ORDER
C.M. Nayar, J.
1. The present suit has been filed for declaration, possession and recovery of mesne profits in respect of the property bearing No. 13, cinema site, Krishan Nagar, Delhi. The plaintiff has alleged in the plaint that he is the owner of the shop plot of land measuring about 66.6 sq.yards. The said plot was purchased by him from Shri Om Parkash Goela vide sale deed dated 29th April 1955 executed by Shri Om Parkash Goela in favour of the plaintiff and it was registered in the office of the Sub-Registrar. Delhi as Document No.5520 in Book No.1 Vol.2970 at pages 372 to 375 on 21st October, 1955. The said Om Parkash Goela had earlier purchased the plot from Delhi Land and Auto Finance Company Limited (hereinafter referred to as ‘DLF’) and a sale deed was executed in his favour. The said sale deed was registered as Document No.1269 in Additional Book No.1 in Book No.231 at pages 140 to 141 on 4th March, 1950 in the office of the Sub-Registrar at Delhi.
2. It is next submitted that the plaintiff had always been in possession of the said plot of land since 1955 as a consequence of the purchase from Shri Om Parkash Goela and has been paying property tax. The plaintiff had also applied to Municipal Corporation of Delhi and other authorities concerned for the construction of the property on the plot of land. The sanction to construct property was granted to the plaintiff according to the plans submitted by him vide letter dated 20th June, 1968. The plaintiff started construction in or about April 1969. The construction, however, was discontinued because of paucity of funds and other reasons and the plaintiff was able to construct only two temporary structures over the suit property which was duly mutated in the records of the Municipal Corporation of Delhi in favour of the plaintiff who had been paying property and other taxes.
The Defendant is an occupant of adjoining plots bearing Nos. 14, 15, and 16 cinema site, Krishan Nagar, Delhi.
3. The plaintiff had been in Government service and as such was out of Delhi. He had been living at Chandigarh and Amritsar for last many years on account of his assignment. The father of the plaintiff ‘Shri Shree Ram’ Chibber was living at 400 Jheel Khureje since about 1969 and the defendant allegedly had been visiting the father of the plaintiff during his life time and had developed friendly relations with him. The father of the plaintiff was an old of about 93 years of age and was stated to senile due to his old age. He was neither the owner of the property in dispute nor was he in possession of the property nor he was authorised and his father at any time to do any act or deed in respect of the said plot of land on behalf of the plaintiff. The plaintiff came to Delhi in the middle of August 1983 and was surprised to see the defendant in possession of the disputed plot. On being asked to vacate the same the defendant claimed himself to be owner of the plot allegedly on the basis of a sale deed purported to have been executed by father of the plaintiff. Thereafter the plaintiff enquired from his father who told him that the defendant used to come very frequently and was giving an impression to looking after him in his old days and he had become fond of the defendant and signed certain documents at his instance without knowing their contents and without receiving any money or any consideration from the defendant. It was reiterated that the plaintiff’s father was not aware of the details of the alleged deed which the defendant had got signed from him under influence and misrepresentation. This document of sale was executed on 20th July, 1983 between the father of the plaintiff Shri Shree Ram Chibber and the defendant. The said father expired on 23rd August, 1983. The following pleas are raised by the plaintiff in the suit which are incorporated in paragraphs 13, 14, 15, 16 and 17 of the plaint :-
“13. That Shri Shree Ram Chibber was never the owner of the property in dispute. He was never authorised at any time to do any act or deed on behalf of the plaintiff covering the said property. The defendant without enquiring about the title of the said plot it appears got the sale deed dated 20.7.1983 signed in his favour allegedly for Rs. 10,000/- in respect of the said plot of land.
14. That the defendant illegally occupied the said plot of land and got the sale deed signed in his favour from Shri Shree Ram Chibber who was not the owner of the same, fraudulently under undue influence and without ascertaining about the ownership of the said Shri Shree Ram Chibber. The defendant did not act in good faith nor did he take reasonable care to ascertain about the right of ownership of said Shri Shree Ram Chibber.
15. That the defendant also did not pay the alleged consideration of Rs.10,000/- to the father of the plaintiff. The value of the land was more than Rs.1,500/- per sq.yard, at the time the alleged sale deed was not signed by the defendant from Shri Shree Ram Chibber. The said sale deed dated 20.7.1983 by Shri Shree Ram Chhibber in favour of the defendant is void, not binding upon the plaintiff and does not affect ownership rights of the plaintiff.
