Judgment:
1. Shri R.N. Dawar, plaintiff herein, filed this suit for possession, injunction and damages against Ganga Saran Dhama, hereinafter called the defendant No. 1 on the allegations that he is owner of plot of land measuring 240 sq. yards in khasra No. 634 in Dalhai area, Bhola Nath Nagar, between Babu Ram School and Sarwan Talkies.
2. As per the averments made in the plaint the said plot of Sand was purchased by the plaintiff vide registered sale deed No. 1165 vol. 2657 on pages 183 to 185 dated 1-5-1951 from Parbhu Dayal, who was the owner In possession of the said plot of land. The plaintiff purchased this plot of land with a view to construct a house thereon but being in service outside Delhi he could not raise the construction. In December, 1981 when he visited the said plot of land, to his surprise he found there a single storey house constructed by the defendant. The plaintiff being the exclusive owner of the said plot of land is entitled to its possession and the defendant has no title, right or interest in the said piece of land and he has illegally and wrongly raised the construction over it, thereforee, thedefendant is liable to be evicted from the said plot of land and the plaintiff is also entitled to damages for the use and occupation of the plot of land belonging to him which he estimates at Rs. 10,000/-. Besides the relief of possession and damages for use and occupation, the relief of permanent injunction has also been claimed restraining the defendant, his servants and agents from raising further construction on the said plot and from alienating or encumbering the said plot of land in favor of any one.
3. Despite a legal notice dated 15-2-1982, the defendant did not meet the demand of the plaintiff which necessitated him to file the present suit.
4. The defendant contested the suit and filed written statement pleading, inter alia, that his wife Smt. Bhagwanti Devi is the owner of the said plot of land and she is a necessary party and the suit is bad for non-joinder of the necessary parties.
5. On merits, it is stated that khasra No. 634 in Dalhai area comprises of vast area extending over 1000 sq yards and the plaintiff has not been able to allege in the plaint which particular piece of land he had purchased of which he claims himself to be the owner. The ownership of the plaintiff on the said piece of land has been denied. As per the averments made in the written statement this plot of land was owned by one Shri Pat Mal son of Shri Nanak. Pat Mal sold it to Pritam Singh elder brother of the defendant for Rs. 3300/-. After the marriage of the defendant in 1966 this plot of land was transferred by Pritam Singh in the name of the defendant's wife and thereafter a Chappar type house was constructed by the wife of the defendant and after a couple of years regular construction was raised on that piece of land. This house belongs to Bhagwanti Devi wife of the defendant and the house is also assessed to house tax for the last eight years and her name is also mutated in the record of the Corporation. The possession of the property is with the defendant's wife for the last 15 years and she is residing there with her husband as owner. The defendant and his wife are using this property as their own without any interference or disturbance fromanybody. They have acquired absolute right,title and interest by way of adverse possession. Otherwise also she is the real owner ofthis piece of land having been gifted to her byher brother-in-law Pritam Singh. It is deniedthat the plaintiff is entitled to a decree forpossession or for damages or injunction asclaimed by him in the plaint.
6. In the replication, the averments made in the plaint have been reiterated and those of the written statement have been controverter. It is stated that the plot of land on which the defendant has put up the illegal construction belongs to the plaintiff. It is denied that Pat Mal was owner of the property who sold it to Pritam Singh who is turn gifted it to Bhagwanti Devi wife of the defendant. The purported transfer of the plot is fraudulent, illegal, and is not binding upon the plaintiff. Pritam Singh had no valid right, title or interest in the suit property at any time. At all material time the plaintiff was and is owner of the suit land. The alleged construction on the land is illegal and is not binding upon the plaintiff. It has been denied that the defendant or his wife became owner by way of adverse possession. The plaintiff came to know about the unauthorised construction in this plot of land in December, 1981 when he visited this plot of land and thereafter he tried to approach the defendant but the defendant evaded meeting the plaintiff and ultimately a legal notice dated 15-2-1982 was sent to the defendant asking him to hand over vacant, possession of the land but to no effect. The plaintiff was not in the knowledge of the illegal construction till December, 1981 and it was only in December, 1981 when he visited the plot of land he found the unauthorised construction on the said plot of land. He immediately filed this suit in 1982. The question of adverse possession on the said land does not arise.
