The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. 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.”
18. It is pertinent to note that in the present case, the defendant no. 1 has claimed rights in the suit property on the basis of being an owner. Reference may also be made to paragraph 3 at page no. 7 of the written statement, which is set out below:
“The entire consideration amount as well as stamp duty was paid by Smt. Krishna Gupta, Sapan Gupta wife and son of defendant no. 1 and further confirmed that since the Sale Deed or transfer documents cannot be executed and registered for the time being and as and when, this would be permissible, he would transfer the same in favour of Shri. Vijay Gupta and has also stated that the possession has been handed over to Shri. Vijay Gupta as a owner who is fully authorized to use it in any manner whatsoever and there will be no right to Late Ashok Kumar or his legal heirs in future. It is submitted that the Transfer Deed is incapable of execution even today and defendant reserve his right to file appropriate legal proceedings for transfer as and when the same would be permissible.”
19. In light of the dicta in Rama Kanta Jain (supra), the plea of adverse possession in the present case would not be available to the defendant no. 1, as he has claimed himself to be the owner in possession of the suit property.
In the High Court of Delhi at New Delhi
(Before Amit Bansal, J.)
Anu Gupta Vs Vijay Gupta and Others
CS(OS) 250/2020 and I.A. 11222/2021 (O-XXXIX R-2A of CPC)
Decided on August 8, 2022,
Citation: 2022 SCC OnLine Del 2391
The Judgment of the Court was delivered by
Amit Bansal, J.:—
I.A. 3994/2021 (O-XII R-6 of CPC)
1. The present application has been filed on behalf of the plaintiff under Order XII Rule 6 of the Civil Procedure Code, 1908 (CPC) seeking decree of possession in respect of ground, first and second floor of the property bearing No. WZ-36A/2, Krishna Park Extension, New Delhi-110018, on the basis of admissions made by the defendants in their written statements.
2. Notice in this application was issued on 16thMarch, 2021, and the reply has been filed on behalf of the defendant no. 1 on 9th April, 2021. The rejoinder has also been filed thereafter.
3. The case set up by the plaintiff in the plaint is that the suit property was owned by the plaintiff's husband Late Sh. Ashok Kumar by virtue of a Sale Deed dated 18th January, 1995. Late Sh. Ashok Kumar expired intestate on 27th February, 2015 and therefore, the plaintiff and her two children, Himanshu Gupta and Prachi Goel, became joint owners of the said property. Vide relinquishment deed dated 25th May, 2017, the children of the plaintiff relinquished their share in the aforesaid property in favour of the plaintiff. Therefore, the plaintiff became sole and absolute owner of the suit property and the property was duly mutated in her favour by the South Delhi Municipal Corporation vide letter dated 27th February, 2020.
4. In the year 2012, the defendant no. 1, who was the elder brother of Late Sh. Ashok Kumar, had been permitted to use the suit property as a permissive user. However, the defendant no. 1 has carried out illegal construction and demolition in the suit property in 2015 and opened a gymnasium in suit property in 2014/2015.
5. On the other hand, the case set up by the defendant no. 1 in his written statement is as under:
(i) The suit property as well as the adjoining property bearing No. WZ-36A/3, Krishna Park Extension, New Delhi-110018, owned by the defendant no. 1, are both one unit of land, and therefore, the demarcation would be required between the suit property and the said property, before a decree of the possession can be passed in favour of the plaintiff.
(ii) The defendant no. 1 has been in possession of the suit property since 2007 as an owner.
(iii) In the alternative, the defendant no. 1 has become the owner of the suit property on the basis of adverse possession.
(iv) The present suit is time barred on account of Section 27 of the Limitation Act, 1963, as the same has been filed after 12 years from the date when the defendant no. 1 took possession of the suit property i.e. from the year 2007.
(v) The suit is barred under Section 53A of the Transfer of Property Act, 1882 (TPA), as the defendant no. 1 is in possession in terms of a writing dated 28th September, 2009.
(vi) There is no admission made by the defendant no. 1 that would entitle the plaintiff to a decree under Order XII Rule 6 of the CPC.
6. The counsel for the plaintiff submits that even if the suit property has not been demarcated, a partial decree can be passed in terms of the site plan filed on behalf of the defendant no. 1. He further submits that the claim of the defendant no. 1 to be the owner of the suit property is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988. He states that the suit is not barred by limitation, as in terms of Article 65 of the Limitation Act, 1983, the limitation would only run from the date when the hostile possession has been claimed by the defendant no. 1. In the present case, the hostile possession has only been claimed by the defendant no. 1 at best from 2014, when a gymnasium was opened in the suit property.
