* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA NO. 74 OF 2005
Date of Decision: 11th January, 2012
# POONAM SHARMA ..... Appellant
Through: Mr. Vinod Malhotra, Advocate
Versus
$ M/S PREM NATH ANAND BUILDCON Pvt. Ltd. & Ors. ……..Respondents
(as per amended memo of parties dated 12.05.08)
^Through: Mr. Harish Malhotra, Sr. Advocate
with Mr. R.K. Modi & Ms. Mala Goel, Advocates for respondents No.1 and 2.
CORAM:
*HON'BLE MR. JUSTICE P.K.BHASIN
JUDGEMENT
P.K.BHASIN, J:
This appeal is at the instance of one of the two unsuccessful defendants in a suit for possession and damages/mesne profits for unauthorized use and occupation of a portion of property no. 16/849, Joshi Road, Karol Bagh, New Delhi (in short „suit property‟) filed against her and her mother-in-law (respondent no. 3 herein as per the amended memo of parties dated 12.5.2008.
2. Daulat Ram Public Trust (hereinafter referred to as „the plaintiff Trust‟) claimed to be the owner of the suit property and as per its case one Mr. Krishan Mohan during the relevant period was its President and Managing Trustee. He had allowed one Pramod Sharma, the deceased husband of the appellant herein, who was employed in a Company of Mr. Krishan Mohan and posted at Cochin and whose mother(who was defendant no.1 in the suit and now is respondent no.3 herein) was known to the wife of the said Mr. Krishan Mohan, to occupy the suit property on compassionate grounds till he could get accommodation elsewhere in Delhi after he had been transferred to Delhi. He was inducted in the suit property sometime in the year 1977 as a licensee only and nothing was agreed to be charged from him. Appellant‟s husband, however, did not vacate the suit property thereafter despite having been asked to vacate the same many times by the plaintiff and not only did he not vacate the suit property he also got a suit filed against the plaintiff by his mother on the allegations that she was a tenant in the suit property. However, that suit was dismissed. Appellant‟s husband had died on 26.10.1990 leaving behind the appellant herein and his children, who continued to occupy the suit property. As per the averments in the plaint, appellant‟s mother-in-law in fact had never occupied the suit property though she had been staying there with her son for short periods. As per the further case of the plaintiff the appellant was also asked many times to vacate the suit property after the death of her husband but she also did not vacate the same and continued to remain in unauthorized occupation thereof like her deceased husband. It was pleaded in the plaint that after the death of her husband she had no right to occupy the suit property but she did not surrender the possession and not only that, she had also brought some of her relatives into the suit property. On these averments the suit for possession came to be filed on 27.01.2003.
3. Respondent no.3(defendant no. 1 in the suit), Mrs. Chandrika Sharma, however, did not contest the suit while the appellant –defendant had filed her written statement and contested the suit primarily on the ground that she had become the owner of the suit property by adverse possession while pleading that her deceased husband was permitted by Smt. Krishan Mohan to occupy the suit property. She further pleaded that after his death on 26.10.90 she had been continuously in possession of the suit property and since no suit was instituted against her within a period of twelve years of her hostile possession which period expired on 26.10.2002, the plaintiff‟s right in respect of the suit property stood extinguished and the suit was barred by limitation under Article 65 of the Limitation Act.
4. Learned trial Court had framed the following issues arising out of the pleadings for trial:-
“1. Whether the suit of the plaintiff is bad for misjoinder of parties? OPD
2. Whether the suit of the plaintiff is barred by limitation? OPD
3. Whether the plaintiff is entitled to possession as claimed? OPP
4. Whether the plaintiff is entitled to damages/mesne profit @ Rs. 10,000/- p.m. as claimed? OPP
5. Whether the defendant no. 2 has perfected her title by virtue of adverse possession? OPD-2
6. Relief.”
5. The plaintiff and appellant-defendant adduced evidence, oral as well as documentary, in support of their respective stands.
6. The learned trial Court after examining the evidence adduced by the parties gave its judgment on 26th October, 2004 rejecting the plea of adverse possession taken by the appellant-defendant and passed a decree of possession in favour of the plaintiff and against the appellant-defendant as well as her mother-in-law and also for damages at the rate of Rs. 3,000/- per month from 1.01.03 till delivery of possession of suit property by them to the plaintiff. Feeling aggrieved, the appellant filed the present appeal. Her mother-in-law, however, did not challenge the judgment of the trial Court.
7. In the appeal the appellant-defendant had initially impleaded the plaintiff Trust as respondent no. 1 while her mother-in-law was impleaded as respondent no. 2. During the pendency of the appeal, the plaintiff-Trust sold property no. 16/849, which included the portion in occupation of the appellant, to two Companies and thereafter those two Companies moved an application under Order 22 Rule 10 CPC and they were substituted in place of the plaintiff Trust as respondents no. 1 and 2 vide order dated 27.04.2007.
