Pawan Mehra & Ors vs Paras Ram & Ors

VALMIKI J. MEHTA, J (ORAL)

RFA No. 602/2006

This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (‘CPC’) is filed by the plaintiff in the suit impugning the

Judgment of the Trial Court dated 22.07.2006 by which the trial court has dismissed the suit for possession and mesne profits filed by the

appellant/plaintiff and against the respondent/defendant with respect to the suit property comprising of one room, one finished kitchen, bathroom and

latrine in the property no. WZ-436, Village Tihar, Hari Nagar, New Delhi, situated in erstwhile revenue record as Khasra Nos. 2066 and 2078/2, and

as shown in Red in the Site Plan/Ex PW1/2. Â

The facts of the case are that the appellant/plaintiff pleaded that he is the co-owner of the suit property, and since the respondent/defendant was a

trespasser in the suit property, hence the respondent/defendant was asked to vacate by serving a Legal Notice dated 22.11.2002. However, the

respondent/defendant failed to vacate the suit property hence the subject suit for possession was filed in which mesne profits were also claimed at Rs.

2,000/- per month from three years prior to the filing of the suit.

The respondent/defendant contested the suit by filing written statement. It was pleaded by the respondent/defendant that he was the owner of the

suit property because he had purchased it from Sh. Ganesh. It was also pleaded by the respondent/defendant that he had become owner of the suit

property on account of adverse possession.

The only issue which has to be examined by this Court, is the sole issue which was argued on behalf of the respondent/defendant, and which is as

to whether respondent/defendant has become the owner of the suit property by adverse possession. So as to complete the narration, I would like to

add that the trial court, as per the detailed discussion in paras 9 to 11 of the impugned judgment, has held that respondent/defendant is the co-owner of

the suit property, and this detailed discussion includes reference to the Revenue Record Ex.PW4/1 to PW4/4, showing the name of the

appellant/plaintiff and his predecessors-in-interest as coowners of the suit property. Â Reference is also made in these paras to earlier litigation for

partition between the co-owners and the decree passed in this regard dated 09.03.1987 has been proved and exhibited as Ex.PW5/11. Â

Adverse possession in law has to be proved and established by a person who claims to be in adverse possession showing nec vi, nec clam, nec

precario i.e. open, hostile and continuous possession. Mere possession is not adverse possession and unless and until possession is accompanied by an

assertion of title, hostile to the true owner, the possession does not become adverse possession. Article 65 of the Limitation Act, 1963, states that

where a person files a suit for possession of an immovable property claiming title, a cause of action accrues and limitation for filing a suit for

possession based on title commences when the defendant is shown to have pleaded and proved assertion of a title adverse to that of the plaintiff.

Therefore, the point of time of assertion of hostile title is the specific point of time, arising of the cause of action for claiming ownership by adverse

possession of 12 years by a defendant in a suit. Â

Let us examine in this case as to whether there is assertion of any hostile title by the respondent/defendant against the appellant/plaintiff or any

other co-owner or against the world at large. I may note that it is not in dispute that the respondent/defendant is said to be in possession of the suit

property since around 1986-87 and the subject suit has been filed on 20.01.2003. However, the issue requiring decision is not length of possession but

length of possession of at least 12 years accompanied by an assertion of hostile title in favour of the respondent/defendant. Â

In my opinion, the respondent/defendant has miserably failed to prove that he has been in adverse possession of the suit property. The trial court

has also committed a gross illegality in holding that the respondent/defendant is in adverse possession by simply referring to the factum of possession

of the suit property by the respondent/defendant since 1986/1987. As already stated above, possession is not automatically adverse possession. It is a

indubitable position appearing on record that though respondent/defendant claimed ownership of the suit property by purchase from one Mr. Ganesh,

however, how Mr. Ganesh became the owner, what are the documents by which Mr. Ganesh became owner, what are the documents which Mr.

Ganesh executed in favour of the respondent/defendant etc., have thus not been filed and proved by the respondent/defendant. Therefore, there is no

document to show thaty the claim of ownership of the respondent/defendant on account of having purchased of the suit property by from Mr. Ganesh.

