IN THE HIGH COURT OF DELHI AT NEW DELHI
RFA No.157/2003
Judgment delivered on: 25.01.2011
SH.JAGDISH MITER BHOLA & ORS. ..... Appellants
Through: Mr.Pushkar Sood, Advocate.
Versus
SH.HAMIDUDDIN & ORS. ..... Respondents
Through: Mr.M.Salim, Advocate.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
1. By this appeal filed under section 96 of the Code of Civil
Procedure, 1908, the appellants seek to set aside the
judgment and decree dated 18.1.2003 whereby the suit for
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possession and recovery of damages filed by the respondents
was decreed in favour of the respondents and against the
appellants.
2. Brief facts of the case relevant for filing the
present appeal are that the respondents are the successor in
interest of the property bearing no.2331-2337 , Haji Nathu
Building, Raj Guru Road, Chuna Mandi, Pahar Ganj, New
Delhi from their late grandfather Shri Sheikh Nathu who had
taken the two plots of land admeasuring 417 sq. yards and
208 sq. yards total being 625 sq yards out of khasra number.
490 and 491/1 situated at Chuna Mandi , Pahar Ganj, New
Delhi vide lease deed dated 17.7.1919 from Delhi
Improvement Trust. A suit for possession and recovery of
damages was filed by the respondents No.1 to 3 against the
appellants in respect of the said property and in defense the
appellants claimed the title of the said property in themselves
by adverse possession. Vide judgment and decree dated
18.1.2003 the said suit was decreed in favour of the
respondents and against the appellants. Feeling aggrieved
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with the same, the appellants have preferred the present
appeal.
3. Assailing the judgment and decree passed by the
learned trial court, Mr.Pushkar Sood, learned counsel
appearing for the appellants submits that the respondents
failed to prove on record their ownership in respect of the
subject property as they did not prove on record either the
death certificate of late Shri Sheikh Nathu or that they were
the legal heirs of late Shri Nathu. Counsel also submits that
by the Jama Bandi/Khatauni and the property tax receipts
which were proved on record, the respondents cannot prove
their title on the property in question. Counsel also submits
that the learned trial court misconstrued the judgment of this
Court in the case of Rama Kant Jain Vs. M.S.Jain, AIR
1999 Delhi 281. The contention of the counsel is that in the
facts of the said case the plaintiffs/respondents had claimed
the ownership based on the sale deed and the
appellants/defendants being the relatives of the plaintiffs had
claimed that they had contributed towards the purchase of
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the property in question. Counsel thus submits that in those
peculiar facts the learned Trial Court took a view that setting
up an adverse possession in such facts would amount to
admission by the defendants to the title of the plaintiffs.
Distinguishing the facts of the present case, counsel submits
that in the present case the appellants had throughout been
disputing the title of the respondents and nowhere in the
written statement the appellants had admitted the title of the
respondents. Counsel also submits that in fact late Shri
Sheikh Nathu was the owner of the said property who left for
Pakistan in the year 1947 and ultimately died in the year 1951
and the present respondents who have claimed themselves to
be the legal heirs of late Shri Nathu have failed to prove on
record as to how they claim themselves to be the legal heirs
of late Shri Nathu. Counsel also submits that in Para-29 of the
impugned judgment, the learned trial court has observed that
as per the documents i.e. Khatauni and Jamabandi placed on
record by the respondents pertaining to the year 1967-68, it
was Nathu son of Rahim Baksh who was the owner in respect
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of Khasra No.490-491/1. Counsel also submits that so far the
house tax receipts and the receipts of the lease money proved
on record by the respondents are concerned, the same as per
the settled legal position cannot confer any title on the
respondents. In support of his arguments, counsel for the
appellants placed reliance on the judgment in Rajinder
Singh Vs. State of J & K and Ors. (2008) 9 SCC 368,
wherein the Hon’ble Apex Court took a view that the revenue
records cannot confer title of the property on a party and
entries in the revenue records are relevant only for fiscal
purpose and substantive rights of the title and ownership of
the claimants can be decided only by a competent civil court
in appropriate proceedings. Based on the said judgment,
counsel submits that the learned trial court has wrongly taken
into consideration the jamabandi/khatauni, notice of demand
issued by the MCD, house tax receipts and receipt of lease
money etc. to confer ownership of the property in question on
the respondents.
