.] <<LAWPACK DELHI HIGH COURT>>
Civil Procedure Code, 1908 — Section 100 — Second appeal — Substantial question of law, whether raised, determination — Suit for possession — Plea of adverse possession — No cogent evidence to support the plea of adverse possession except house tax bills and water bills in the name of defendant — No misconstruction of documents — No substantial question of law arise — Appeal dismissed — Adverse possession — Proof of, insufficient proof.

Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs, 2000 SCC 708, Relied on.

HELD: Learned counsel for the appellant has urged that the learned trial court and the first appellate court have misconstrued the relevant documents filed on record and have not come to correct conclusion. That construction of documents is a substantial question of law which can be raised before the High Court in the second appeal. In support of his submissions he has placed reliance upon a Supreme Court decision in the case of Santakumari and others vs. Lakshmi Amma Janaki Amma, AIR 2000 SC 3009 wherein the Court held that the construction of documents under which claim to property is made is a substantial question of law. In my opinion, the appellant cannot draw any assistance from this authority because it has not been shown on record as to what were the documents of which construction was not correctly made by the trial court or the first appellate court. In the present case the entire defence of the petitioner-defendant rested on the plea of adverse possession based on certain record of the Municipal Corporation with regard to premises No.70-B in his name regarding payment of house-tax etc. This act of the defendant had in fact prompted the respondent to file the suit for possession. It is seen that the learned trial court on a consideration of the entire pleas and material brought on record returned a definite finding that the petitioner had failed to prove his adverse possession over the suit property and in my opinion rightly so. This finding was also based on earlier proceedings i.e. a suit filed by the respondent-plaintiff for permanent injunction against one of the brothers of the appellant-defendant and his two associates which was decreed on 15-2-1975. The petitioner-defendant failed to lead any cogent evidence of his being in possession of the suit property ever since 1970 and, therefore, the trial court was fully justified in not placing reliance on the house-tax and water tax bills raised by the Municipal Corporation in the name of the appellant-defendant for the period 1975-76, so as to uphold the plea of adverse possession of the defendant-respond

Having considered the matter in its entirety this Court is of the view that no substantial question of law is raised in this second appeal and no infirmity is seen in the concurrent findings of fact as recorded by the learned trial court and the first appellate court.

Saif UI Rehman v. Akbar Ali, RSA No. 152/2001 (09/10/2001), 2002(2) AD(Delhi) 500 [R.C. Jain, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Inference of — Adverse possession designates a possession in opposition to the true title and real owner and implies that it commenced in wrong and is maintained against right.

Nandram v. Union of India[DB], LPA No. 365/2000 (23/11/2000), 2000(88) DLT 592: 2001(1) AD(Delhi) 434: 2001(57) DRJ 54 [Arijit Pasayat, C.J.: D.K. Jain, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Burden of proof — On whom lie — Obviously a person, who claims acquisition of title by adverse possession, has to establish it.

Nandram v. Union of India[DB], LPA No. 365/2000 (23/11/2000), 2000(88) DLT 592: 2001(1) AD(Delhi) 434: 2001(57) DRJ 54 [Arijit Pasayat, C.J.: D.K. Jain, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Proof for — In order to constitute adverse possession there must be actual possession of a person claiming as a right by himself or by person deriving title from him to prove title to the land by adverse possession — It is not sufficient to show that some acts of possession have been done — Possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation.

HELD: The possession acquired must be adequate in continuity, in publicity and in existence to show that it is adverse to the owner. In other words the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation. The possession required must be nec vi nec clam nec precario. Possession does not become adverse when the intention to hold adversely is wanting. Permissive possession and hostile animus operate in conceptually different fields. Adverse possession designates a possession in opposition to the true title and real owner and implies that it commenced in wrong and is maintained against right. (See Alexander v. Polk, 39 Miss 755). It is possession inconsistent with and in denial of the right of the landlord to the premises. (See Hoses v. Lovegrove, (1952) 1 TLR 1324). A person taking the plea of adverse possession must allege and prove the date when his possession become adverse so that the starting point of limitation against the party against whom such plea is claimed can be calculated. As long possession does not mean adverse possession, a mere allegation that the party was in uninterrupted possession for more than 12 years or that the party claiming it has acquired absolute title are vague allegations from which plea of adverse possession cannot be founded (See S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254).

