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HIGH COURT OF DELHI
C.R.P. 155/2010
HOPE HALL SCHOOL Petitioner
Through: Mr. Lovekesh Sawhney, Mr. Durgesh Kumar Pandey, Advocates.
C.R.P. 155/2010
HOPE HALL SCHOOL Petitioner
Through: Mr. Lovekesh Sawhney, Mr. Durgesh Kumar Pandey, Advocates.
VERSUS
DHANI RAM (DECD.) THR LRS Respondents
Through: Mr. S.K. Bhalla, Advocate.
Through: Mr. S.K. Bhalla, Advocate.
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
13.09.2011 I have heard counsel for both the paities.
The present revision is filed by the petitioner-defendant against the order of the learned trial Court whereby the preliminary issue of limitation framed in a suit for possession has been decided in favour of the plaintiff-respondent by concluding that though the suit under Section-6 of the Specific Relief Act was time barred having been filed beyond the period of six months from the date of dispossession of the plaintiff from the suit property but still the suit could not be dismissed since the plaintiff was claiming possession of the suit property also on the ground that he had become owner thereof by adverse possession.
The respondent - plaintiff filed a suit on 13/4/87 for possession labelling it as a
"Suit for possession under Section 6 of the Specific Relief Act", for getting back the possession of suit property from where he claimed to have been dispossessed illegally by the petitioner - defendant on 04/03/86. He paid ad valorem court fee on the valuation of the plaint at ? 700 for the purposes of Court fee and jurisdiction. The relevant averments in the plaint were made in para nos. 1,3,5 and 9 which are re-produced below:
C.R.P. 155/2010 Page 1 of4
2011:DHC:9182 r:r--S?=" Itwr{t,5£S5Sf The petitioner-defendant filed its written statement and took somepreliminaiy
Objecons inCding,Hatthe suitwas hopelessly time ba^ed. Onmerits, it was claimed ha m the year .980 the respondent -plaintiffwas given aroom on lieence basis for
M
'TlQsr He remained in possession upto 4® March, 1986onwhich datehehad voluntarilysurrenderedpossessionto it
The learned trial Cotm fr^ed an issue of limimtion and it was hreated as a pieliminary issue.
Vide impugnedorderdated 18^May, 2010 the learnedtrial Court has decided the
Specfic Rehef Act was ban-ed by law of limitation since he claimed to have been possessed from the suitproperty on 4" March. .986 but the suit for possession was led beyonds,x months from that date butthe suits,i.l could not bedismissed astime barred smce under Article 65 ofthe Limitation Act was attracted. Tlris rwlt l learned trial Courtobservedinpa«no. 7oftheimpugned order:
Ho.e,er. ,keplaimffkas base.Us claim on,Ulealso, .kick u
13.09.2011 I have heard counsel for both the paities.
The present revision is filed by the petitioner-defendant against the order of the learned trial Court whereby the preliminary issue of limitation framed in a suit for possession has been decided in favour of the plaintiff-respondent by concluding that though the suit under Section-6 of the Specific Relief Act was time barred having been filed beyond the period of six months from the date of dispossession of the plaintiff from the suit property but still the suit could not be dismissed since the plaintiff was claiming possession of the suit property also on the ground that he had become owner thereof by adverse possession.
The respondent - plaintiff filed a suit on 13/4/87 for possession labelling it as a
"Suit for possession under Section 6 of the Specific Relief Act", for getting back the possession of suit property from where he claimed to have been dispossessed illegally by the petitioner - defendant on 04/03/86. He paid ad valorem court fee on the valuation of the plaint at ? 700 for the purposes of Court fee and jurisdiction. The relevant averments in the plaint were made in para nos. 1,3,5 and 9 which are re-produced below:
C.R.P. 155/2010 Page 1 of4
2011:DHC:9182 r:r--S?=" Itwr{t,5£S5Sf The petitioner-defendant filed its written statement and took somepreliminaiy
Objecons inCding,Hatthe suitwas hopelessly time ba^ed. Onmerits, it was claimed ha m the year .980 the respondent -plaintiffwas given aroom on lieence basis for
M
'TlQsr He remained in possession upto 4® March, 1986onwhich datehehad voluntarilysurrenderedpossessionto it
The learned trial Cotm fr^ed an issue of limimtion and it was hreated as a pieliminary issue.
Vide impugnedorderdated 18^May, 2010 the learnedtrial Court has decided the
Specfic Rehef Act was ban-ed by law of limitation since he claimed to have been possessed from the suitproperty on 4" March. .986 but the suit for possession was led beyonds,x months from that date butthe suits,i.l could not bedismissed astime barred smce under Article 65 ofthe Limitation Act was attracted. Tlris rwlt l learned trial Courtobservedinpa«no. 7oftheimpugned order:
Ho.e,er. ,keplaimffkas base.Us claim on,Ulealso, .kick u
C.R.P.155/2010
Page 2 of4 alleged to have been acquired by adverse possession. In pra no. 1 and 3 the plaintiff has claimed that he has acquired right in the suit property by way of adverse possession. It is settledprinciple oflaw that it is the substance and not the form that matters. The said averment ofthe plaintiffcan be determined only afterfair opportunity is granted to the plaintifffor leadingplaintiffevidence and after the said evidence is evaluated and interpreted. Title based on adverse possession is mixed question offact and law which cannot be determined without the evidence is led by both the parties. It would be hazardous and unfair to pronounce the categorical opinion on the averments of the plaintiff without giving him an opportunity to establish his averments. The defendant has not denied that the plaintiff was in possession of the suit property before he was dispossessed i.e. on 4.3.86. The article 65 Limitation Act, 1963 provided limitation of12 yearsfor construction ofthe suit ofpossession based on adverse possession. The plaintiff's suit cannot be discarded at inception without giving him opportunity of proving that he has acquired right of possession in the property by way of adverse possession. Therefore, at this stage, defendant has failed to discharge his onus ofproving that the suit is barred by law oflimitation.