16. That the defendant has been in illegal possession of the property since July, 1983 without any right, title or interest in the said plot of Land. ownership or any other rights do not vest in favour of the defendant on the basis of the alleged sale deed dated 20.7.1983 by Shri Shree, Ram Chhibber in favour of the defendant. The defendant has been in an illegal occupation of the said plot of land since about, July, 1983. He has been asked by the plaintiff a number of times to hand over the possession to the plaintiff as he has no right, title or interest in the disputed property. The defendant, however, has refused to hand over the vacant possession of the same and has been using the same for his personal gains.
17. That the defendant is liable to pay mesne profits to the plaintiff on account of unlawful use of property in dispute . The defendant has no right, title or interest to retain the possession of the property in dispute and use the same in any manner. The defendant is liable to pay the damages at the rate to Rs. 500/- per month or at the rate as determined by this hon’ble court. The plaintiff seeks an enquiry for determination of the rate of mesne profits under Order 20 Rule 12 of the code of civil procedure.
4. This suit has been filed on July 13,1984 inter alia for the reliefs as indicated above. Summons in the suit were issued to the defendant and has filed his written statement. The following please are taken in the preliminary objection in paragraphs 3 and 4 of the written statement which may be reproduced as follows :-
“3. That since no details of fraud and undue influence alleged to have been practiced by the defendant upon the father of the plaintiff in getting the sale deed dated 20.7.1983 executed from him in his favour have been stated by the plaintiff in terms of Order 6 Rule 5 of C.P.C. wild and vague allegations of fraud and undue influence cannot be looked into by this Hon`ble Court while examining the case on merits.
4. That since the defendants has continued to remain till today in exclusive and actual physical possession of the suit land in his own right to the knowledge of the plaintiff with effect from 20th June. 1958 when he occupied the said land which had been lying vacant, without the consent and permission of the plaintiff who alleges himself to be its owner, for running the work of manufacturing cemented jalies by floating a partnership with concern in the name of Shri Ganesh Cement Jali works in partner- ship with his brother Shri S.C.Gupta, he has acquired ownership rights by way of adverse possession because of his continuous, uninterrupted, open and hostile possession to the knowledge of the plaintiff whose ownership rights, if any, in the suit land have come to an end automatically by lapse of time because of his failure to disposes the defendant from the same within the statutory period of limitation.”
5. On merits it is stated that since DLF was not the owner of the said land, and sale deed executed by the said company in favour of Shri Om Parkash Goela did not confer any valid title on the said transferee, as alleged. The defendant had occupied the suit property in his own right on 20th June, 1958 and carried on the work of manufacturing cement Jalies in partnership with his brother Shri S.C.Gupta. The plaintiff has wrongly alleged that he has been paying property tax in respect of the suit property rather it is the defendant in whose name the said, plot stand mutated in the records of the Municipal Corporation of Delhi and he has been paying house tax regularly since the year 1963. The possession of the plaintiff at any time was denied and it was reiterated that the defendant was in possession. He had raised the boundary wall along with two tin roofed rooms and tin shed on the said plot in the year 1958 while starting his business as referred to above. No one except the father of the plaintiff claimed to be the owner of the suit property and as such since the plaintiff never objected to the same be was impliedly entitled in law to execute the sale deed in regard to the ownership right of the plot in question which was already in possession of the defendant since long. The defendant accordingly, had been in exclusive possession of the suit property, since 20th June 1958 and the execution of the sale deed between the father of the plaintiff and the defendant on 20th July, 1983 was very much within the knowledge of the plaintiff and there was no necessity of the defendant to furnish particulars of the said sale deed. The following plea which is taken in paragraph 12 of the written statement may also be referred:-
“In fact since the father of the plaintiff claiming himself to be the owner of the said plot of land, desired the defendant to pay him some compensation considering his old age for the ownership rights in the said plot, even though he was not entitled to anything because the defendant had already become the owner of the said plot of land on account of adverse possession. The defendant out of compassion and respect for the old man agreed to pay him a sum of Rs. 10,000/- in consideration of which the aforesaid father of the plaintiff desired to execute the sale deed in favour of the defendant and consequently Shri Shree Ram Chibber, the father of the plaintiff executed a registered sale deed on 20.7.1983 in favour of the defendant for consideration of Rs. 10,000/- which was paid to him before the Sub-Register at Krishan Nagar, Delhi-110051 at the time of registration. All these facts were in the knowledge of the plaintiff who neither asserted his title nor raised any objection on the execution of the sale deed by his father. The plaintiff be put to strict proof in respect of the facts alleged in the para under reply.”