Nandram v. Union of India[DB], LPA No. 365/2000 (23/11/2000), 2000(88) DLT 592: 2001(1) AD(Delhi) 434: 2001(57) DRJ 54 [Arijit Pasayat, C.J.: D.K. Jain, J.] <<LAWPACK DELHI HIGH COURT>>
Civil Procedure Code, 1908 — Order 39 Rules 4, 2 & 1 — Injunction — Vacation of, no prima facie case — Injunction restraining the defendants from transferring, alienating, parting with or disposing off or collecting rent or in any way interfering with the property — Irrevocable General Power of Attorney on which heavy reliance has been placed is not a registered document — It should not be read in evidence — However, even if the document is looked into, it most significantly shows that the property belongs to defendant No. 1 — It demolishes the stance that it is an HUF property — Plea of adverse possession is mala fide and cannot be sustained since necessary pleadings have not been made — For the plea of adverse possession it must be clearly stated that the plaintiff’s possession was hostile to that of the real owner, i.e. defendant No. 1 — Date on which adverse possession commences should also be stated — These pleadings are wholly absent — Most of the property is in the possession of the tenants — Held, no prima facie case in favour of plaintiff — Ex parte ad interim injunction recalled — Adverse possession — Claim of, pleading, contents of.

HELD: In the first place the irrevocable General Power of Attorney on which heavy reliance has been placed is not a registered document. It should not be read in evidence. However, even if the document is looked into, it most significantly shows that the property belongs to defendant No. 1. It demolishes the stance that it is an HUF property. For whatever reason the plaintiff may have decided to settle in Delhi, this document undoubtedly facilitated the maintenance and preservation of the property in suit. The fact that the rents were to be paid to defendant No. 1 as maintenance, or that the original of the sale deeds are in the possession of the plaintiff, would not further his case. Most importantly, the plaintiff must come out with a clear and unequivocal case. It has also been noticed above that three different cases have been stated in respect of the suit property. Learned Counsel for the plaintiff has submitted that it is open to the plaintiff to adopt alternative pleas, but this proposition cannot be stretched so far as to permit the taking of mutually destructive pleas. If the special rights, and/or ownership is to be claimed by the plaintiff through a General Power of Attorney executed by the defendant No. 1, he cannot claim that it is HUF property. I shall only refer to the documents filed by the defendants which show that at no point of time had any of the parties treated the property as HUF property. The plea that the plaintiff has become the owner by adverse possession keeping in view the fact that the plaintiff is the son of defendant No. 1, cannot also be appreciated. Where equitable relief is prayed for, the least that is to be expected is that the plaintiff must approach the Court with clean hands. The plea of adverse possession is mala fide and cannot be sustained since necessary pleadings have not been made. For the plea of adverse possession it must be clearly stated that the plaintiff’s possession was hostile to that of the real owner, i.e. defendant No. 1. The date on which adverse possession commences should also be stated. These pleadings are wholly absent. Thereafter it has been pleaded that it is an HUF property. There is not even an iota of evidence in support of this contention. On the contrary there is an overwhelming and almost unimpeachable documentation as proof of the fact that the property belonged solely to defendant No. 1. Since there is a filial relationship between the parties, it is insignificant that the title deeds are held by the plaintiff. Even in respect of this plea the necessary pleadings pertaining to the manner in which the plaintiff may have acquired special and particular rights to this property, if it is taken to be an HUF property, has not been pleaded.

For all these reasons I am unable to be convinced that even a prima facie case has been established by the plaintiff. Most of the property is in the possession of the tenants and in respect of one godown, the documents which are on record show that rent is being paid by the plaintiff to defendant No. 1 by rejecting the application the possession of the property is not going to be automatically disturbed. Defendant No. 1, and any of the other parties claiming under or together with him, are still not entitled to disturb the possession except by due process of law. In these circumstances the ex parte ad interim injunction granted on 14.6.2000 is recalled and the application is dismissed. Keeping in perspective the relationship between parties I am desisting from imposing any costs.

Suresh Chand Jain v. Siri Chand Jain, IA 6058/2000 in S. No. 1241/2000 (22/08/2000), 2000(87) DLT 828: 2000(7) AD(Delhi) 324: 2000(56) DRJ 631 [Vikramajit Sen, J.] <<LAWPACK DELHI HIGH COURT>>
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 — Sections 5 & 2(e) — Unauthorised occupation — Plea of adverse possession — Unsustainability on facts — Limitation Act — Applicability — Court exercising extraordinary jurisdiction under Article 226 shall not be ordinarily inclined to interfere with conclusions of facts — Limitation Act, 1963 — Applicability of — Not applicable to special Acts — Constitution of India — Article 226 — Adverse possession — Unsustainability.