7. On the pleadings of the parties the following issues were framed :
1. Whether the plaintiff is the owner of suit plot measuring 240 sq yards in khasra No. 634 in Delhi area, Bhola Nath Nagar, Shahdara, Delhi, as described in para 1 of the plaint?
2. Whether the defendant made constructions on the said plot of land without the consent and knowledge of the plaintiff and if so to what effect?
3. If the above issues are held in favor of the plaintiff, is he entitled to possession of the suit plot after directing the defendant to remove the structures made thereon?
4. If issue No. 1 is held in favor of the plaintiff, is the defendant owner of the suit property by adverse possession or otherwise?
5. If again issue No. 1 is held in favor of the, plaintiff, is the plaintiff entitled to any damages for use and occupation by the defendant and if so to what amount and for what period.
6. Relief.
ISSUES 1 AND 4
8. These issues are interlinked and hence discussed together. In order to prove his ownership of the plot of land, the plaintiff has examined himself as PW 1 and Ramesh Chand Patwari, Halka Shahdara as PW 2 and produced on record the sale deed Ex. PW 1/5, site plans Exs. PW 1/6 and PW 1/7 with respect to the suit land besides earlier sale deeds of this plot of land Exs. PW 1/8 and PW 1/9 in favor of the predecessors of the vendor. He has deposed on oath that in May, 1951 he purchased this plot of land from one Parbhu Dayal vide sale deed registered with the Sub Registrar as document No. 1165 Vol. No. 2657 on pages 183 to 185 dated 13-5-1951. This plot of land was out of a vast plot of land and it was a sub divided plot. Ex PW 1/7 depicts the bigger plot, out of which this plot was sold to him. PW 1/6 is the site plan of the plot purchased by him. Both these plans were also registered along with the sale deed. According to him, before purchasing this plot he had seen the same and in fact, it was a vast plot of land out of which he was to buy 240 sq yards. After execution of the sale deed he had gone to the plot many a time and this plot of land was near the Valmiki temple and on the other side was a school. Exs. PW 1/8, PW 1/9 are earlier sale deeds with respect of this plot and these documents werehanded over to him at the time of execution of the sale deed in his favor. Possession of this plot of land was taken over by his father through whom this transaction was arrived at, as he was posted in the Indian Air Force at the relevant time.
9. Learned counsel for the defendant argued that the identity of the plot in dispute is not established. The plaintiff has not been able to establish that it is this plot of land which he had purchased vide sale deed Ex PW 1/5. According to the learned counsel, the plaintiff himself had admitted that he himself did not go to take possession of the plot in dispute. According to the plaintiff himself there is discrepancy in the description of the plot in plans Exs. PW 1/6 and PW 1/7 inasmuch as the length of the plot on the eastern side is 47.5 feet and on the western side is 45.5 feet while in the sale deed it is shown conversely on the eastern side as 45.5 feet and on the western side as 47.5 feet. The learned counsel also pointed out that a Local Commissioner was appointed to visit the suit land who after inspecting the same submitted his report Ex P/LC mentioning that it is difficult to ascertain whether the construction of the house is on the plot of the plaintiff or not. He also attached a plan of the plot in question which is Ex PW 1/11. As per his measurements the length has been shown as 46'.2' on one side and 46'7' on the other. According to the learned counsel the identity of the plot on which the construction raised by the defendant exists has not been established by the Local Commissioner.