6. Replication to the written statement was filed by the plaintiff where in the averments made in the plaint were reiterated. In reply to preliminary objection 1, the following plea was taken:-
“(1) Para 1, of the preliminary objections is wrong and is denied. It is denied that the plaintiff is not the owner of the property in dispute bearing Cinema Plot No.13, Krishan Nagar, Delhi measuring about 66.6 sq.yds. as alleged. It is further denied that Shri Om Parkash Goela was not the owner of the property in dispute who sold the same to the plaintiff. It is submitted that the land bearing Khasra No.148 and 149 wherein the property in dispute is situate is shown in the revenue records in the name of Delhi Land & Finance Ltd., a Joint Stock Company. Delhi Land & Finance Ltd. sold the said plot of land by a legal and valid sale deed dated 1.3.1954 to Shri Om Parkash Goela, son of Shri Faqir Chand Goela. The sale deed was duly registered with the Sub-Register, Delhi having registered No. 1269 in Additional Book No.1. Volume No.231 at pages 140 to 145 on 4.3.1954. Shri Om Parkash Goela sold the same plot of land to the plaintiff and executed a legal and valid sale deed in favour of the plaintiff dated 29.4.1955. The sale ded executed by Shri Om Prakash Goela in favour of the plaintiff was also registered with the Sub- Register, Delhi It is emphatically denied that the plaintiff has no locus standi to prefer the present suit as alleged.”
7. The remaining contents of the written statement were also denied.
8. On the pleadings of the parties the following issues were framed on 20th February, 1985:
“1. Whether the plaintiff is the owner of the property in dispute ?
2. In case issue No.1 is proved, was Shri Shree Ram Chibber competent to effect sale of this property in favour of the defendant and what is the effect of the sale ?
3. Has defendant become owner of this property by adverse possession and is this plea available to him having purchased this property from Shri Shree Ram Chibber ?
4. Is the suit within time ?
5. Is the plaintiff entitled to damages/mesne profits ? If so, at what rate and for what period ?
6. Relief.”
9. ISSUE NO.1 : The question as to whether plaintiff is the owner of the property in dispute may now be examined.
10. Exhibit P-9 is the sale deed executed in favour of the plaintiff by Om Parkash Goela which was registered on 21st October, 1955. This document conferred the ownership of the suit property on the plaintiff. Exhibit P-10 is the sale deed dated 1st March,1954 executed between the DLF (vendor) and Shri Om Parkash Goela which was also registered before the Sub-Registrar at Delhi on 4th March, 1954 vide Registration No. 1269 in Additional Book No.1, Volume No. 231 on pages 140 to 145. These documents are registered documents and have not the owner of the land and therefore, had no DLF was not been denied by the defendant. The learned counsel, however, has contended that DLF was not the owner of the land and, therefore, had no right to execute sale agreement in favour of Om Parkash Goela who in turn could not shall by the plaintiff. The entire transaction is, accordingly, void and the plaintiff cannot derive any benefit from the sale deed which is filed as Exhibit P-9. The reason for this contention is traced to the document Exhibit D-A which is copy of the Jamabandi including the suit land wherein the English translation reads as follows :-
“Mutation No.337/21-4-49 oral sale on behalf of Makhan Lal in favour of Delhi Land & Finance Ltd. New Delhi for Rs.1-1/2 Lakh area 503-18-
Mutation No.338/21-2-49 Mutual Partition Makhan Lal & Delhi Land & Finance.”
11. The learned counsel for the plaintiff on this basis has not contended that under the provisions of law there could not be any oral sale in favour of DLF and the subsequent sale in favour of Shri Om Parkash Goela cannot be held valid. The said Om Parkash Goela had no jurisdiction in law to vest the property in the plaintiff by sale deed dated April 29, 1954 as his own title was not established. The following judgment have been cited:-
12. Sardarilal and Others Vs. Shrimati Shakuntla Devi . Paragraph 10 of this judgment reads as follows:-
“(10) The first question which calls for decision is whether Sec.54 of the Transfer of Property Act has been extended to the area in which this property is situated. Section 54 requires that the transfer of ownership by way of “sale”, in the case of tangible immovable property of the value of one hundred rupees and upwards, can be made only by a registered instrument. This section also provides that contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties but such a contract does not, of itself, create any interest in or charge on such property. The provisions of Sec.54 as to the mode of transfer are exhaustive and do not admit of a sale being effected in any other manner.