HELD: It transpires from the record that there are different set of persons named as unauthorised occupants/squatters in the notices issued by the Collector, Delhi in the year 1956-57 and that too on some portion of land in E-Block, Kirti Nagar and not on specific plot No. E-51/52. Both the Courts below have also recorded the finding that unauthorised occupants have neither proved any linkage/relationship nor produced any document to prove their continued step by step occupation in the said plot. In that view of the matter and the same being conclusions and findings of fact, the contention of acquisition of right by way of adverse possession has no merit. Besides, even if it is presumed and held that such unauthorised occupation came to the notice of the Rehabilitation Housing Corporation at least on 1. 11.1956 when such notice was issued to some of the petitioners and if the computation is made from the said date, it cannot be said that the petitioners have acquired any right in the property in question by way of adverse possession, for a civil proceeding was initiated in the Court of Civil Judge with a relief for ordering eviction of the occupants, in 1966.

Besides, the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is a special Act and it has provided for a period of limitation wherever it is necessary and, therefore, the provisions of the Limitation Act as such cannot be made applicable to such a special Act.

The Estate Officer as also the Additional District Judge have given cogent reasons for arriving at their conclusions that the land in question is public premises and that the petitioners are in unauthorised occupation of the same. The Additional District Judge after perusal of the records has held that the proceedings were initiated as against the petitioners under the provisions of the ‘Act’ of 1971 in accordance with law and that there was no infirmity in conducting the said proceedings and the order passed by the Estate Officer was valid and legal. The said conclusions have become conclusions of facts and this Court exercising extraordinary jurisdiction under Article 226 shall not be ordinarily inclined to interfere with such conclusions of facts.

Nandram v. Union of India, CW 5117, 5152, 5154-66/1997 (21/07/2000), 2000(87) DLT 234: 2000(7) AD(Delhi) 1164: 2000(56) DRJ 662 [Mukundakam Sharma, J.] <<LAWPACK DELHI HIGH COURT>>
Transfer of Property Act, 1882 — Section 108(q) — Determination of lease by efflux of time — Non-delivering of possession to landlord — Effect — Duty of lessee to restore possession to the lessor — In case of not delivering up possession to landlord, he can not say that he is not a tenant — Unless the landlord actually put into possession, premises to remain under tenancy — Presumption always in favour of continuity of tenancy and against becoming an adverse possession of tenant — Adverse Possession — Non-delivery of possession to landlord by efflux of time.

HELD: Section 108(q) provides that on the determination of the lease it shall be the duty of the lessee to restore possession to the lessor.

In law there is presumption in favour of the continuity of the tenancy and against the possession of the tenant becoming adverse. Furthermore, the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the letter’s title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord.

A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant – be he one at sufferance or be h one from month-to-month. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance.

Mec India Pvt. Ltd. v. Inder Maira, CRP 102/1999 (28/05/1999), 1999(80) DLT 679 [C.K. Mahajan, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse possession — Destructive and inconsistent plea — Disputed property — True owner — Defendant’s claim — Having purchased the property from the plaintiff — Effect — Plea of adverse possession not sustainable? — Held, No — Defences are mutually destructive and inconsistent — Claim for ownership by adverse possession not established.

HELD: The defendants claim themselves to be the owners in possession over the disputed property on the round of their having purchased the same from the plaintiff for a consideration of Rs. 15,500/- (vide their reply notice dated October 12, 1984, Ex. P22 to the notice from the plaintiff). How the defendants can now be allowed to plead to the contrary that they have become owners of the disputed property by adverse possession. It has already been observed above that a person who traces his possession to a lawful title can never become an owner by adverse possession. How a person, who claims himself to be the true owner of a particular property, can claim to be the owner of the same by adverse possession. Admittedly, `adverse possession’ means a hostile assertion which is expressly and impliedly in denial of the title of the true owner. Thus the defendants cannot be permitted to blow hot and could in the same breath.

For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession. In the instant case the defendants have put forward defences which are irreconcilable and mutually destructive and inconsistent with one another.

I am of the view that the defendants have miserably failed to substantiate their claim of ownership by adverse possession.