RFA No.157/2003 Page 5 of 19
4. Refuting the said submissions of counsel for the
appellants, Mr.M.Salim, counsel for the respondents submits
that so far the ownership of late Shri Sheikh Nathu is
concerned, the appellants themselves have admitted in their
written statement that he was the owner of the property in
question. Counsel also submits that the respondents in their
pleadings as well as in the evidence have proved on record
that late Shri Nathu was survived by three sons namely
Gulam Farid, Mohd. Hanif and Hazi Mohd. and after their
demise the respondents succeeded to the said properties left
by their grandfather late Shri Sheikh Nathu. Counsel further
submits that the respondents had also produced a Patwari
Sh. Rajbeer Singh (PW-2) from the office of the DDA, who in
his evidence duly proved on record that the said properties
forming part of Khasra No.490-491/1, Chuna Mandi,
Paharganj, New Delhi measuring 417 sq.yards and 208
sq.yards stood in the name of late Shri Nathu who was the
lessee of the said properties. Counsel also submits that the
said witness also proved on record that on 11.08.1999
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mutation of the said properties was sanctioned in favour of
various legal heirs who succeeded to the said properties as
per their respective shares. Referring to para-11 of the
impugned judgment, counsel submits that the testimony of
PW-2 remained unchallenged and unassailed and, therefore,
based on the said testimonies of PW 1 and PW-2 the
respondents could successfully prove on record that late Shri
Nathu was the recorded lessee of the said properties and
after his demise the said properties were duly mutated in the
relevant revenue records in the names of the respondents.
Counsel for the respondents also submits that DW-2 in his
evidence duly admitted the certified copies of
jamabandi/khatauni proved on record by the respondents
through the testimony of PW-1 as Ex.P-1 and P-2 and Ex. P-5
and Ex.P-6.
5. I have heard learned counsel for the parties at
considerable length and gone through the records.
6. During the course of the arguments, counsel for
the appellant assailed the findings of the learned trial court
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only on issues No. 2 and 3 while on rest of the issues the
findings of the learned trial court have not been challenged
by the counsel for the appellants. The prime argument of the
learned counsel for the appellants is that no documentary
evidence was placed on record by the respondents (plaintiffs
in the suit), which could have established the clear title of
these respondents over the property in question. Counsel for
the appellants has also taken a strong exception to the
interpretation given by the learned trial court to the judgment
in Ramakant Jain vs. M.S. Jain (Supra) to the facts of the
present case. Learned counsel also assailed the judgment of
the learned Trial court on the ground that khatauni/jamabandi
proved on record by the respondent as Exs. P-5 & P-6 cannot
be accepted as title documents, while Exhibits P3, P4, P7, P8,
P10 and P11 being the house tax receipts, notices of demand
issued by the MCD and receipts of the lease money etc.
deposited by the respondents with the DDA cannot prove the
title or ownership of the respondents.
RFA No.157/2003 Page 8 of 19
7. Before dealing with the said submissions of counsel
for the rival parties, it would be appropriate to reproduce
issues No. 2 and 3, on which the arguments were addressed
by both the counsel. The same are as under:-
“2. Whether the plaintiffs are owners of the suit
property? OPP.
3. Whether the plaintiffs are entitled to possession
of the suit property? OPP.”
8. It is not in dispute between the parties that late
Shri Sheikh Nathu S/o Shri Rahim Baksh Sheikh was the
owner of the property in question. As per the case of the
respondents, late Shri Sheikh Nathu was the lessee of the
said property vide lease deed dated 17.7.1919 duly executed
in his favour by the Delhi Improvement Trust, predecessor-in-
interest of Delhi Development Authority. As per the
respondents/plaintiffs, Sheikh Nathu died in the year 1951
and he left behind three sons Gulam Farid, Mohd. Hanif and
Hazi Mohd. All these three sons of Sheikh Nathu had also
died and all the three respondents, who were plaintiffs before
the learned trial court and respondents nos.4 to 12 who were
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performa defendants No. 6 to 15 before the learned trial court
are granddaughters and grandsons of late Shri Sheikh Nathu.
PW1 in his testimony has duly deposed in his evidence that
the respondents are successors-in-interest of late Shri Sheikh
Nathu and, therefore, they succeeded to the title of late Shri
Sheikh Nathu in respect of the property in question. The
testimony of PW1 in this regard remained unchallenged and
unrebutted. The respondents have also proved on record that
in the municipal records the said properties were duly
mutated in the name of Gulam Farid and other predecessors-
in-interest of the respondents and thereafter in the year 1999
the same were mutated in the name of the respondents and
other legal heirs. PW2 Rajbeer Singh, Patwari was summoned
from the office of the DDA, who duly proved on record that
the property forming part of Khasra No. 490 and 491/1,
Chuna Mandi, Pahar Ganj measuring 417 sq.yards and 208
sq.yards stood in the name of late Shri Sheikh Nathu son of
Shri Rahim Baksh caste Sheikh resident of Hanuman Road as
lessee and on 11.8.1999 the mutation (share) of the said
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property was sanctioned in the name of Hamiddudin,
Ahteshamuddin, Kadiruddin, Shujauddin, Iftikaruddin,
Imtiazuddin, all sons of Gulam Farid (1/3rd share), Smt.