10. According to the counsel for the defendant, this plot of land on which construction has been raised was owned by one Shri Patmal son of Shri Nanak and Shri Patmal sold this land to Pritam Singh for a consideration of Rs. 3300/-. This sale was in the nature of mortgage as Patmal did not pay the mortgage amount and Pritam Singh became absolute owner of the plot of land. When defendant No. 1 was married to defendant No. 2, this plot of land was transferred by Pritam Singh to defendant No. 2 in the same year i.e. 1966. There after a Chapper type house was constructed in 1966 itself and a couple of years later regularconstruction was put up there. This property is assessed to house tax and in the municipal record the possession of the defendant No. 2 is recorded for the last 15 years, where she has been residing with her husband and also treated it as their own property and as such they have acquired absolute right and title therein by way of adverse possession also. According to the counsel for the defendant, the plaintiff has no right and title over this plot of land and in case he had any he has lost his right on account of adverse possession of the defendants for the last fifteen years.
11. Persons can speak lie but the documents cannot. Ex. PW1/5 is the registered sale deed by which the plaintiff had purchased a piece of land measuring 240 sq yards from Parbhu Dayal son of Ganga Ram for consideration of Rs. 720/-. The ownership of Prabhu Dayal stands proved by earlier sale deeds Exs. PW 1/8 and PW 1/9. This plot of land was carved out of a bigger plot of land in khasra No. 634 in Dalhai area Bhola Nath Nagar as has been shown in the site plan Ex. PW1/7. No doubt, there is a slight discrepancy in the description of the plot inasmuch as in plan Ex PW 1 /6 the length of this plot on the eastern side is shown as 47.5 feet and on the western side is 45.5 feet while in the sale deed it is shown conversely on the eastern side it is 45.5 feet and on the western side it is 47.5 feet but this discrepancy is not sufficient to discard the sale deed Ex PW 1/5. The area of this plot as mentioned in the sale deed as well as in the site plan is the same. It is well settled that in such cases where map differs, the term of the grant must prevail. The right to property must be expressed in the title and when so expressed will not be limited by the map. The report of the Local Commissioner also does not help the defendant in rebutting the sale deed Ex. PW 1/5. According to him it is difficult to ascertain as to whether the construction is on the plot of the land in question or not. He could not have given the definite opinion because the plot in dispute is a part of Khasra No. 634 out of which several plots of land including this plot were carved out and he did not measure the entire Khasra No. 634 and the other plots carved out of it. The site planprepared by him on cursory look supports the claim of the plaintiff to some extent.
12. The plea of the defendant that this plot of land belonged to Pritam Singh, elder brother of defendant No. 1 who gifted the same to defendant No. 2 is not worth reliance, It has not been shown on record that this piece of land ever belonged to Patmal, who allegedly mortgaged the same with Pritam Singh for Rs. 3300/-. No sale deed or mortgage deed has been produced on file. Had there been any mortgage the same should have been by a registered document. Only a bahi entry is not sufficient to prove that Patmal was the owner of this land who mortgaged it with Pritam Singh and thereafter Pritam Singh became its owner being a mortgagee. Even if it is presumed as correct that Pritam Singh got this and from Patmal as alleged it is not proved that defendant No. 2 became owner by way of gift from Pritam Singh. Under Section 123 of the Transfer of Property Act, a gift of immoveable property which is not registered is bad in law and. cannot pass any title to the donee. Any oral, gift of immoveable property cannot be made in view of the provisions of Section 123 of the Transfer of Property Act. Mere delivery of possession without written instrument cannot confer any title. The plea of the defendants that defendant No. 2 of this plot of land became owner by virtue of the gift from Pritam Singh is not tenable. I reject the same.
13. Regarding the plea of adverse possession, it is settled law that 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.