Rama Kanta Jain v. M.S. Jain, Suit 1740/1984 (24/03/1999), 1999 AIR(Del) 281: 1999(3) AD(Delhi) 32: 1999 RLR 39(N): 1999(1) ILR(Del) 232: 1999(50) DRJ 232: 1999(1) RCR 566: 1999(2) RCR(Civil) 685 [Mohd. Shamim, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse possession — Proof for — Requirement of — Discussed.

HELD: A party who claims title by adverse possession to a property belonging to someone else, it is a well established principle of law, must show the following:-

(i) He has been in occupation of the disputed property for more than 12 years without interruption;

(ii) his possession was to the exclusion of all the persons; and

(iii) the said possession must be open and hostile to the true owner.

(iv) The other classical requirement of adverse possession is that it should be nec vi nec clam nec precario i.e., for the perfection of title the possession required must be adequate in continuity, in publicity and extent.

Rama Kanta Jain v. M.S. Jain, Suit 1740/1984 (24/03/1999), 1999 AIR(Del) 281: 1999(3) AD(Delhi) 32: 1999 RLR 39(N): 1999(1) ILR(Del) 232: 1999(50) DRJ 232: 1999(1) RCR 566: 1999(2) RCR(Civil) 685 [Mohd. Shamim, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Meaning of — A hostile possession whereby the title of true owner is denied in adverse possession.

Adverse possession implies a hostile possession whereby the title of the true owner is denied. There is a consensus of opinion amongst all the High Courts with regard to the ingredients which a party in adverse possession over a property belonging to another must prove in order to claim title on the basis of the same.

(a) He must show that he has been in continuous possession over a particular property for more than 12 years, without a break and without interruption.

(b) His possession was to the exclusion of all the other persons.

(c) Possession was of such a nature that it involved the exercise of rights so irreconcilable with that of the true owner as to afford him an opportunity to dispute that possession during the 12 years when he was in the process of perfecting his title.

(d) Adverse possession must have commenced in wrong and maintained against the right.

(e) It must be open and hostile to the true owner.

(f) Possession must be nec vi, nec clam nec precario i.e. for the perfection of title it must be adequate in continuity, in publicity and extent.

Harbans Kaur v. Bhola Nath, RSA 227/1973 (12/12/1994), 1995(57) DLT 101: 1995(1) AD(Delhi) 272: 1995(32) DRJ 262: 1995(2) RRR 526 [Mohd. Shamim, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Determination of — Proof of payment of House Tax — A period of 12 years not elapsing between the date of earliest House Tax receipt and the filing of suit — Plea of adverse possession is not available.

Exts. DW9/1 To Ex. DW9/33 are the house tax bills and receipts. They are for the period from 1956 onwards. Ex. DW7/1 is a copy of the R.R. for the year 1957. The said receipts go to show that Shri H.S. Sethi deceased has been paying the house tax in respect of the disputed property since 1956. It has thus been vehemently argued by Mr. Sistani that the factum of the payment of the house tax in respect of the disputes property goes a long way to show and prove that the appellants were in occupation over the disputed property in their own right as an owner thereof and their title is adverse to that of the real owner and has thus matured into a claim by adverse possession. The contention of the learned counsel, I feel, is devoid of any force. Admittedly, the suit in the instant case was instituted on April 2, 1968. The oldest document in connection therewith is a notice under Section 65 of the Punjab Municipal Act dated November 13, 1956. Thus the statutory period of 12 years if computed from the said date would come to November 13, 1968. I have already observed above that the suit was instituted on April 2, 1968. Thus the suit is within time and the said documents are of no avail to the appellants. The mere fact that the appellants were paying the house tax does not lead us any where. Whosoever is in occupation of a house is liable to pay house tax and water tax. It thus cannot be inferred therefrom that the possessor/occupier of a house is claiming adversely to the true owner.

Harbans Kaur v. Bhola Nath, RSA 227/1973 (12/12/1994), 1995(57) DLT 101: 1995(1) AD(Delhi) 272: 1995(32) DRJ 262: 1995(2) RRR 526 [Mohd. Shamim, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Determination of — Defendants being joint owners of the property continuing possession of the property till occupied by the plaintiffs in an unauthorised manner — No proof to claim adverse possession for a continued period of 12 years — Plea unsustainable in law

Truth-If you shut up truth and bury it under the ground, it will but grow, and gather to itself such explosive power that the day it bursts it will blow up everything in its way.