Thus, the respondent/defendant cannot claim possession through title on account of purchase of the suit property from Mr. Ganesh allegedly claimed

to be from the year 1975. It is seen that respondent/defendant has not led any evidence of writing to any public authority, be it the Municipal

Corporation for the purpose of mutation or any other aspect of property tax issue or the income tax authority or the police etc. establishing that the

respondent/defendant was the owner of the suit property. Not only there is no assertion of title existing in the respondent/defendant by stating so to

any public authority, respondent/defendant has also never issued any notice to the appellant/plaintiff or any other co-owner claiming ownership title in

the suit property by having purchased the same from Mr. Ganesh or how and in what other manner the ownership title is asserted as against the

appellant/plaintiff or the other co-owners. Rights in valuable immovable properties cannot be lost by self-serving statements and ipse dixit of assertion

of title and therefore this Court rejects the argument and evidence led on behalf of the respondent/defendant that he has become the owner by

adverse possession by assertion of a hostile title. Proving of assertion of a hostile title is to the satisfaction of the court on preponderance of

probabilities, and in the opinion of this Court, in the facts of the present case, the oral averments of the respondent/defendant will not be sufficient for

holding that the respondent/defendant has discharged the onus of proof upon him with respect to assertion of a hostile title. It is, therefore, held that

the appellant/plaintiff is a co-owner and hence entitled to possession of the suit property and that the respondent/defendant has failed to prove that he

was/is in possession of the suit property as owner by adverse possession. Â

Now, this Court will have to determine what are the mesne profits which have to be paid by the respondent/defendant to the appellant/plaintiff.

Whereas the appellant/plaintiff has claimed mesne profits at Rs.2,000/- per month with respect to the suit property which as stated above comprises of

one room, one kitchen, one bathroom and one latrine in Hari Nagar, Delhi, the respondent/defendant in the cross-examination has put a suggestion to

the plaintiff as PW-1 that rate of rent of the area for the premisessuch as the suit premises would only be Rs. 300/- per month. Therefore, we have a

starting figure of Rs. 300/- per month being the rate of rent of the suit premises. The issue is whether mesne profits should be granted only at Rs.

300/- per month or at Rs. 2,000/- per month as claimed by the appellant/plaintiff or at any other different figure.

In my opinion, this Court is entitled to take judicial notice of the rents prevailing in Delhi in the year 2003 with respect to the suit property which is

situated in Hari Nagar, New Delhi, and in the year 2003, this Court would like to draw judicial presumption in the facts of the present case that the suit

property will have rental value of at least Rs. 1,000/- per month. Therefore, the appellant/plaintiff will be entitled to mesne profits at rate of Rs. 1,000/-

per month from three years prior to filing of the suit on 20.01.2003 and till the filing of the suit, and pendente lite and future thereafter at Rs.1,000/- per

month which shall be increased by 15% every three years in view of Section 26 of the Delhi Rent Control Act, 1958 which allows a landlord to

increase rent by 15% every three years. Increase of rent by 15% every three years will be compounded in the sense that each increase of rent of

15% will be of 15% over the last rate of mesne profits/rent which has been determined with the first 15% increase commencing from the date of filing

of the suit and which is three years after the first end of three years arrears period towards the claim of the mesne profits. The appellant/plaintiff is

also entitled to interest on mesne profits @ 6% per annum simple in view of definition of mesne profits contained in Section 2(12) CPC which provides

that mesne profits will include interest on mesne profits. The appellant/plaintiff is also held entitled to costs of the suit and the present appeal. Â

Accordingly, this appeal is allowed. Suit of the appellant/plaintiff is decreed with costs for possession of the suit property comprising of one room,

kitchen, bathroom and latrine situated in WZ-346, Village Tihar, Hari Nagar, Delhi and as shown in red colour in the site plan Ex.PW1/2 alongwith a

decree for mesne profits as stated in the preceding para. Decree sheet be prepared. Â

RFA No. 601/2006

The facts of this case are identical to the facts of RFA No. 602/2006 with the difference that the seller to the respondent/defendant in the present

case is alleged to be one Sh. Laxman. Therefore, this appeal is allowed and the suit of the appellant/plaintiff is decreed with costs for possession of

the suit property comprising of one room, kitchen, bathroom and latrine situated in WZ-346, Village Tihar, Hari Nagar, Delhi and as shown in red

colour in the site plan in this suit Ex.PW1/2. A decree for mesne profits is also passed at the rate of Rs. 1000/- per month commencing from three

years prior to the suit with 15% compounded increase after every three with first increase of 15% being from the date of filing of the suit. The

appellant/plaintiff will also be entitled to interest @6% per annum till payment on the mesne profits payable from the end of each month. Decree sheet

be prepared. Â

CONT. CAS (C) No. 864/2012

 Disposed of as not pressed. Â