Full Text
HIGH COURT OF DELHI
Date of Decision: 06.09.2024
39982/2024 SANJAY GOYAL .....Appellant
Through: Mr. Sanjeev Anand, Sr. Adv.
Through: Ms. Sonali Malhotra, Adv.
JUDGMENT
1. This is an Application filed by the Appellant seeking stay on the execution of the Judgement and Decree dated 25.07.2023 passed by the ADJ-04, North-West, Rohini Court, Delhi in CS DJ 578059/2016 [hereinafter referred to as “Impugned Judgement”].
2. By the Impugned Judgement, the learned Trial Court has partly decreed the Suit for Possession, Damages and Permanent Injunction filed by the Respondent in respect of Property No. BF-21, Shalimar Bagh, Delhi [hereinafter referred to as “suit property”]. The relief of permanent injunction and damages has been allowed, and the learned Trial Court has directed Appellant to pay damages to Respondent in tune of Rs 5,40,000 and additionally pay her Rs 15,000 per month, from the date of filing of the suit till the time he remains in occupation of suit property. However, the relief of possession sought for by Respondent has been dismissed as being time barred.
3. Being aggrieved by the Impugned Judgment, both Appellant and Respondent have filed their respective Appeals before this Court. The Appeal of the Respondent is listed as Smt Shanti Devi v. Sanjay Goyal in RFA 950/2023 [hereinafter referred to as Respondent’s Appeal]. Both the present Appeal and the Respondent’s Appeal are being heard together by this Court.
4. Execution proceedings were initiated by Respondent before the Executing Court for the recovery of the damages/mesne profits as awarded by the Impugned Judgment. Since attachment orders have already been issued by the Executing Court on 09.02.2024, the Appellant has prayed for a stay on the Execution proceedings during the pendency of these proceedings.
5. The brief facts necessary for adjudication are: 5.[1] Respondent is the registered owner of the suit property by virtue of a Conveyance Deed dated 27.12.2005 executed by the DDA. Undisputedly, Appellant obtained physical possession of the subject premises in the year 1990-1991, from Respondent, however, the circumstances of obtaining the said possession have been controverted by both the parties. While Appellant avers that the possession of the suit property was obtained, as Appellant purchased the suit property from Respondent, Respondent avers that Appellant was given the possession of the suit property for his residence, as he was the nephew of her husband, and as such Appellant was permitted possession of the suit property on a license basis. 5.[2] On 05.04.2011, Respondent filed a suit for possession, damages and permanent injunction. It was contended that, despite serving a notice dated 10.01.2007 terminating the license, Appellant did not vacate the premises. 5.[3] The learned Trial Court framed the following issues on 05.07.2013:
(i) whether the suit was time barred;
(ii) whether the Conveyance Deed dated 27.12.2005 held by the Plaintiff/Respondent in respect of the suit property was obtained through fraud; and
(iii) whether the Respondent was entitled to a decree of possession of the suit property and decree of mesne profits, damages and future mesne profits, from the Defendant/Appellant and Respondent’s entitlement to a permanent injunction. 5.[4] The learned Trial Court found that although Respondent is the recorded owner of the property, her claim for possession was barred by limitation. However, the learned Trial Court ruled in her favor by awarding damages/mesne profits for the period from the date of filing the suit till the time Appellant remains in occupation of the suit property and also granted a permanent injunction preventing Appellant from transferring the property to a third party. Submission of Appellant
6. Learned Senior Counsel appearing for Appellant, submits that the ownership of suit property vests with Appellant by virtue of adverse possession and a finding in this behalf has been even recorded in the Impugned Judgement, therefore, the learned Trial Court has erred in granting the damages/mesne profits to Respondent, on account of her being the recorded owner. 6.[1] It is submitted that the learned Trial Court decided the issue of limitation in favour of Appellant, holding that Appellant's possession became adverse to the Plaintiff/Respondent after 12 years from 1994/1995, when she orally terminated the license. The said termination was admitted by Respondent in her cross-examination before the learned Trial Court dated 22.11.2013 and as such, the suit filed in 2011 was beyond the prescribed period of limitation. It is further submitted that even in the Written Statement filed before the learned Trial Court, it was pleaded that the suit was barred by limitation, i.e. Article 65 and 66 of the Schedule of the Limitation Act, 1963 [hereinafter referred to as “Limitation Act] as Appellant has asserted open, hostile and adverse possession for more than 21 years. 