Harbans Kaur v. Bhola Nath, RSA 227/1973 (12/12/1994), 1995(57) DLT 101: 1995(1) AD(Delhi) 272: 1995(32) DRJ 262: 1995(2) RRR 526 [Mohd. Shamim, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Burden of proof — Nature of — The burden is a heavy one — No Court can accept the plea of acquisition of the title by adverse possession casually, merely on the oral evidence that a particular person was in possession of the land in question.

Harbans Kaur v. Bhola Nath, RSA 227/1973 (12/12/1994), 1995(57) DLT 101: 1995(1) AD(Delhi) 272: 1995(32) DRJ 262: 1995(2) RRR 526 [Mohd. Shamim, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Plea of — By one of the co-owners against the other — Requires more exactness as possession by one of the joint owners is possession by all — There must be open assertion of hostile title besides exclusive possession.

HELD: Between co-sharers, possession of one co-sharer is in law the possession of all co-shares. Therefore, to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. There must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other.

In the case of co-owners, the test of ouster is more exacting than in the case of strangers. The reason is that in the case of co-owners the possession of one is held to be for the benefit of all.

The respondent having prima facie established himself to be a co-owner and the pleas of ouster and adverse possession having not been established prima facie, the impugned order cannot be faulted more so when the respondent had approached the court without much loss of time. A co-owner has not in law any right to appropriate land to himself out of a joint land against the consent of his co-owner.

P. Lakshmi Reddy Vs. L. Lakshmi Reddy, AIR 1957 SC 314, Mohammad Bagar Vs. Naimun-Nisa Bibi, AIR 1956 SC 548, Shambhu Prasad Vs. Mst. Phool Kumari, AIR 1971 SC 1337, Prescott Vs. Novero (1827), 4 Masen 326, Hardit Singh Vs. Gurmukh Singh, AIR 1918 PC 1, Lachneswar Singh Vs. Monowar Hossain, ILR 19 Cal. 253(PC), Cor Vs. Appurhamy, (1912) A.C. 230, Midnapur Co. Vs. Naresh Narain, AIR 1924 PC 144 & Prabhoo Vs. Soodh Nath, AIR 1978 All 178 relied.

I. Gouri Vs. C.H. Ibrahim, AIR 1980 Kerala 94, Chhedi Lal Vs. Chhotey Lal, AIR 1951 Allahabad 199, Najjukhan Vs. Imtiaz-ud-Din (1895), ILR 18 All. 115 & Shadi Vs. Anup Singh (1890), ILR 12 All 436 referred.

Karam Singh v. Nathu Singh, FAO 99/1991 (08/08/1994), 1994(55) DLT 420: 1994(3) AD(Delhi) 1193: 1995 RLR 6(N): 1994(30) DRJ 462: 1994(3) CCC 168: 1994(3) RRR 704 [Jaspal Singh, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Claim of — Plaintiff coming into possession of property as paid servant — Jamabandi, Khasra Girdwari and electricity connection etc. showing defendants as owners — Mere assertion of possession by plaintiff without mentioning time and event when it became adverse — Not sufficient.

HELD: Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contract. To gain the complete idea of possession, one must consider:

i) the person possessing,

ii) the things possessed and,

iii) the persons excluded from possession.

A man may hold an object without claiming any interest therein for himself. A servant though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing.

Midnapur Co. Vs. Naresh Narain, 1924 PC 144, The East India Hotels Vs. Syndicate Bank, JT 1991(6) SC 112 & M.C. Chockalingam Vs. V. Manickavasagam, 1974(1) SCC 48 relied.

Sham Lal v. Rajinder Kumar, IA 3655, 5710/1993 (05/08/1994), 1994(3) AD(Delhi) 1035: 1994(30) DRJ 596 [R.C. Lahoti, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Plea of — Must be specifically pleaded and proved — No date given when the possession became adverse to owner — Animus to advance claim to title also lacking — Plea must fail.

HELD: Onus is on the defendant to prove that he had been in adverse possession against the plaintiff continuously for more than 12 years immediately before the filing of the suit. Once the plaintiff establishes his title, onus will be on the party who sets up a title by adverse possession. When the plaintiff and the defendant are close relatives, strong evidence of hostile possession has to be there. Long possession is not necessarily an evidence of adverse possession. To claim title by way of adverse possession animus possidendi must be evidenced by acceptable evidence. Thus, a person who intends to perfect his title by adverse possession must necessarily have animus having a bona fide belief that property belongs to him and as such he has been in possession continuously for a period of 12 years and more. A defendant cannot perfect his title by adverse possession when he is under a bona fide belief that the property belongs to him and as such he had been in possession as necessary animus is lacking for perfecting the title by adverse possession.