Thus, title to the land cannot pass by mere admission when the statute requires the execution of a deed. In those parts of the Punjab, where the provisions of this Act are not enforce, an oral sale is valid. As deed of sale was neither registered nor executed the question whether Model Town, where this property is situated, was an area to which Section 54 of the Transfer of Property Act was made applicable, acquires great importance. It is clear from R.W.3/1 that the revenue estate of Model Town, had-bast No.185, was an area of which Sec.54 of the Act had been extended. After the boundaries of the revenue estates are marked off each estate is allotted a separate number known as had-bast number. In the Schedule forming part of Exhibit R.W.3/1, there are enumerated over 70 revenue estates and each one of them has a single had-bast number.
There is no convincing proof on the record that Model Town, Lahore, had more than one had-bast numbers. It is also clear from the survey map of Lahore that areas such as Bhekewal, Kot Lakh- pat, Amar Sindhu, Charar, Lahore Cantonment which are admittedly within the municipal limits of the city of Lahore, almost encircled Model Town, suggesting, that no part of Model Town was excluded from the municipal bounds.”
13. In Ram Gopal Reddy Vs. The Additional Custodian Evacuee Property, Hyderabad the Supreme Court reiterated that in a sale of property worth more than Rs.100/-, title does not pass to transferee unless sale deed is registered.
14. In Kuldip Singh and others Vs. The Financial Commissioner, Union Territory, Chandigarh and others 1970 Punjab Law Reporter 438, the learned Single Judge referred to the facts and held as follows:-
“4. The first point for decision is whether the petitioners have any right to file the present writ petition. The decisions of this question in turn depends on the answer to the question whether Smt.Vidya Wanti and K.L.Pasricha had any right to file objections against the sale of the house held on July 15, 1968. Admittedly, they were not the defaulters. The defaulter was respondent 5 and he filed no objections. Smt.Vidhavonti had not acquired any proprietary rights in the house by the agreement of sale. There is no doubt that in part performance of the agreement respondent 5 had put her in possession of the house, Under section 53-A of the Transfer of Property Act, Smt.Vidya Wanti had the right to retain the possession of the house as against respondent 5 provided she performed or was willing to perform her part of the contract. The sale of a house of the value of more than one hundred rupees can be made only by a registered instrument as is provided in section 54 of the Transfer of Property Act which is applicable to the Union Territory of Chandigarh. In the absence of such a registered instrument of sale, no title passes to the transferee. Admittedly, no instrument of the sale has so far been executed by respondent 5 in favour of the Petitioners nor was any executed in favour of Smt. Vidya Wanti. Section 91 of the Punjab Land Revenue Act does not state as to who can file the objections to the sale. If an analogous provision in the Code of Civil Procedure is looked into, it is Order 21 rule 89 which provides that the objections to the sale can be filed by the person owning the property or holding an interest therein by virtue of a title acquired before such sale. Even under that rule Smt.Vidya Wanti and K.L.Pasricha had no right to file objections for setting aside the sale. If they had no right to apply for setting aside the sale under section 91 of the Punjab Land Revenue Act, they have no right to file the present writ petition.”