6.[2] Learned Senior Counsel for Appellant has placed reliance on the judgement of Supreme Court in Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.[1] to submit that the right of the original owner of the property extinguishes once the period prescribed for adverse possession is attained. It is argued that by the law of adverse possession, Appellant is the owner of the suit property and cannot be made to pay damages or future rent for using his own premises. 6.[3] Learned Senior Counsel for Appellant, further submits that it is settled law that damages cannot be granted for mere asking, and damages as requested are to be established by the party seeking such future damages as rent. Reliance is placed on the judgement of Division Bench of this Court in National Radio & Electronic Co. Ltd. v. Motion Pictures Association.[2] to submit that for a party to be entitled for future damages as rent, evidence is required to be led to establish the facts, on the basis of which the damages can be quantified by a competent Court. It is submitted that in the present instance, no such evidence was led by Respondent, to be entitled to the damages and future rent as granted by the learned Trial Court. Submission of Respondent
7. Learned Counsel for Respondent, in the first instance disputes that Appellant had attained any rights over the suit property by means of adverse possession. It is submitted that before the learned Trial Court, the defence of Appellant was built upon the contention that he has come into the possession of the suit property by purchasing it, although, the learned Trial Court found that Appellant could not
22005 SCC OnLine Del 675 establish any evidence to support this contention. Learned Counsel seeks to rely upon the Registered Conveyance Deed dated 27.12.2005 executed in favour of the Respondent [Ex.PW-1/1]. 7.[1] Learned Counsel further contends that the suit filed in 2011 was not barred by limitation since the limitation for filing a suit under Article 65 and 66 of Schedule to the Limitation Act is 12 years and once the notice was sent in 2007 to Appellant, the suit filed in 2011 was clearly in time. 7.[2] Learned Counsel for Respondent submits, that for a stay as is sought on a money decree, as per Order XLI Rule 5 of Civil Procedure Code, 1908 [hereinafter referred to as “CPC”], Appellant is required to deposit the decretal amount with this Court in lieu of the stay sought on the executing proceedings. It is further submitted that, Respondent, is an aged widow, who has not reaped any benefits from her property for decades, and at present there is an urgent requirement of money by Respondent for her medical expenses. The Impugned Judgement has been obtained after a protracted litigation and full-fledged trial, where in express terms it has been held that Respondent, is the recorded owner of the suit property. 7.[3] Learned Counsel for Respondent places reliance on Malwa Strips (P) Ltd. v. Jyoti Ltd.3, to submit that usually unless an Appellant makes the required deposit or provides the necessary 3(2009) 2 SCC 426 security, an order of stay of enforcement of a decree shall not be passed. 7.[4] Learned Counsel for Respondent, has contended in its Reply filed before the Executing Court, that the Appellant had made without a prejudice offer of payment in sum of Rs 10,00,000/- to the Respondent and had even produced 2 cheques of Rs 5,00,000/- each, which were handed over to Respondent. However, both cheques were dishonoured upon presentation.
8. Appellant has filed the present application inter alia seeking the following reliefs: “(a) Stay the execution of impugned judgement dated 25.07.2023 passed by Sh. Sunil Chaudhary, Ld. ADJ-04 North West District Rohini Courts, New Delhi, in CS No.578059/2016, titled as “Shanti Devi v. Sanjay Goyal,”
9. Respondent has filed a Reply setting out that an Application under Section 151 of the CPC is not maintainable and what is required to be filed, would be an Application under Order XLI Rule 5 of CPC which provides for stay of execution by an Appellate Court. In addition, learned Counsel for Respondent contends that by the Impugned Judgment, the learned Trial Court has directed that the following amounts are due:
(i) Arrears of Damages: Rs. 5,40,000/-;
(ii) Monthly mesne profits at the rate of 15,000 per month from 05.04.2011 till 03.05.2024, in the sum of Rs. 23,55,000/-.; and
(iii) Costs of the Suit Rs. 59,521/-;
10. It is, thus, contended by the learned Counsel for Respondent that directions be passed for the deposit/payment by Appellant of the sum of Rs. 29,54,521/- for grant of a stay of execution proceedings.