14. In this case, the defendants have taken this plea of adverse possession in the written statement alleging that they have been in exclusive and undisturbed possession of theproperty for the last fifteen years and they have been using it openly and as of right. Whether these allegations are sufficient to constitute adverse possession of the defendants is to be seen on the basis of evidence which has come on record. DW1 Ganga Saran defendant No. 1, who is husband of defendant No. 2 stated that disputed plot of land falls in khasra No. 634/10 Dalhai mohalla. Khasra No. 634 consists of about 134 bighas. The suit plot forms part of khasra NO.634/10 which is 1/10th of Khasra No. 634. According to him the plot of land is in his possession. It measures 240 sq yards and He had constructed two storeyed house on this plot. In the record of M.C.D. this house has been mutated in the name of his wife defendant No. 2 and is assessed to house tax since 1974. His wife pays the house tax and municipal number 1512 Dulhai Mohalla has been given to it. He has proved house tax receipts Exs. DW 1 / 2 to DW 1 / 4. In 1976-77, electric connection was obtained in the house and he proved the electric bills Exs. DW 1/6 and DW 1 / 7. According to him, before filing the suit neither the plaintiff nor anybody else claimed possession or ownership of this plot. He is in possession of the plot since 1964 continuously and thereafter he constructed the house in 1970. In his cross-examination he stated that a Kothari was constructed by him in the year 1969 and regular construction was started in 1971 which continued slowly till 1986 when a double storeyed house was built. He was a constable in Delhi Police since 1966. DW 2 Pritam Singh, who is brother of DW 1, has not stated anything about the adverse possession of the defendants on the suit land. He had only stated about making the oral gift of this plot to defendant No. 2 about 23/24 years ago. DW 3 Shiv Raj Singh is inspector in M.C.D. According to him Smt. Bhagwati Devi has been shown to be owner of house No. 1512, Bhola Nath Nagar. House tax was levied for the first time in 1974. In his cross-examination he stated that Smt. Bhagwati herself has not applied for assessing the house to house tax and she had not submitted any document of title of the house. According to him, the house tax is levied in two ways i) when the owner shows that documents oftitle; ii) when the person present in the property claims to be the owner of that property. DW 4 Sukhbir Singh has not stated anything about the adverse possession of the defendants on this plot of land. Defendant No. 2 has not been examined to show her adverse possession on the suit land though in the written statement she has been claimed to be the owner of this plot of land on two grounds i.e. by way of oral gift from Pritam Singh, her brother-in-law and by way of adverse possession. She would have been the best witness to depose about her ownership on the said plot of land in either of the two ways. The plaintiff who appeared as PW 1 stated that at the time he purchased this plot of land he was working in the Indian Air Force and was away from Delhi. He retired on 26-1-1976, According to him, in 1971 he had occasion to go to this plot of land when he had come to Delhi on his posting. He found that some digging was going on for raising a boundary wall and he reported the matter to the police. He proved a copy of that letter Ex.PW 1/1. This letter is dated 29-7-72. Ex. PW 1/2 is another letter sent by him to the police. It is dated 18-9-1972. After 1972,. he visited this plot in 1981 and at that time he found that a building had been constructed on his plot of land. He got issued a legal notice to defendant No. 1, copy of which is Ex.PW 1/3, which was received back with the remark 'avoids to lake delivery'. The registered cover is Ex.PW 1/4. He tried to contact defendant No. 1 but was unable to do so. He was told by the neighbour that defendant No. 1 was police constable.
15. From the evidence on record, it is not at all established that the possession of the defendants became adverse to the plaintiff at any time conferring ownership to them. The house tax receipt and bill/ receipt of electricity are alleged to be from 1974 onwards. The construction is alleged to have been raised as per defendant No. 1 only from 1971 to 1986. For the first time when plaintiff came to know that some digging was going on at the suit plot for the purpose of building a boundary wall he immediately made complaints to various authorities and legal notice was got sent and filed this suit on 5-4-82. All these facts do notshow the adverse possession either of the defendants or either of them. Under Articles 64 and 65 of the Limitation Act long possession is not necessarily adverse possession. This plea of adverse possession has also not been substantiated by the defendants and I, thereforee, reject the same. I decide issue No. 1 in favor of the plaintiff and issue No. 2 against the defendants.