We do not think that licence to occupy the suit property was granted by the plaintiff only to Mela Ram. It had to be for Mela Ram and his family members. After the death of Mela Ram his family members would continue to be licensees of the plaintiff. In any case the grant of licence could be implied as well from the conduct of the grantor. This is Section 54 of the Indian Easement Act, 1882. It is not that immediately on the death of Mela Ram plaintiff asked his family members to vacate and hand over possession of the suit property to him. Defendants have not pleaded of such date. Rather, as we have noted above, they denied that any demand was made by the plaintiff requiring them to quit. Thus, even if licence was not expressly granted it was clear implied from the conduct of the parties. As a matter of fact, in the cross-examination of the plaintiff, the defendants have set up a case that after defendant No.1 (Jagmohan Lal) joined service he obtained a rent receipt from the plaintiff with a view to submit the same in his office.

Merely because the defendants had been in possession of the property for over 30 years would not mean that their possession had become adverse to the plaintiff. This has never been and could not be pleaded in the facts of the present case. Their stand had been that the allotment of two tenements were also the members. It was also pleased that there was an oral partition or family settlement under which the suit property came to their share. As to when this oral partition or family settlement took place, there is no evidence. We have to accept the stand of the plaintiff that Mela Ram and his family members were allowed to occupy the suit property as they had no other place to stay and, thus, a licence was granted to them to occupy the suit property.

Jagmohan Lal v. Harkishan Lal[DB], RFA 123/1986 (09/03/1994), 1994(1) AD(Delhi) 1136: 1994(29) DRJ 123 [D.P. Wadhwa, J.: D.K. Jain, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Property declared as evacuee property — Declared as non evacuee property in the year 1954 — Appellant continuing in possession thereafter — Deposing that he asserted himself to be the owner — Mere fact that he was not paying property tax — Immaterial — Suit filed after more then 12 years from 1954 — Barred by limitation.

Lal Chand v. Begum Jan (deceased) Mohd. Ahmed, RSA 40/1977 (17/08/1993), 1993(27) DRJ 394 [P.K. Bahri, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Plea of — Must be raised and asserted in written statement — Failure to assert adverse possession — Suit for recovery of possession on the basis of title is not barred by limitation.

HELD: In Delhi Cloth & General Mills Co. Ltd. V. Ganga Charan (D) thr. Lrs, 1979 Rajdhani Law Reporter 401. T.P.S. Chawla, J. as his lordship then was, in a very lucid analytical judgment, had referred to the conflict of law apparently prevailing in judgments of different High Courts with regard to the point of limitation as was envisaged in Articles 142 and 144 of the Limitation Act 1908 which were similar to Articles 64 and 65 of the old Limitation Act. It was held that ownership is the largest right or bundle of right relating to immovable property known to law. In includes right of possession and usually to go together in inhere in same person and the only defence to a suit by an owner for recovery of possession of immovable property is adverse possession. Further elaborating, the learned Judge has held that there are three conceivable classes of suits for possession of immovable property, (i) a suit based on previous possession filed within six months of dispossession’; (ii) a suit based on previous possession filed after six months from the date of the dispossession; and (iii) a suit based on title.

Referring to the provisions of Specific Relief Act, it was observed that if a suit is brought within six months of dispossession, the question of title becomes immaterial and the suit has to be decreed if dispossession is even by real owner within six months. In case falling in the second category, if suit is brought on the basis of previous possession, which is commonly known as possessory title, the suit has to be brought within 12 years of such dispossession and without even proving the actual title of the property, the suit can be decreed for possession against a third person if possessory title is established and while referring to third kind of suit, it was held that the suit for possession on the basis of title can be brought at any time and limitation does not commence to run against the title holder till the adverse possession is established in accordance with law against the said title holder. So, it was held that suit on the basis of possessory title would be governed by Article 142 of the old Act and if the suit is based on title, only Article 144 would apply.