11. A stay of proceedings and of execution before an Appellate Court are governed by the provisions of Order XLI Rule 5 of CPC. The relevant extract of this provision reads as follows: “(1) xxxx (2) Stay by Court which passed the decree.—Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied— (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) xxxx (5) Notwithstanding anything contained in the foregoing subrules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.]” 11.[1] The provision provides for an Appellate Court to stay the execution of a decree on sufficient cause being shown. Order XLI Sub-rule (3) of Rule 5 of CPC provides that an order of stay of execution shall not be made unless the Court is satisfied that substantial loss may result to a party applying for such stay, if the stay is not provided and security has been given by the Applicant for due performance of the decree. Sub-rule 5 of Rule 5 of Order XLI of CPC further provides that where the Appellant fails to make a deposit as directed under Order XLI Rule 5, Sub-rule 3 of CPC, a stay shall not be granted by the Court.
12. It is no longer res integra that an Appellate Court can put an Appellant on such reasonable terms as would compensate, the decree holder. It has been held that an order for stay of execution of the decree is not undertaken unless security amount for due performance is deposited by the Appellant. The Supreme Court in Malwa Strips case has set out the prerequisite for a grant of stay by an Appellate Court under Order XLI Rule 5. In addition to setting out that for a stay to be granted, sufficient cause to is be shown, the Supreme Court also set outs that an exceptional case has to be made out, for stay of a money decree. The Supreme Court has held that:
filing of the appeal. But while granting stay of the execution of the decree, it must take into consideration the facts and circumstances of the case before it. It is not to act arbitrarily either way. If a stay is granted, sufficient cause must be shown, which means that the materials on record were required to be perused and reasons are to be assigned. Such reasons should be cogent and adequate. xxxx
14. Even if the said provision is not mandatory, the purpose for which such a provision has been inserted should be taken into consideration. An exceptional case has to be made out for stay of execution of a money decree. The parliamentary intent should have been given effect to. The High Court has not said that any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decretal amount or a part of it and/or directly through the judgmentdebtor to secure the payment of the decretal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in its entirety.” [Emphasis supplied]
13. In the present case, a money decree has been passed by the learned Trial Court for payment of mesne profits and damages by Appellant to Respondent. Any stay of proceedings before the Execution Court granted by this Court, will inure the benefit to Appellant and, thus, he is required to furnish security as is requisite under the provisions of Order XLI Rules 5 (3) and (5) of the CPC.
14. A plea of acquisition of ownership of the property has been raised as a defence by the Appellant. The Respondent, on the other hand, contends that the Appellant was inducted as a licensee in the suit property and was granted the right to use the same until the licence was terminated by the Respondent through the legal notice dated 10.01.2007. While a licensee’s induction is lawful, his continued occupation post termination of the licence is of a trespasser. Upon termination of a licence, the licensee has no right to continue occupying the premises as the possession always remains with the licensor. 14.[1] The Appellant has contended that his continuous possession even after termination of the licence entitles him to claim title to the suit property by virtue of adverse possession. This Court is unable to agree with this Contention. The Supreme Court in Gaya Parshad Dikshit v. Dr. Nirmal Chander And Another[4] observed that the continuation of possession by the licensee after the termination of the licence does not entitle the licensee to claim title by adverse possession. For such a claim to be valid, the licensee must demonstrate some overt act indicating an assertion of hostile title against the licensor. The mere fact that the licensor has not initiated legal action to recover possession does not suffice to establish adverse possession. The relevant extract reads as under: “We have heard the learned counsel on behalf of the appellant and after hearing him and perusing the judgment of the High Court, we find ourselves wholly in agreement with the view taken by the High Court that mere termination of the licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. Here in the present case there is nothing to show that at any time after termination of his licence by Dr Rama Shanker or by the first respondent the appellant asserted hostile title in himself. The High Court was, therefore, right in taking the view that the appellant had not established any title by adverse possession and in that view of the matter, the suit of the first respondent for recovery of possession of the premises from the appellant was not barred under Article 65 which is the only article of the Limitation Act, 1963 applicable in the present case. We accordingly confirm the judgment of the High Court and dismiss the appeal.”