15. The plaintiff herein admittedly executed a sale deed with Shri Om Parkash Goela on 29th April 1955 which was duly registered. The defendant subsequently got another sale deed executed by the father of the plaintiff dated 20th July, 1983 without confirming as to whether the title vested in the father of the plaintiff, Shri Shree Ram Chibber. The first document is not denied by the defendant. The statement of the defendant as DW-1 was recorded wherein in cross examination it is stated as follows:-
“The plot in suit was lying vacant. Therefore, I took possession of it in the year 1958. I did not consider it necessary to enquire as to who was the owner of the plot. I do not know from whom my brother had purchased plot No.14 of which he is the owner. My brother had purchased it in the year 1959. Cinema plot No.16 was purchased by my father in the year 1956. I do not know from whom my father had purchased the said plot. The sale deed with respect to the said plot is lying with me at my residence. The cinema plot No. 15 was purchased by my brother from Narain Dass in the year 1971-72. I never enquired as to who was the owner of these plots earlier. I do not know the basis of my statement that the plot in suit did not belong to Delhi Land & Finance. I do not Know if the plot in suit was purchased by the plaintiff from Shri Om Parkash Goela in 1955. I have cinema halls on the border of Delhi State. This is the only business I am having now. On cinema plot No.16 there is a sign board of M/s. Lakshmi Land & Finance Company (Regd.), Colonisers and Financiers and general traders. I and my two brothers are the owners of the said business. The said firm is no longer doing real estate business. The said firm now owns the three cinemas which are being run at the Delhi State Border. I had sold certain plots in Mahalaxmi Enclave, Karawal Nagar, Shahdara. That was an unauthorised colony. I had purchased lands in that colony from the zamidars and after getting mutation in my favour I had sold the same further. I had made enquiries about the ownership of those lands before I purchased the same. The business of making cement jalies was being done by me in partnership with my two brothers. I am in possession of the partnership deed. It is wrong to suggest that the business of making jalies was being done in cinema plot No.14 and I was never in possession of plot No. 13. I never considered it necessary to enquire about the title of Bhai Shri Ram in respect of cinema plot No.13. There is a lot of difference in the purchase transaction of the plot in suit and the purchase tractions I used to enter into for my business of real estate. I never resided in the plot in suit. The sale deed Ex.D.1/1 was got drafted by Bhai Shri Ram himself through his lawyer. I know little bit of English. The mention of my address as resident of 13 cinema plot, Krishan Nagar, Delhi; in the sale deed Ex. D.1/1 is correct. Bhai Shri Ram did not hand over to me the title deeds in his favour regarding the plot in suit at the time of the execution of the sale deed Ex.D.1/1. I have already stated that the sale deed was got prepared by Bhai Shri Ram. But I presumed whatever he got written in the sale deed should be correct. However, I state that I did not receive any title deeds or other documents from Bhai Shri Ram. I do not know the Advocate who drafted this sale deed. Bhai Shri Ram should have been 80 to 85 years of age in the year 1983. He had both his eyes intact. It is incorrect to suggest that Bhai Shri Ram was senile at that time and he could even walk and for his daily course also he has to be assisted by a servant. In the partnership deed regarding the business of making cement jalies the premises where the business was being carried on was also mentioned. I told Bhai Shri Ram that he was not the owner of the plot in suit. However, I was paying him the money just like that. I did not have any friendship with Bhai Shri Ram. I was not on visiting terms with Bhai Shri Ram. The written statement filed in the suit has been drafted under my instructions and I have signed the same and I have also verified its contents to be correct. Therefore, its contents are correct.”
16. Further the defendant has stated that adjoining plot Nos.14,15 and 16 belonged to his family. A sum of Rs.10,000/- was allegedly paid to his Shri Shree Ram Chibber under pressure from various persons who had come along with him. With regard to the ownership of the plot he stated as follows:-
“It may be that plot No. 13 belonged to Delhi Land & Finance Co. who sold it to Shri Om Parkash Goela and Shri Om Parkash Goela sold it to plaintiff Sat Parkash because I have got nothing to do with it. The plot in suit was lying vacant before I occupied it in the year 1958.”
17. The defendant further admitted that the suit plot was never mutated in his name in the municipal records but he paid house tax. The reading of the evidence of the defendant and the sale deed dated 29th April, 1955 executed in favour of the plaintiff will clinch the issue that the plaintiff is proved to be the owner of the property in dispute as the execution of the sale deed in his favour is not even denied by the defendant. The only plea which is raised is that Section 54 of the Transfer of Property Act requires that the sale in the case of tangible immovable property of the value of Rs. 100 and upward can be made only by a registered instrument and as the sale made in favour of DLF was allegedly an oral sale the plaintiff cannot derive any title in respect thereof. This plea is fallacious and the judgments cited by the learned counsel for the defendant are based on their facts. In the present case the plaintiff executed a sale deed with one Shri Om Parkash Goela who was the owner of the suit land. He admittedly acquired the same by means of an appropriate sale deed from DLF which is also a registered document. The plea that DLF had acquired the land by means of oral sale cannot be used to deny title of the land which has validly vested in the plaintiff. Apart from an entry in the Jamabandi no further evidence has been led by the defendant to prove that the title of Shri Om Parkash Goela was in any manner defective nor challenge was raised in any other proceedings by the affected parties. The ground that he could not have acquired the land from DLF as the DLF was not the owner of the land is rather farfetched as no such plea can be entertained in the present suit. The entire land it is stated by learned counsel for both the parties was sold by DLF and even the plot Nos.14, 15 and 16 which are in possession of the defendant and his family are acquired by similar means. It is quiet possible that DLF may have acquired its rights by an appropriate sale deed and/or even by adverse possession. That was a matter to be determined between the DLF and any party disputing its title thereon. Moreover the defendant in order to succeed in this plea was also required to prove that the provision of Section 54 of the Transfer of Property Act had been ex-tended to the area in which the present land was situated. This contention has neither been raised nor proved. This was so held by the Punjab High Court in Sardarilal’s case (supra). The defendant, therefore, has no locus standi to agitate a point when therein is a valid registered document executed by DLF and Om Parkash Goela. Issue No.1 is accordingly decided in favour of the plaintiff and against the defendant.
