Full Text
HIGH COURT OF DELHI
Date of Decision: 25.07.2024
SH. SUMIT GAHLOT & ORS. .....Plaintiffs
Through: Mr.Pankaj Vivek and Mr.Himanshu Chugh, Advs.
Through: Mr.S.S. Panwar, Ms.Nivedita Panwar, Mr.Ravi Panwar, and
Ms.Punam Singh, Advs. for D-1 (through VC)
Mr.Pankaj Vivek and Mr.Himanshu Chugh, Advs. for
D-1 to D-4 in counter claim.
Mr.Sharat Kapoor, Mr.Anirudh Dusaj and Mr.Shubh Kapoor, Advs. for D-2 in suit & D-5 in counter claim. (through VC)
Ms.Sharmistha Choudhury, Adv. for D-2 (through VC)
Mr.R.K. Ruhil, Adv. for D-3 in Suit and for D-6 in counter claim.
Mr.Sharad Malhotra, Adv. for D-9 & D-10 (through VC)
JUDGMENT
1. This application has been filed by the plaintiffs, praying for dismissal of the Counter Claim filed by the defendant no.1/Counter Claimant.
2. In this application, the plaintiffs assert that the Counter Claim of the defendant no.1/Counter Claimant is based on the plea of the defendant no.1 being in adverse possession of one of the Suit Properties, that is, residential plot measuring 9 Biswas (450 Sq. Yds.) of Khasra No. 245 of Khata No. 245/247 min., situated in extended Lal Dora of village Mitraon, New Delhi, which is not sustainable in law and, therefore, the Counter Claim is liable to be dismissed. Factual Background:
3. The captioned Suit has been filed by the plaintiff inter alia praying for a decree of partition of the Suit Properties claiming the same to be the properties of a Hindu Undivided Family (in short, HUF). The plaintiffs assert that the Suit Properties were possessed by the late Sh. Prithvi Singh as the Karta of the HUF, and the plaintiffs are the coparceners of the said HUF. The reliefs sought by the plaintiffs through the present Suit are as under: “a) Pass a preliminary decree of partition thereby declaring the 38/147 share of the plaintiffs jointly in the suit properties detailed hereunder: i. Land in revenue estate of Village Mitraon, Delhi bearing Kh. No. 38//6/2(0- 13), 7/2(3-8), 8/1(3-4), 13(4-16), 18(4- 16), 23/1(1-2), 44//13/3(1-4), 14/2(2-8), 15/2(2-8), 16(4-16), 17(4-16) and 18/1(0- 14), 45//11/2(2-0), 20(4-16) admeasuring 41 Bighas and 1 Biswa. Since the land is assessed to land revenue, hence the land can be identified by Khasra No's/revenue records. ii. Kayami residential plot of land bearing Kh. No.208/2 (0-4) i.e. about 200 sq. yds. situated in abadi of Village Mitraon, Delhi. Copy of Aks Shizra of Kh.No. 208/2 is filed with plaint. iii. Kayami residential plot of land bearing Kh. No. 209 (7-2) i.e. about 7,100 sq. yds. situated in abadi of Village Mitraon, Delhi. Copy of Aks Shizra of Kh. No. 209 is filed with plaint. iv. Kayami residential plot of land bearing Kh. No. 245 (0-9) i.e. about 450 sq. yds. situated in abadi of Village Mitraon, Delhi. Copy of Aks Shizra of Kh. No.245 is filed with plaint. v. Old Laldora Abadi house bearing House No. 224 built on a plot of land admeasuring 110 sq. yards in abadi of Village Mitraon, Delhi. Site plan filed with plaint as Site Plan „A‟. vi.Old Laldora Abadi plot admeasuring about 600 sq. yds. in Kh. No. 115 min. of abadi of Village Mitraon, Delhi. Site Plan filed with plaint as Site Plan 'B'. vii. Old Laldora Abadi plot admeasuring 110 sq. yds. in Kh. No. 115 min. of abadi of Village Mitraon, Delhi. Site Plan filed with plaint as Site Plan „C‟. viii. Residential Plot bearing No. 258 admeasuring about 1865 sq. mtrs. carved out of Khasra No. 476 of Village Mitraon, presently known as colony named as A- Block, Gopal Nagar, Najafgarh, Delhi
110043. Site Plan of plot is filed with plaint is Site Plan 'D'. b) Pass a final decree of partition by separating the 38/147 share of the plaintiffs in the suit properties detailed above by metes and bounds; and c) Pass a decree of partition by sale of the suit properties and division of the sale proceeds between the parties as per their share if the partition by metes and bounds is not deemed to be feasible for any reason; and d) Decree the costs of the suit in favour of the plaintiffs.”