15. The facts as obtaining in the present case are that there are no pleadings to show proof of payment of any money paid by Appellant to Respondent for the suit property. In addition, even though, Appellant has been in occupation of the suit property from the year 1991, no overt acts have been undertaken by Appellant denying the title of Respondent. On the other hand, the title for the suit property was perfected by Respondent during this period and a registered Conveyance Deed was executed by the DDA in favour of Respondent on 27.12.2005, protecting her rights in the suit property. Despite the knowledge of the registered conveyance deed in favour of the Respondent, no steps were taken by Appellant seeking cancellation of such document and, undisputedly, the conveyance deed is valid and subsisting as on date.
16. Appellant has cited the judgement of the Supreme Court in Ravinder Kaur case to contend that his title to the subject premises has been perfected since Appellant has been in continuous possession of the suit property, which is open and hostile to Respondent and as per the Ravinder Kaur case, he has become the owner of suit property by adverse possession. 16.[1] The Supreme Court in the Ravinder Kaur case has held that although the statute does not define adverse possession, it is a common law concept. It has been held to be a negative right by which an acquisition of title occurs in favour of one party through the extinguishment of the right of the owner to the property. The relevant extract is below:
16.[2] It has further been held in the Ravinder Kaur case that for an adverse possession to be established, three requirements need to coexist at the same time in the following manner: “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.”
17. Although, Appellant has contended that he has obtained a title to the suit property by adverse possession, no proceedings in accordance with law were filed by him. Except for alleging that Appellant has been living in the suit property denying the title of Respondent and which is hostile to Respondent, no other steps have been taken by Appellant to perfect his title to the suit property. 17.[1] There is another fact which shows the complacency of the Appellant. The record shows that the proceedings were initiated by the wife of Appellant, i.e. Meenakshi Goyal against Respondent for obtaining electricity connection in their name for the suit property being W.P.(C) 1576/2011 [hereinafter referred to as the “Writ Petition”] in the year 2011. It was further alleged by the wife of the Appellant in these proceedings that Respondent, is their aunt, and mischievously in the year 2007 got leasehold rights of the suit property, and had even mutated the electricity connection in her name, and was attempting to disconnect the electricity connection to the suit property. It is apposite to extract paragraph 2 and 3 of the order dated 09.03.2011 passed in the Writ Petition – which is below: “2. The petitioners claim to be in possession of Property No. BF-21, Shalimar Bagh (East), Delhi for the last 20 years. It is claimed that the electricity connection in the said property was in the name of one Sh. N.K. Sethi, though the petitioners have been paying the bills for the last 20 years. It is further claimed that the respondent no.2 who is aunty of the petitioners has mischievously in the year 2007 got leashold in her name and on the basis thereof, got the electricity connection mutated in her name. It is contended that the respondent no.2 has now applied to the respondent no. 1 for disconnection of the said electricity connection. This writ petition has been filed to restrain the respondent no. 1 from doing so and alternatively for the relief of grant of new electricity connection in the name of the petitioners in the said house.