18. ISSUE NO.2: The plaintiff, has been held to be the owner of the suit property while disposing of Issue No.1. In view of the same it cannot be said that Shri Shree Ram Chibber was competent to effect sale of the property in favour of the defendant. This sale on the face of earlier registered document executed in favour of the plaintiff dated 29th April 1955 is clearly void. The defendant has admitted in his evidence that he did not even see the title of Shri Shree Ram Chibber and was aware that he was not the owner of the property. This issue is also decided in favour of the plaintiff and against the defendant.
19. ISSUE NO. 3: The defendant next has raised a plea of adverse possession by reiterating that he was in possession of the suit premises with effect from 20th June 1958. The defendant continued to remain in exclusive and actual physical possession of the land in his own right to the knowledge of the plaintiff with effect from that date. Therefore, no relief can be granted to the plaintiff in the present suit. The plea of adverse possession is misconceived. This can only be entertained when the defendant starts declaring himself as owner of the property and his possession is hostile to the owner. The statement of the defendant would establish that he only started asserting his title when he allegedly purchased the property from Shri Shree Ram Chibber vide sale deed dated 20th July, 1983. In the present case the plaintiff has never admitted that he had dispossessed and it was pleaded that the defendant had occupied the suit property. Therefore, the presumption in his favour that he was the owner and in control of the property would arise.
20. The plaintiff in his evidence as PW-6 has stated as follows:-
“In August 1983, when I came to Delhi I discovered that the defendant had occupied the property in suit. When I contacted the defendant in this behalf he told me that he had purchased the cinema plot No.13 from my father Bhai Shri Ram. My father was at that time aged more than 90 years and was physically and mentally infirm. He was deaf and had a poor eye sight. When I contacted my father to find out the veracity of what the defendant had told me, my father informed that the defendant had got signed from his some papers. I asked whether he had received some money on this account. I was told by my father that he had not received any money. I never authorised my father to sell or transfer the plot in suit to anyone. The occupation of the plot in suit by the defendant is wholly unauthorised and without my consent. I never saw any cement jalies being manufactured on my plot.”
21. The statement of Shri K.N.Chibber, PW-3 may also be referred. This witness has further reiterated as follows:-
“I knew Om Parkash Goela. He used to be my client. I have seen the original sale deed dated 29.4.1955 executed by Shri Om Parkash Goela in favour of Shri Sat Parkash in respect of the property in suit. Shri Om Parkash Goela signed this sale deed in my presence………”
“I used to reside in Krishna Nagar during those days when this plot was sold. Shri Sat Parkash remained in possession of the plot in suit after its purchase by him. Later on, Shri Sat Parkash got a building plan sanctioned for purpose of construction of a building on this plot. Mr. Sat Parkash made construction on the said plot. In 1983 I learnt that somebody had occupied this plot. I know the defendant. I had arranged sale of plots No. 15 and 16 in the cinema Block to Faqir Chand defendant. Those plots belonged to my wife. Defendant was carrying on business on the said plots of making and selling cement jalies. My fathers name was Bhai Shri Ram. Bhai Shri Ram was in government service. My father died in the year 1983. He was about 91 years old at that time. He was not keeping good health at that time. He was also of unsound mind before his death.”
22. The defendant has not led any evidence in rebuttal. He has only contended in his statement that he executed a subsequent sale deed dated 20th July, 1983 by which the father of the plaintiff allegedly sold the plot for a consideration of Rs. 10,000/-.