7. As regards the defence taken under Section 53A of the TPA, it is submitted on behalf of the counsel for the plaintiff that the aforesaid defence can only be taken by the defendant no. 1 on the basis of a registered document. In the present case, since the writing dated 28th September, 2009 executed by Late Sh. Ashok Kumar is not a registered document, the defence available under Section 53A of the TPA would not be available to the defendant no. 1. Reliance in this regard is placed on the judgment of this Court in Uma Hada v. Sunil Gupta, 2021 SCC OnLine Del 3009.
8. As regards the defence of adverse possession, it is contended on behalf of the counsel for the plaintiff that the said defence would not be available to the defendant no. 1, as it is destructive of his main defence of being the owner of the suit property. Reliance is placed on the judgment of the Supreme Court in Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639 and the judgment of this Court in Rama Kanta Jain v. M.S. Jain, (1999) 50 DRJ 232.
9. I have heard the counsels for the parties and perused the record. Since strong reliance has been placed on behalf of the defendant no. 1 on the writing dated 28th September, 2009 issued by Late Sh. Ashok Kumar, it is important to refer to the same. The translated copy of the same is set out below:
“I, Ashok Kumar S/o Late Shri. B.R. Aggarwal states that the property WZ-36A/2, Krishna Park Extension, New Delhi-11 0018 was purchased by me with the help of my brother Viijay Gupta son of Late Shri. B.R. Aggarwal for which I paid of Rs. 1,50,000/- consideration amount and Rs. 12,000/towards stamp duty on my demand, my brother Vijay Gupta paid the said amount for purchase of the said property through his wife Krishna Gupta (Rs. 1,15,000/) and son Sapan Gupta (Rs. 56,000/-) total amount Rs. 1,71,000/-. I Ashok Kumar out of my voluntary desire giving the said property bearing no. WZ-36A/2, Krishna Park Extension, New Delhi-11 0018 to my brother Vijay Gupta. As now the registry are not allowed for Krishna Park Extension. Whenever registry would be allowed, I will transfer the property in the name of Vijay Gupta. From today onwards, Shri. Vijay Gupta shall be the owner of the entire property, he can use it in any manner whatsoever and me and my family members (legal heirs) shall have nothing to do with the said property in future. This my statement has been recorded with consent of both the brothers as an agreement. This writing has been done by my brother Vijay Gupta.”
10. In the aforesaid document, it has been recorded that i) The consideration for the purchase of the suit property was paid by the defendant no. 1 through his wife and son. ii) The defendant no. 1 shall be the owner of the suit property and subsequently the registry would be made in favour of the defendant no. 1. iii) The aforesaid writing has been written by the defendant no. 1.
11. Even though it has been stated in the writing that the ownership of the suit property has changed from Late Shri. Ashok Kumar Gupta to the defendant no. 1, the documents regarding the same would be executed and registered at a later point of time. In this regard, a reference may also be made to page number 8 of the written statement filed by the defendant no. 1, wherein the defendant no. 1 has sought to reserve his right to file appropriate legal proceedings for transfer of the suit property in his name as and when the same would be permissible. Though, the defendant no. 1 claims ownership of the suit property in terms of the said document, he is aware that the transfer of title in his favour shall take place only upon a registered transfer document being executed in his favour. This amounts to an acknowledgment of title of the plaintiff. The registered Sale Deed dated 18th January, 1995 in respect of the suit property, in the name of Late Sh. Ashok Kumar, has also been placed on record. Till the time there is another registered document executed in favour of the defendant no. 1, he cannot claim to be the owner of the suit property. This is also in terms of Section 4 of the Benami Transactions (Prohibition) Act, 1988, which is set out below:
“4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.”
12. The counsel for the plaintiff has placed reliance on the judgment of this Court in Uma Hada (supra) to contend that the benefit under section 53A of the TPA can only be taken if there is a registered document in relation to transfer of the immovable property. The relevant observations of the Court in Uma Hada (supra) are set out below:
“22. Reference may also be had to Section 17 (1A) of the Registration Act which reads as follows:—
“17. Documents of which registration is compulsory.—
(1) ….
(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and, if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53-A.”