3. The counsel for the respondent no.1 appears on advance notice and contends that since title to the property since the year 2007 is admittedly not of the petitioners and the connection also stands mutated to the name of the respondent no.2 since the year 2009, the petitioners have no right to interfere with the disconnection at the instance of the recorded consumer.” 17.[2] The order shows a clear admission of the relationship between the parties and the fact that Appellant was aware of the fact that Respondent has perfected her title by a registered Conveyance Deed in the year 2007 itself. Despite this knowledge, the only action which was admittedly taken was only taken by the wife of Appellant by filing a Writ Petition for reconnection of the electricity to the suit property which was disconnected by the statutory authority for nonpayment of electricity bills. 17.[3] By an order dated 15.03.2011 in the Writ Petition, directions were passed for restoration of the electricity connection qua the suit property. It was further recorded in this Writ Petition that the Respondent shall be informed of the intention to vacate at least 1 month prior to the vacation of the suit property. It is apposite to extract paragraph 8(e) of the order dated 15.03.2011 passed in the Writ Petition which reads as follows: “8(e) The petitioners through counsel undertake to inform to the respondent no.1 at least one month in advance of their intent to vacate the premises. The said undertaking of the Petitioners is accepted and they are ordered to be bound by the same.”
18. Thus, quite clearly the stand of Appellant even in 2011, was that of a tenant/licensee and not an owner of the suit property. Soon thereafter, action was taken by Respondent on 04/05.04.2011 qua the suit property. In fact, it is immediately after the order was passed in the Writ Petition that the Respondent filed the present suit.
19. Article 65 of the Schedule to the Limitation Act, provides that a suit for recovery of possession of an immovable property based on title can be filed within 12 years from the date when the possession of the ‘defendant’ became adverse to the ‘plaintiff’ in the following terms: Section Description of Suit Period of limitation Time from which period begins to run
65. For possession of immovable property or any interest therein based on title. Explanation:- ….. Twelve years When the possession of the defendant becomes adverse to the plaintiff
20. In view of the aforegoing discussions, prima facie, the suit filed in April 2011 appears to be within limitation.
21. The learned Trial Court has found that the damages and mesne profits at the rate of 15,000/- per month from 05.04.2011 onwards are due. Learned Senior Counsel of Appellant has relied on National Radio case to contend that no evidence has been placed on record with respect to the mesne profits. 21.[1] The reliance by the Appellant on the National Radio case is misplaced. The challenge in the said case was with respect to an observation by the learned Trial Court that it could take judicial notice of prevalent market rates of rent of different areas in Delhi as the Court had been routinely deciding similar suits of mesne profits and damages in respect of different areas. These observations were made in a proceeding between the landlord and tenant where an issue was framed as to what rate the Plaintiff would be entitled to claim mesne profits and damages. In such scenario, the Court made the following observations:
21.[2] In support of her contentions qua mesne profits, Respondent had filed, before the learned Trial Court, a Rent Agreement dated 11.02.2011 of a similarly situated premises showing a rental of Rs. 11,000/- per month for a second floor premises. It was contended that the suit property is on the ground floor, thus, the rental amount will be higher. Accordingly, the mesne profits/damages have been ascertained by the learned Trial Court based on a contemporaneous document which was placed on record. The certified copy of the rent agreement was annexed as PW-1/11 and is on record. Thus, the evidence for the same had been provided by Respondent before the learned Trial Court. The mesne profits/damages at the rate of Rs.15,000/- per month has been calculated up to 03.05.2024 amounting to Rs. 23,50,000/-, as has been decreed.
22. The Respondent is claiming title of the suit property through a registered Conveyance Deed which is valid and subsisting and on the basis of which a decree for mesne profits has been passed after a prolonged trial. The Appellant has sought for interim directions to keep the decree in abeyance during the adjudication of his Appeal before this Court. The Appellant is required to furnish security during the adjudication of the Appeal, in terms of Order XLI Rule 5(3) CPC.
23. In view of the aforegoing discussions, this Court deems it apposite to pass the following directions:
(i) Subject to deposit of a sum of Rs. 20,00,000/- with the
Registry of this Court within six weeks, the Impugned Judgment shall be kept in abeyance till a final decision in this Appeal.
(ii) It is clarified that in the event the payment is not made within six weeks, the interim protection shall automatically stand dissolved.
(iii) The Appellant shall continue to make the payment to the
Respondent in the sum of Rs. 15,000/- per month during the pendency of the Appeal. The monthly payment shall be made on or before the 10th day of each calendar month commencing September, 2024.
24. The Application is disposed of in the aforegoing terms.
25. It is clarified that the observations made in this Order are solely in the context of the Appellant’s claim for interim protection.