23. In Qadir Bux Vs. Ramchand and others the Court has explained the concept of dispossession and adverse possession. Paragraph 10 reads as follows:-
“10. There is obviously some distinction between the mere dispossession or discontinuance of the possession of the plaintiff and the adverse possession of the defendant. Ordinarily an owner of the property is presumed to be in possession of it and such presumption is in his favour where there is nothing to the contrary. It would therefore, follow that an owner of property starts with the presumption in his favour that he is in possession of his property, but where the plaintiff himself admits or it is proved that he has been dispossessed by the defendant and therefore is no longer in proprietary possession of the property in suit, at the time of the institution of the suit, the Court cannot start with presumption in his favour that the possession of the property was with him.”
24. This Division Bench of this Court held in Suraj Mal and others Vs. Babu Lal and another that possession cannot be considered adverse unless it is proved to be hostile. Paragraphs 27 and 30 of the said judgment read as follows :-
“27. The expression adverse possession means a hostile possession, that is, the possession which is in denial of the title of the true owner. It must be adequate in continuity. In publicity and in extent to show that it was possession adverse to the real owner. It is a well settled principal of law that the possession of a copartner or coheir is deemed in law to be possession on behalf of all the copartner or co-heirs. By itself it cannot be considered adverse because possession is never adverse if it can be referred to a lawful title.”
“30. There is no evidence on record to show that in 1950 or thereafter the appellants or any of them asserted any hostile title. Suraj Mal has not stated a word about it. Babu Lal in cross-examination said “Rent from all the tenants has throughout been recovered by Lal Suraj Mal, defendant. He did not give any share from the rent recovered either to me or to Smt. Tara Bai. We orally demanded our share of the rent on some occasions but he did not pay anything and said that we should have recovers to a Court of law. I cannot say whether it was ten years or more when Suraj Mal refused to pay any share out of the rent and asked us to approach a Court of law.” This evidence is worthless. A bare denial of a right is not an assertion of adverse ownership. To say “You go to Court’ merely means that only under a Court decree the appellant will pay to the respondent his due share in property and not otherwise. The appellant’s answer may amount to refusal to pay but not an assertion of a hostile title. There is not a scintilla of evidence to support the case of adverse possession which may have ripened into averse ownership. Adverse possession is a possession that is hostile, under a claim or colour of title, actual, open, notorious, exclusive, and continuous, continued for the required period of time thereby giving an indefeasible right of possession or ownership to the possession by operation of the limitation of actions. None of the elements is present in this case.”
25.The defendant has not proved the ingredients of adverse possession as have been settled by law and in the judgments as referred to above. Therefore, the plea in this regard fails. Accordingly, this Issue is also decided against the defendant.
26. ISSUE NO.4: The suit is prima facie within time Article 65 of the Limitation Act 1963 prescribes the following:
"65. For possession of Twelve years When the
immovable property or any possession
interest therein based on of the defend-
title. ant becomes
adverse to the
plaintiff."
27. The defendant executed a sale deed on 20th July 1983 on the basis of which he established his title to the suit land. The present suit was filed in the year 1984 as the plaintiff discovered that the defendant was in possession and was not vacating the premises. In this background the present suit cannot be held to be barred by time and it is held accordingly.
28. ISSUE NO.5: The plaintiff has claimed mesne profits in respect of the suit land from the date of the institution of the suit until delivery of possession to the plaintiff. The plaintiff has categorically stated in his evidence as follows:-
"The plot in suit along with the nature of construction existing therein could fetch a sum of atleast. Rs.500/- per month in 1983. At present, the rent would at least about Rs. 1,55/- per month. The present market value of the land of the plot in suit should be around Rs. 20,000/- to Rs. 25,000/- per sq. yd. this is a
commercial-cum-residential plot. It is a freehold property."
29. Taking an coverall view of the infects and the circumstances of the case, It is held that a sum of Rs.500/- per month will be an adequate amount to be awarded by mesne profits.
30. For the aforesaid reasons I pass a decree in favour of the plaintiff and against the defendant for possession in respect of the suit property with costs. The plaintiff shall also be entitled to mesne profits at the rate of Rs. 500/- per month from the date of filling of the suit till the possession is handed over to him. The plaintiff shall make good the deficiency in court fees within two weeks from today and on such payment the decree shall be drawn.