23. This court in the case of Arun Kumar Tandon v. Akash Telecom Pvt. Ltd., (supra) held as follows:
“6. It is absolutely clear that in order to give benefits of Section 53A of Transfer of Property Act, the document relied upon must be a registered document. Any unregistered document cannot be looked into by the court and cannot be relied upon or taken into evidence in view of Sections 17(1A) read with Section 49 of the Registration Act. Thus, benefit of Section 53A could have been given to the respondent if and only if the alleged Agreement to Sell cum receipt satisfied the provisions of Section 17(1)A of the Registration Act. Section 35 of the Indian Stamp Act gives a mandatory direction to the courts that no instrument chargeable with duty shall be admitted in evidence for any purpose or shall be acted upon by any public officer unless such instrument is duly stamped. Article 23 A provides that where contract is for transfer of immovable property in the nature of part performance in any Union Territory under Section 53A, it attracts 90 per cent of the duty as that of a conveyance deed. Thus, the alleged Agreement to Sell could not have been looked into by the court for any purpose, contrary to the mandate of the statute as given in Section 35 of the Indian Stamp Act.
xxx
10. I, therefore, consider that the trial court could not have given benefit of Section 53A of Transfer of Property Act to respondent under any circumstances even if a suit for specific performance filed by respondent No. 2 was pending. Pendency of a suit for specific performance would not have debarred the court below from looking into the document relied upon by the respondent and the effect of the document as to whether such a document can even be looked into by the court for any purpose whatsoever. When the document itself could not be looked into, the question of giving benefit to respondent on the basis of this document would not arise. It was obligatory on the court below to be aware of the law and to apply the law as it stood. Section 17(1)A of the Registration Act and Section 35 of the Indian Stamp Act were very much there on the statute book. No plea can be taken that these sections were not brought to the notice of the court. Like any other citizen of this country, Judges are also supposed to know the law and apply correct law. Benefit of Section 53A could not have been given to the respondents of a document which could not be looked into. If this document is not looked into, the respondents continue to be in possession unauthorisedly, after expiry of the lease agreement and the respondents were liable to pay the arrears of rent and monthly rent during pendency of the suit to the petitioner as reflected by the lease agreement.”
24. Hence to seek relief under Section 53A of the Transfer of Property Act, the documents relied upon to evidence an Agreement to Sell must be registered. The so called receipts which are relied upon by the defendant to claim an agreement to sell dated 08.09.2019 and 05.03.2020 are unregistered documents. The defendant cannot rely upon the same to take any advantage of Section 53A of the Transfer of Property Act. There is no merit in the said plea raised by the defendant.”
13. To similar effect is the judgment of the Division Bench of this Court in Pawandeep Singh v. Gurdeep Singh Virdi, 2019 SCC OnLine Del 9495.
14. The aforesaid observations are clearly applicable in the facts and circumstances of the present case. Admittedly, the document on the basis of which the possession is claimed, i.e., the writing dated 28th September, 2009, is not a registered document. Therefore, the benefit of Section 53A of the TPA cannot be given to the defendant no. 1. Section 53A read with Section 17(1A) of the Registration Act, 1908, makes it abundantly clear that the benefit under Section 53A of the TPA can only be claimed on the basis of a registered document, if the said document has been executed after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001. In the present case, the writing was executed in 2009 and therefore, the registration under Section 17(1A) of the Registration Act, 1908 was mandatory in order for the party to claim benefit under Section 53A of the TPA. Accordingly, there is no merit in the aforesaid defence raised on behalf of the defendant no. 1.
15. With regard to the plea of adverse possession, it is a settled position of law that the defence of adverse possession can only be claimed if the same is not contradictory to the main defence taken by the defendant. In this regard, a reference may be made to the judgment of the Supreme Court in Mohan Lal (supra). In the said judgment, the appellant had raised two pleas in his defence, (i) the plea based on Section 53A of the TPA and (ii) on the basis of adverse possession. While considering the aforesaid, the Supreme Court held that the plea of adverse possession is inconsistent with the plea based on Section 53A of the TPA. The relevant observations of the Supreme Court are set out below:
“4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
16. In the present case also, the defendant no. 1 has taken a plea based on Section 53A of the TPA, which is inconsistent with the plea of adverse possession. Therefore, the plea of adverse possession would not be available to him.