Issue Nos. 2 and 3
16. These issues are interlinked and hence discussed together.
17. As per the case of the defendants, asput in the written statement filed by them, defendants have raised construction on the plot in dispute belonging to them. After the marriage of defendant No. 1 in 1966 this plot was transferred in the name of defendant No. 2 Smt. Bhagwati Devi by Pritam Singh brother of defendant No. 1. Thereafter a Chappar type house was constructed by defendant in that very year and a couple of years later regular construction was raised thereon. This plea of the defendants that they became the owners of the plot of land has not been accepted while deciding issues Nos. 1 and 4 meaning thereby that the construction raised on this plot of land is illegal and unauthorised. Even the construction is without getting the building plan sanctioned. He had not informed his Department (Delhi police) where he was working as constable that he or his wife were constructing a house.
18. The plaintiff who appeared as PW 1 deposed that he was in the Indian Air Force and in 1971 he had occasion to go to the suit plot when he had come to Delhi on posting. He found that some digging was going on for raising a boundary wall and he reported the matter to the police. He proved a copy of that letter Ex.PW 1 /1. This letter is dated 29-7-72. Ex.PW 1/2 dated 18-9-72 is another letter sent to the police. Both these letters show that in March, 1971 the plaintiff came to know about this fact and he immediately wrote to the SHO Police Station Shahdara to get the work stopped immediately and to get the encroachment removed and that his plot besafeguarded against future unauthorised occupation. He had also sent copies to M.C.D. with the request not to give sanction to any unauthorised person to raise construction on this plot. From this documentary and oral evidence, it is apparent that the plaintiff when came to know about the illegal occupation and illegal construction on this plot of land immediately took action in that very year i.e. 1971 by writing letter to the SHO Police Station concerned, MCD and Sub Registrar and to the Patwari Halka. It shows that the plaintiff was not the consenting party to the illegal construction on this plot of land. The second time when the plaintiff visited this plot in 1981, he found that a building had been constructed on this plot of land despite all his protests and requests. He sent a legal notice Ex. PW 1/3 delivery of which the defendants evaded to take. Thereafter he filed this suit for possession on 5-4-1982.
19. From the pleadings of the parties and evidence on record it is proved that the defendants made construction on this plot of land without the consent and knowledge of the plaintiff and the plaintiff is entitled to possession after directing the defendants to remove the structure made thereon. I, there fore, decide these issue in favor of the plaintiff and against the defendants.
Issue No. 5
20. The plaintiff has proved by way of documentary evidence that he purchased this plot in May, 1951 by registered sale deed Ex.PW 1/5 and that the defendants are in unauthorised occupation of this plot and raised illegal construction without the consent of the plaintiff as per the case of the defendants themselves they are using this plot of land since 1966. As per statement of PW 1 the rate of rent of the vacant land was Rs. 60/-or 70/- per month. There is no rebuttal of this evidence led by the plaintiff and 1, thereforee, hold that rent of the vacant land was Rs. 60/-per month. It is admitted by the counsel for the plaintiff that damages at this rate can only be claimed for the last three years preceding the date of filing of this suit. Claim prior to three years has become barred by time. This suit was filed on 5-4-1982. thereforee, theplaintiff is entitled to claim damages for use and occupation of this plot of land for three years prior to 5-4-82 i.e. Rs. 2160/-. I, thereforee, decide this issue in favor of the plaintiff and hold that the plaintiff is entitled to recover a sum of Rs. 2160/- by way of damages for the period of three years prior to 5-4-1982 the date of filing of the suit. This issue is decided accordingly.
Issue No. 6
21. In view of my finding on the above issue, I hereby pass a decree for possession of the plot of land measuring 240 sq yards in khasra No. 634 Dalhai area, Bhola Nath Nagar by demolishing the structure which has been raised on this plot now bearing municipal No. 1512 Dalhai Mohalla, Shahdara. Decree for recovery of Rs. 2160/- towards damages for use and occupation of the plot is also passed in favor of the plaintiff and against the defendant.
22. Cost of the suit are also allowed.
23. Order accordingly.