Fatima Begum Mohd. Hayat and Mohd. Yusuf, all sons of Hazi
Mohd. Hanif (1/3rd share), Khurshid Ahmed, Nisar Ahmed,
Salim Ahmed, Salahuddin, Shamim Ahmed all sons of Hazi
Mohammad (1/3rd share) vide entry at serial No. 2661. The
testimony of the said witness, as per the findings of the
learned Trial court, remained unassailed and unchallenged
and based on the testimony of both PW1 and PW2, it cannot
be said that the respondents did not place enough material on
record to show as to how they succeeded to the title of the
said properties as respective co-owners. The
Khataunis/jamabandies of Khasra No. 490 and 491/1 of the
revenue estate of Pahar Ganj, Chuna Mandi for the year 1967-
68 were also proved on record by the respondents as Exhibit
P5 and P6. As per these documents, late Shri Sheikh Nathu
has been shown as the owner of the said khasra numbers. The
appellants have also not challenged the authenticity and
RFA No.157/2003 Page 11 of 19
correctness of the said documents, and correctly so, since the
appellants have not disputed the ownership of late Shri
Sheikh Nathu in respect of the said properties. Exhibit P3 and
P4 were proved by the respondents, which were notices of
demand issued by the MCD and the said notices show that the
property in question stood in the name of Gulam Farid and
Ors. Exhibit P7 and P8 are the receipts of lease money
deposited by these respondents with the DDA. Exhibit P10
and P11 are the receipts of house tax deposited by these
respondents with the MCD in respect of property bearing No.
2231/37 Pahar Ganj, which is a new municipal number of the
said property bearing khasra No. 490 and 491/1, Pahar Ganj,
Chuna Mandi. The correctness and authenticity of these
documents also was not challenged by the appellants. The
learned Trial court has also observed that the appellants have
been merely disputing the ownership of these respondents.
The Trial court in para 31 of the impugned judgment has
observed that DW1 in his entire testimony did not answer any
question directly and when any question was put to him in
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order to clarify some facts then his simple reply had been that
he does not know. The learned trial court also observed that
the defense of the appellants in the written statement has
been that they became owner by adverse possession but they
failed to name any person against whom they claimed their
hostile title. The appellants did not succeed to prove their title
by adverse possession and very fairly the counsel for the
appellants has also not challenged the correctness of the
findings of the learned Trial court so far the findings on issue
No. 1 are concerned. To claim title by adverse possession, it is
not only the continuous and uninterrupted possession for a
period of 12 years or more but such a possession set up by the
defendant must be hostile to the real owner whose title the
defendant intends to deny by setting up such title in himself.
It is not, therefore, mere physical or continuous possession,
which would result in establishing the title in the defendant
but such continuous and uninterrupted possession necessarily
has to be adverse and hostile to the real owner. The person
claiming adverse title in himself thus requires to establish two
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essential ingredients (i) Corpus possession (Physical
Possession), (ii) Animus Possidendi (Intention to exclude the
adversary from possession). Explaining the concept of adverse
possession, the Hon’ble Apex Court in the case of Karnataka
Board of Wakf vs. Government of India & Ors. (2004) 10
SCC 779 observed as under:-
“Adverse possession is a hostile possession by clearly asserting
hostile title in denial of the title of true owner. It is a well-
settled principle that a party claiming adverse possession must
prove that his possession is ‘nec vi, nec clam, nec precario’, that
is, peaceful, open and continuous. The possession must be
adequate in continuity, in publicity and in extent to show that
their possession is adverse to the true owner. It must start with
a wrongful disposition of the rightful owner and be actual,
visible, exclusive, hostile and continued over the statutory
period. (See : S M Karim v. Bibi Sakinal : [1964]6SCR780 ,
Parsinni v. Sukhi : (1993)4SCC375 and D N Venkatarayappa v.
State of Karnataka : AIR1997SC2930 ). Physical fact of
exclusive possession and the animus posited to hold as owner in
exclusion to the actual owner are the most important factors
that are to be accounted in cases of this nature. Plea of adverse
possession is not a pure question of law but a blended one of
fact and law. Therefore, a person who claims adverse possession
should show (a) on what date he came into possession, (b) what
was the nature of his possession, (c) whether the factum of
possession was known to the other party, (d) how long his
possession has continued, and (e) his possession was open and
undisturbed. A person pleading adverse possession has no
equities in his favour. Since he is trying to defeat the rights of
true owner, it is for him to clearly plead and establish all facts
necessary to establish his adverse possession. (Dr. Mahesh
Chand Sharma v. Raj Kumari Sharma : AIR1996SC869 ).
