Delhi High Court High Court

Sh Jagdish Miter Bhola & Ors. vs Sh. Hamiduddin & Ors. on 25 January, 2011

Delhi High Court
Sh Jagdish Miter Bhola & Ors. vs Sh. Hamiduddin & Ors. on 25 January, 2011
Author: Kailash Gambhir
     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

RFA No.157/2003 Page 1 of 19
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

RFA No.157/2003 Page 2 of 19
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

RFA No.157/2003 Page 3 of 19
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

RFA No.157/2003 Page 4 of 19
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

RFA No.157/2003 Page 6 of 19
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

RFA No.157/2003 Page 7 of 19
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

RFA No.157/2003 Page 9 of 19
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

RFA No.157/2003 Page 10 of 19
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

RFA No.157/2003 Page 12 of 19
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

RFA No.157/2003 Page 13 of 19
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 ruled

RFA 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

RFA No.157/2003 Page 15 of 19
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

RFA No.157/2003 Page 18 of 19
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