Therefore, the present preliminary issue is decided infavour ofthe plaintiffand ijr^ against the defendant.
The observations made while disposing of the present application shall not be considered as expression ofopinion ofmerits. "
Aggrieved by this order the petitioner has approached this Court.
It has been argued by the learned counsel for the petitioner that once the trial
Court had found the suit under Section 6 of the Specific Relief Act to be barred by time it had no jurisdiction to convert that suit into a title suit particularly when it was not even the clear case of the respondent-plaintiff that he had acquired ownership by adverse possession.
In my view, the learned trial Court was right in not dismissing the suit as time barred. The plaintiff had pleaded that he was in possession of the suit property for over sixteen years and had suddenly been dispossessed on 4/3/1986. In case, the suit for possession is filed within six months ftom the date of illegal dispossession of the plaintiff then the defendant caimot resist the suit on the ground that it was the lawful owner of the property in question and if the plaintiff succeeds in showing that he was dispossessed illegally within six months prior to the institution of the suit for possession then a decree
C.R.P. 155/2010 Page 3 of4 for possession has to follow. However, ifthe suit is filed after six months from the date of dispossessing but within 12 years, as is the case in hand, then certainly the defendant can resist it on the ground that it has a better title than the dispossessed person and if the defendant succeeds in proving that plea then even if the plaintiff was dispossessed forcibly the decree for possession would not be passed. However, the suit cannot be dismissed as time barred on the ground that it was not filed within six months from the date of dispossession. So, the petitioner-defendant here can still show that it is the legal owner of the suit property and so entitled to retain its possession and it would be for the trial Court to decide, after evidence, as to which ofthe parties has a better title.
This petition is thus devoid of merits and so it is dismissed.
P.K. BHASIN, J.
SEPTEMBER 13, 2011
Page 2 of4 alleged to have been acquired by adverse possession. In pra no. 1 and 3 the plaintiff has claimed that he has acquired right in the suit property by way of adverse possession. It is settledprinciple oflaw that it is the substance and not the form that matters. The said averment ofthe plaintiffcan be determined only afterfair opportunity is granted to the plaintifffor leadingplaintiffevidence and after the said evidence is evaluated and interpreted. Title based on adverse possession is mixed question offact and law which cannot be determined without the evidence is led by both the parties. It would be hazardous and unfair to pronounce the categorical opinion on the averments of the plaintiff without giving him an opportunity to establish his averments. The defendant has not denied that the plaintiff was in possession of the suit property before he was dispossessed i.e. on 4.3.86. The article 65 Limitation Act, 1963 provided limitation of12 yearsfor construction ofthe suit ofpossession based on adverse possession. The plaintiff's suit cannot be discarded at inception without giving him opportunity of proving that he has acquired right of possession in the property by way of adverse possession. Therefore, at this stage, defendant has failed to discharge his onus ofproving that the suit is barred by law oflimitation.
Therefore, the present preliminary issue is decided infavour ofthe plaintiffand ijr^ against the defendant.
The observations made while disposing of the present application shall not be considered as expression ofopinion ofmerits. "
Aggrieved by this order the petitioner has approached this Court.
It has been argued by the learned counsel for the petitioner that once the trial
Court had found the suit under Section 6 of the Specific Relief Act to be barred by time it had no jurisdiction to convert that suit into a title suit particularly when it was not even the clear case of the respondent-plaintiff that he had acquired ownership by adverse possession.
In my view, the learned trial Court was right in not dismissing the suit as time barred. The plaintiff had pleaded that he was in possession of the suit property for over sixteen years and had suddenly been dispossessed on 4/3/1986. In case, the suit for possession is filed within six months ftom the date of illegal dispossession of the plaintiff then the defendant caimot resist the suit on the ground that it was the lawful owner of the property in question and if the plaintiff succeeds in showing that he was dispossessed illegally within six months prior to the institution of the suit for possession then a decree
C.R.P. 155/2010 Page 3 of4 for possession has to follow. However, ifthe suit is filed after six months from the date of dispossessing but within 12 years, as is the case in hand, then certainly the defendant can resist it on the ground that it has a better title than the dispossessed person and if the defendant succeeds in proving that plea then even if the plaintiff was dispossessed forcibly the decree for possession would not be passed. However, the suit cannot be dismissed as time barred on the ground that it was not filed within six months from the date of dispossession. So, the petitioner-defendant here can still show that it is the legal owner of the suit property and so entitled to retain its possession and it would be for the trial Court to decide, after evidence, as to which ofthe parties has a better title.
This petition is thus devoid of merits and so it is dismissed.
P.K. BHASIN, J.
SEPTEMBER 13, 2011
CR.P. 155/2010 Page 4 of4
JUDGMENT