The Supreme Court in Gaya Parshad Dikshit V. Dr. Nirmal Chander, AIR 1984 SC 930 held that under Article 65, in a suit for possession by the owner, the question of limitation does not arise till the plea of adverse possession is establish, It was also held that mere fact that on termination of a licence, the licensee continues in possession does not lead to any inference that the licensee has set up any hostile title or adverse possession.

So, it is evident that on passing of the decree for eviction against the tenant, which became inexecutable on account of execution being not filed within limitation, does not by itself lead to any inference that the possession of the respondents in the property in question had become adverse to the appellant. It is also settled principle of law that a plea of adverse possession must be taken in the written statement and then only court could give any finding whether the title had passed to the person in possession of the property by adverse possession.

In the present case, no such plea at all has been raised by the defendants, so question of defendants becoming owner of the property in question by adverse possession did not arise. The suit of the plaintiff could not be considered to be barred by limitation as the suit is based on title. So, the Additional District Judge was not right legally in dismissing the suit on the ground that the suit was barred by limitation.

Liaq Mohammad v. Delhi Development Authority, RSA 89/1989 (05/08/1993), 1993 RLR 557: 1993(3) CCC 663 [P.K. Bahri, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — The claimant must categorically prove the possession to be adverse.

HELD: A person who claims title to a property by adverse possession must definitely allege and prove as to how and when the adverse possession commenced and what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. The mere fact that he was in uninterrupted possession for several years and in that way he acquired absolute right and title is not enough to raise such a plea. Long possession is not necessarily adverse possession.

Under Articles 64 and 65 of the Limitation Act long possession is not necessarily adverse possession.

R.N. Dawar v. Ganga Saran Dhama, Suit 466/1982 (24/09/1992), 1993 AIR(Del) 19: 1994 RLR 60(N): 1992(24) DRJ 532: 1992(4) DL 213: 1993(1) RCR 140: 1993(1) RRR 189 [S.C. Jain, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Plea of adverse possession — Set up as a defence, effect — When plea of adverse possession is set up as a defence, it is for the party who sets up such a plea to establish that his position is open and hostile to that of the owner and the onus in such cases is quite heavy and should be properly discharged by the party-setting up such a plea — No deductive logic should be applied by Courts in such a light heartedly fashion — Limitation Act, 1963 — Article 65.

Mahant Bachan Dass v. Ved Prakash Gupta, RSA 37-38/1989 (18/08/1992), 1992(48) DLT 131: 1992(24) DRJ 217: 1993(1) DL 119: 1992(2) RCJ 445: 1992(2) RCR 552: 1993(1) RRR 429 [J.K. Mehra, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Plea of, proof for — Plea of adverse possession cannot be accepted by any Court except on consideration of evidence led before it and it is obligatory for the party taking up a plea of adverse possession to prove and establish their right to the same — Suit for permanent and mandatory injunction — Respondent/defendant occupied a room and admittedly paying the rent — Dumping of house-hold articles by respondent in verandah — Respondent setting-up the defence of adverse possession — Trial court framing a preliminary issue as to the maintainability of the suit in its form — Without recording evidence trial court dismissing the suit — Respondent having adverse possession of schedule property — Effect — Whether the decision of trial court is perversed on the question of adverse possession? Yes — Limitation Act, 1963 — Article 65.

HELD: As the trial Court has done simply because the date of encroachment is not mentioned that by itself does not amount to proof of the plea of adverse possession set up by the opposite party and the trial Court has returned a totally perverse finding on this question. This could not have been done in the absence of evidence.

Mahant Bachan Dass v. Ved Prakash Gupta, RSA 37-38/1989 (18/08/1992), 1992(48) DLT 131: 1992(24) DRJ 217: 1993(1) DL 119: 1992(2) RCJ 445: 1992(2) RCR 552: 1993(1) RRR 429 [J.K. Mehra, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Expression — Adverse possession — Meaning thereof — Forcible possession — Not an adverse possession as understood in law.

HELD: The expression `adverse possession’ is misleading.

It is not true to say that it is an “adverse possession” as understood in law. “Adverse possession” designates a possession in opposition to the true title and real owner, and implies that it commenced in wrong and is maintained against right. Alexander v. Polk, 39 Miss.755). It must be for a period of twelve years before the possession ripens into ownership.