8. Arguments were then advanced by the counsel for the appellant-defendant and the two purchasers.
9. It was submitted by the learned counsel for the appellant that appellant‟s husband was in possession of the suit property and in his lifetime had not vacated the same despite having been asked by the plaintiff to vacate and no steps were taken by plaintiff Trust to get him evicted and after his death the appellant had also not vacated and continued living in the suit property despite having been asked by the plaintiff to vacate and then also no steps were taken to have her evicted for a period more than 12 years and therefore, she had herself become the owner of the suit property by adverse possession.
10. On the other hand, learned senior counsel for the respondents no. 1 & 2, purchasers of the suit property, argued that merely by holding on to the possession for many years the appellant could not become owner by adverse possession as she had neither pleaded nor adduced any evidence as to where she had claimed title hostile to the plaintiff Trust and in what manner.
11. After having gone through the impugned judgment, pleadings of the parties, evidence adduced during the trial and submissions made by both the counsel before me I find myself in complete agreement with the submission of the learned senior counsel for respondents no. 1 & 2. It was only pleaded by the appellant in her written statement that she had been in continuous and uninterrupted possession of the suit property and vaguely pleaded that her possession was hostile and the plaintiff Trust had not brought suit for more than 12 years so she had acquired ownership by adverse possession. She did not plead as to when she claimed title in herself and how. Nor did she say so in her evidence. So, all that is shown by her is that she was in continuous possession of the suit property from 26.10.1990 onwards as a trespasser. In a catena of judgments of the Supreme Court it has been held that mere long possession, even for more than twelve years, of some property by a licensee after revocation of the license will not confer ownership in that person by adverse possession unless at some particular point of time that person had claimed a title in himself while denying the title of the true owner. Reference can be made here to some of such judgments. In “Thakur Kishan Singh v. Arvind Kumar”, (1994) 6 SCC 591, the Supreme Court had observed as follows:
“5. As regards adverse possession, it was not disputed even by the trial court that the appellant entered into possession over the land in dispute under a licence from the respondent for purposes of brick-kiln. The possession thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse. A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. Apart from it, the appellate court has gone into detail and after considering the evidence on record found it as a fact that the possession of the appellant was not adverse. The learned counsel, despite strenuous argument, could not demolish the finding of adverse possession. Attempt was made to rely on the evidence led on behalf of the parties and the evidence of the Commissioner who prepared the map. We are afraid that such an exercise is not permissible even in second appeal, what to say of the jurisdiction exercised by this Court under Article 136 of the Constitution. Further, we do not find that the appellant has suffered any injustice which requires to be remedied by this Court.”
12. In “State of Punjab v. Brig. Sukhjit Singh”, (1993) 3 SCC 459, the Supreme Court had observed as follows:
13 ……….….…………………………………………Permissive possession, however long, cannot by itself be said to have become hostile by a “long lapse of time”………………………………..” “
13. In an earlier judgment Supreme Court had in “Gaya Parshad Dikshit v. Dr. Nirmal Chander and Another”, (1984) 2 SCC 286 held as follows:
“1. We have heard the learned counsel on behalf of the appellant and after hearing him and perusing the judgment of the High Court, we find ourselves wholly in agreement with the view taken by the High Court that mere termination of the licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. Here in the present case there is nothing to show that at any time after termination of his licence by Dr Rama Shanker or by the first respondent the appellant asserted hostile title in himself. The High Court was, therefore, right in taking the view that the appellant had not established any title by adverse possession and in that view of the matter, the suit of the first respondent for recovery of possession of the premises from the appellant was not barred under Article 65 which is the only article of the Limitation Act, 1963 applicable in the present case. We accordingly confirm the judgment of the High Court and dismiss the appeal.”
(emphasis laid)
14. The aforesaid legal position has been recently also reiterated by the Supreme Court in the case of “L.N. Aswathama v. P. Prakash”, (2009) 13 SCC 229. The relevant observations are to be found in para 17 of the judgment and the same are reproduced below:
“17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi…………….”.
15. As noticed already, the appellant-defendant had simply pleaded that firstly her deceased husband had remained in possession of the suit property after he had been asked to vacate the suit property and after his death she had also refused to surrender possession and still the suit to get the possession from her was instituted after more than twelve years from the date of the death of her husband and so she had become the owner of the suit property by adverse possession. That was, however, not sufficient pleading to claim ownership by way of adverse possession. Even in evidence she did not prove that she had on some particular date claimed title in the suit property hostile to the plaintiff Trust and to its knowledge by doing some overt act. Therefore, the learned trial Court was fully justified in coming to the conclusion that the suit was not time barred and the appellant-defendant had not acquired ownership by adverse possession.
16. No other point was urged by the counsel for the appellant.
17. This appeal, therefore, is dismissed with costs.
P.K. BHASIN,J