12. Plaintiff, filing a title suit should be very clear about the
origin of title over the property. He must specifically plead it.
(See: S M Karim v. Bibi Sakinal : [1964]6SCR780 ). In P
Periasami v. P Periathambi : (1995)6SCC523 this Court ruledRFA No.157/2003 Page 14 of 19
that – “Whenever the plea of adverse possession is projected,
inherent in the plea is that someone else was the owner of the
property.”
9. In the facts of the present case, the respondents have
set up an adverse and hostile possession but without
disclosing the fact that against whose title or ownership they
are claiming such hostile or adverse possession. The
appellants, although have denied the title of the respondents
but at the same time have not denied the fact that the
grandfather of these respondents, late Shri Sheikh Nathu was
the owner being lessee under the Delhi Improvement Trust.
Once having admitted this position, the only question left to
be determined by the trial court was to see that whether the
respondents could successfully prove on record that they are
the rightful legal heirs deriving their right over the property
tracing their title to late Shri Sheikh Nathu. PW1 in his
evidence clearly deposed that his grandfather Shri Sheikh
Nathu was the owner of the said property, who died in the
year 1951. He also deposed that late Shri Nathu was survived
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by his three sons namely Gulam Farid, Mohd. Hanif and Hazi
Mohd and that all three sons of late Shri Sheikh Nathu had
expired. He also testified that he is the son of Gulam Farid
besides five other sons. Similarly he also disclosed the name
of other legal heirs left by Mohd. Hanif and Hazi Mohd. There
is no challenge to the said testimony of the plaintiff as the
said deposition of the respondent PW1 remained
unchallenged and unrebutted. PW2 Rajbeer Singh, Patwari
from the DDA proved mutation of the said properties in the
name of the respondents and other legal heirs and he clearly
stated in his evidence that the said mutation was done by the
DDA based on inheritance. The testimony of PW2 also
remained unchallenged. This mutation of the said property in
the record of DDA also clearly establishes the fact that these
respondents were alone the inheritors of late Shri Sheikh
Nathu, who succeeded to the ownership and title of the said
property in question. The ownership of the respondents also
gets strengthened from the fact that they alone had been
paying the house tax to the MCD and the lease money to the
RFA No.157/2003 Page 16 of 19
DDA. The two jamabandis proved on record as Exs. P-5 and
P-6 clearly show that late Shri Sheikh Nathu was the recorded
owner in the revenue records in respect of khasra No. 490
and 491/1. Taking a cumulative effect of all these
documentary evidence proved on record by the respondents
and the unchallenged and unrebutted testimonies of PW1 and
PW2, there is no reason to disbelieve the claim of the
respondents with regard to their ownership in respect of
property now bearing No. 2331-2337, Haji Nathu Building ,
Raju Guru Road, Chunna Mandi, Paharganj, New Delhi.
Therefore, I do not find any infirmity or illegality in the
finding given by the learned Trial court on the issues No. 2
and 3.
10. So far the reliance placed by the learned Trial court on
the judgment of the Apex Court in Rajinder Singh (Supra)
wherein it is held that the revenue record confer no title on
the property and such entries are relevant only for fiscal
purpose, would be of no help to the case of the appellants.
The respondents in the present case have not claimed
RFA No.157/2003 Page 17 of 19
ownership merely based on revenue record i.e. jamabandi
proved on record as Exs. P-5 and P-6 but also based on the
admitted fact that late Shri Sheikh Nathu was the owner of
the said properties and the respondents being the
grandchildren, succeeded to the ownership of the said
properties and, therefore, it is quite evident that the
respondents claimed ownership in themselves being the
successors-in-interest of late Shri Sheikh Nathu and not
merely because of the fact that the said properties were
mutated in their name in the records of the MCD or merely
because they were paying the lease money to the DDA. The
jamabandies proved on record as Exs. P-5 and P-6 of course
clearly proves that in the revenue records also late Shri
Sheikh Nathu was the recorded owner, whose ownership has
also not been disputed by the appellants. Based on these facts
and the documents proved on record by the respondent and
with the unrebutted and unchallenged testimonies of PW 1
and PW2 and the fact that the appellants could not produce
any material either through documentary or oral evidence to
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refute or challenge the said title of the respondents, this
Court finds itself in agreement with the conclusions arrived at
by the learned trial court accepting the ownership of the
respondents on the subject property.
11. In the light of the above discussion, the judgment
and decree passed by the learned trial court is upheld and
consequently the present appeal filed by the appellants is
dismissed with no order as to costs.
January 25, 2011 KAILASH GAMBHIR, J
dc/rkr
RFA No.157/2003 Page 19 of 19