Delhi Sainik Co-operative House Building Society Ltd. v. Financial Commissioner, Delhi Administratio[DB], LPA 358/1971 (03/09/1982), 1983 AIR(Del) 81: 1983(23) DLT 109: 1983(1) ILR(Del) 151 [Avadh Behari Rohatgi, J.: Leila Seth, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse possession — Adverse possession and non-execution of decree — Distinction between — Adverse possession designates possession in opposition to true title of real owner and implies that it commenced in wrong and maintained against right — Non- execution of decree bars the execution of remedy.

HELD: It has no prescriptive property as adverse possession has. In adverse possession there is acquisition of title to immovable property by prescription under Section 27 of the Limitation Act.

Union of India v. Syed Shah Nasir Hussain[DB], LPA 3477/1971 (15/02/1982), 1982 AIR(Del) 300: 1982 RLR 232: 1982(1) ILR(Del) 969: 1982(3) DRJ 187 [Avadh Behari Rohatgi, J.: Leila Seth, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse possession — Permissive possession or adverse possession — Determination — Interest of person who did not signed the Panchayatnama seeking to create permanent lease, devolved upon his son and his son being alive signed the panchayatnama and co-defendant is certainly bound by the Panchayatnama — Can not claim adverse possession as their possession being permissive on land — Limitation Act, 1963 — Article 65.

HELD: Harphool was a defendant in the original suit and he did not sign the panchayatnama. But now Harphool has died. His son Jaidev is alive. He was also co-defendant. Therefore, the mere fact that Harphool had not signed the panchayat-nama is not of much consequence. Jaidev had certainly signed the panchayat-nama. The interest of Harphool devolved upon Jaidev. Jaidev is certainly bound by the document. His possession is permissive on the land.

Mangal Singh v. Tek Ram, RSA 219, 223/1968 (19/05/1975), 1975 AIR(Del) 267: 1975 RLR 119(N): 1976(2) ILR(Del) 684 [Avadh Behari Rohatgi, J.] <<LAWPACK DELHI HIGH COURT>>
Adverse Possession — Merely because the plot is a vacant plot in a thickly populated area and defendant was in habit of intermittently using it, doctrine that possession follows title in case of vacant plots not attracted.

HELD: Merely because this plot is a vacant plot in a thickly populated area and that the defendant was in the habit of intermittently using it, that doctrine that possession follows title in the case of vacant plots is not attracted, cannot be accepted because on principles. I find no distinction in the case of a vacant plot in a thickly populated area and a Vacant plot in a village or a thinly populated area as is presumably postulated by the counsel. In our country, it is well known that, as a matter of habit, people do utilise various vacant plots whether they are in thickly populated area or in a thinly populated area and this kind of user is ordinarily not objected to as it is based on assumed consent, but it cannot possibly form the basis of a plea of title or adverse possession or ever of possession conferring right.

Nank Chand v. Om Parkash Gupta, RSA 177D/1965 (10/01/1968), 1968(4) DLT 234 [I.D. Dua, C.J.] <<LAWPACK DELHI HIGH COURT>>
Delhi Rent Control Act, 1958 — Section 2(l) — Tenant — Determination — Self destructive plea — Adverse possession — Plea of — Respondent owner of the property — Sale certificate — Issued by the Rehabilitation Authorities — Eviction suit — Claim by defendant/appellant as tenant and ownership by adverse possession — Mutual destructive plea — Effect — Held, plea of defendant to be tenant cannot be accepted in such circumstances — Adverse possession — Self-destructive plea of.

HELD: A self serving assertion cannot be regarded as proving the factum of possession of the appellants. The receipts produced by the appellants of payment of damages were for the period of 1967-68 and thereafter. The learned Sub-Judge, therefore, rightly concluded on the basis of material on record and the evidence of the respondent that the appellants had failed to prove their lawful occupation prior to auction of the plot.

There is no evidence on record to show any allotment in favour of the appellants in the file by which the appellants could claim tenancy rights. The appellants had simply claimed to be in occupation of the premises. The appellants also simply denied the ownership of the respondent. The pleas of tenancy and that of having acquired ownership by adverse possession are mutually destructive of each other. As discussed earlier, the amendment application deserves dismissal and is dismissed. The appeal also has not merit and is dismissed.

S. Pritam Singh v. Ram Narain Vij[DB], RFA 244/1973/1900.09.98, 1999(77) DLT 76: 1999(1) AD(Delhi) 785 [Arun Kumar, J.: Manmohan Sarin, J.] <<LAWPACK DELHI HIGH COURT>>

Entry Filed under: Judgements