17. The defence of adverse possession will not be available to a party if the said party is claiming to be the owner of the suit property. In this regard, reference may also be made to the judgment of the Coordinate Bench of this Court in Rama Kanta Jain (supra). The relevant portion is set out below:
14. In Annasaheb Bapusaheb Patil v. Baldwin Babusaheb Patil, ((1995) 2 SCC 543 : AIR 1995 SC 895) their Lordships of the Supreme Court while dealing with a case of adverse possession opined (vide paras 12 & 13) ‘adverse possession’ means a hostile assertion i.e. a possession which is express or implied and with continuity of title of the true owner. “Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”
17. The defendants claim themselves to be the owners in possession over the disputed property on the ground 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 cold in the same breath.
18. There is another aspect of the matter. The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. 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.”
18. It is pertinent to note that in the present case, the defendant no. 1 has claimed rights in the suit property on the basis of being an owner. Reference may also be made to paragraph 3 at page no. 7 of the written statement, which is set out below:
“The entire consideration amount as well as stamp duty was paid by Smt. Krishna Gupta, Sapan Gupta wife and son of defendant no. 1 and further confirmed that since the Sale Deed or transfer documents cannot be executed and registered for the time being and as and when, this would be permissible, he would transfer the same in favour of Shri. Vijay Gupta and has also stated that the possession has been handed over to Shri. Vijay Gupta as a owner who is fully authorized to use it in any manner whatsoever and there will be no right to Late Ashok Kumar or his legal heirs in future. It is submitted that the Transfer Deed is incapable of execution even today and defendant reserve his right to file appropriate legal proceedings for transfer as and when the same would be permissible.”
19. In light of the dicta in Rama Kanta Jain (supra), the plea of adverse possession in the present case would not be available to the defendant no. 1, as he has claimed himself to be the owner in possession of the suit property.
20. With regard to the submission of the defendant no. 1 in respect of the limitation period, a reference may be made to Section 27 of the Limitation Act, 1963, which is set out below:
“Extinguishment of right to property - At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”
21. A reference may also be made to Article 65 of the Schedule to the Limitation Act, 1963. The same is set out below:
65 | For possession of immovable property or any interest therein based on title. | Twelve years | When the possession of the defendant becomes adverse to the plaintiff. |
22. It is clear from the above that the limitation period would commence only when the possession of the defendant becomes adverse to the plaintiff. As already observed above, the claim of the defendant no. 1 is founded on being an owner in possession of the suit property and therefore, this cannot be taken to be a possession adverse to that of the plaintiff, in terms of Article 65 above. Resultantly, it cannot be said that the present suit is barred by limitation.
23. With regard to Order XII Rule 6 of the CPC, the Division Bench of this Court has observed in Rajeev Tandon v. Rashmi Tandon, 2019 SCC OnLine Del 7336, that for the purposes of Order XII Rule 6 of the CPC, the admissions can be in the pleadings or in the documents filed on behalf of the parties. The admissions can also be constructive admissions, which can be inferred from the vague and evasive denial in the written statement. In P.P.A Impex Pvt. Ltd. v. Mangal Sain Metal, 2009 SCC OnLine Del 3866, the Division Bench of this Court has observed that the approach to be taken under Order XII Rule 6 of the CPC is akin to that to be taken while considering a leave to defend application in a Order XXXVII suit. If a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting leave to defend and by decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial.
24. From the discussion above, it is apparent that the various defences taken in the written statement are self-contradictory and self-destructive and impermissible in law. I am of the considered view that the defence raised by the defendant no. 1 is in the nature of moonshine and it would be a waste of judicial time to put the same for trial.
25. Resultantly, the application under Order XII Rule 6 of the CPC is allowed and the suit is decreed in favour of the plaintiff and against the defendants in respect of the possession of the suit property of ground, first and second floor of the suit property, in terms of the site plan filed by the defendants.
26. The defendants are directed to vacate the suit property within three months and handover possession of the same to the plaintiff.
27. Accordingly, the suit is decreed in terms of prayers (i), ii), (iii) and (iv) of the plaint. Parties to bear their own costs.
28. Decree sheet be drawn up.
I.A. 7749/2022 (O-XXXIX R-1&2 of CPC)
29. In view of the order passed in I.A. 3994/2021, granting three months time to the defendants to give possession of the suit property to the plaintiff, it is directed that the defendants shall not create any encumbrance or third party rights in the suit property till the handing over of the possession of the suit property.
30. The application stands disposed of.
I.A. 11214/2021 (O-XL R-1 of CPC)
31. In view of the order passed in I.A. 3994/2021, no orders are required to be passed in the present application.
32. The application stands disposed of.
CS(OS) 250/2020
33. List the suit along with the pending applications on 10thNovember, 2022 for further proceedings.
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