4. In the said Suit, the defendant no.1 filed the abovementioned Counter Claim, being CC No. 21/2019, inter alia, praying for a decree of declaration in favour of the defendant no.1/Counter Claimant to the effect that the defendant no.1/Counter Claimant has acquired the title of ownership of one of the Suit Properties, that is, residential plot measuring 9 Biswas (450 Sq. Yds.) of Khasra No. 245 of Khata NO. 245/247 min., situated in extended Lal Dora of village Mitraon, New Delhi, by way of adverse possession. The relief sought by the defendant no.1/Counter Claimant is as under: “(A) pass a decree of declaration in favour of the defendant No.l/counter claimant to the effect that the defendant No.l/counter claimant has acquired and perfected his title of ownership of the following subject property by way of adverse possession and prescription being in long settled, uninterrupted, unchallenged, continuous, exclusive physical possession, use and enjoyment thereof for last more than twelve years against the plaintiffs and the defendants No.2 to 13 and to their knowledge as has been pleaded above by the deft. No.l:-
(i) Residential plot measuring 9 Biswas
(450 Sq. Yds.) of Khasra No. 245 of Khata No. 245/247 min., situated in extended Lal Dora Abadi (Firni) of village Mitraon, New Delhi, which is shown in red colour in site plan-D filed with the counter claim; (B) pass a decree of permanent injunction in favour of the defendant No.l/counter claimant and against the plaintiffs and the defendants No.2 to 13, thereby restraining them and their agents, attorney(s), associates, workmen, employees, functionaries or any person claiming through/under them or acting for and on their behalf from illegally selling, transferring, disposing of and/or alienating any part/portion of the following properties/land subject matter of the present counter clalm:-
(i) Residential plot measuring 9 Biswas
(450 Sq. Yds.) of Khasra No. 245 of Khata No. 245/247 min., situated in extended Lal Dora Abadi (Firni) of village Mitraon, New Delhi, which is shown in red colour in site plan-D filed with the counter claim;
(ii) Agricultural lands comprised of Khasra
NOs.38//6/2 (0-13), 7/2 (3-8), 8/1 (3-4), 13 (4-16), 18 (4-16), 23/1 (1-2), 44//13/3 (1-4), 14/2 (2-8), 15/2 (2-8), 16 (4-16), 17 (4-16), 18/1 (0-14), 45//11/2 (2-0), 20 (4-16), total measuring 41 Bighas and 1 Biswas of khata khatoni No. 243/247 min., situated in revenue estate of village Mitraon, New Delhi; and further restraining them from interfering in any manner in the exclusive peaceful possession, use and enjoyment of the defendant No.l/counter claimant over the above said property/land in the facts and circumstances of the case in the interest of justice.”
5. The defendant no.1/Counter Claimant in the said Counter Claim, has asserted that late Sh. Prithvi Singh was in the exclusive physical possession of the said Property till the same was transferred to the defendant no.1/Counter Claimant, his wife, and his two sons, vide the alleged five Sale Deeds dated 11.01.2005, 13.01.2005, 20.01.2005, 20.01.2005, and 07.02.2005, and a Will dated 28.02.2005. It is also averred that the defendant no.1/Counter Claimant came into the actual physical possession of the subject land property on 27.04.2011, that is, only after the demise of late Sh. Prithvi Singh, and thereby claims to have accrued the right of adverse possession. I may reproduce the relevant averments of the defendant no. 1 in his Counter Claim, herein below: “Therefore, Shri Prithvi Singh was and remained in exclusive physical possession of the subject properties/land till the same were transferred and bequeathed by him in favour of the defendant No.1, his wife and sons by virtue of the above said five sale deeds and Will dated 28.02.2005 as has been explained by the counter claimant / defendant No.1. Hence, there was no occasion for the plaintiffs, defendants No.2 to 10 or any other person whosoever to have joint possession of the subject properties/land or any portion thereof with Shri Prithvi Singh or defendant No.1, his wife and sons at any point of time.” ********* “….Hence, the defendant No.1, his wife and his sons have acquired the Bhumidhari rights of the subject lands under section 85 of the Act, as the plaintiffs, the defendants No. 2 to 13 have failed to take or initiate any action/ proceeding for ejectment of the defendant No.1, his wife and his sons within three year from 27.04.2011, which has expired on 27.04.2014, despite their full knowledge of the exclusive cultivatory possession of the defendant No.1, his wife and his sons, who have been occupying the subject land even during the life time of Shri Prithvi Singh and after his death, they have legally come into actual physical possession of the land from 27.04.2011 till date.” (Emphasis Supplied) Submissions of the learned counsel for the plaintiffs:
6. The plaintiffs assert that the claim of exclusive possession of the Suit Property of the defendant no.1/Counter Claimant stems from the alleged five Sale Deeds dated 11.01.2005, 13.01.2005, 20.01.2005, 20.01.2005 and 07.02.2005 allegedly executed by the father of the plaintiffs and the defendant no.1, late Sh.Prithvi Singh, in favour of the defendant no.1, his wife, and his two sons. These Sale Deeds were declared null and void by an Order dated 31.03.2018 passed by the learned Additional District Judge-03, South-West District, Dwarka Courts in Civil Suit No.16185/2016 titled Shri Sumit Gahlot & Ors. v. Prithvi Singh & Ors., decreeing the Suit of the plaintiffs with the following relief: “20. Relief:- Plaintiffs‟ suit is therefore decreed and five sale deeds referred in prayer clause (a) of the plaint (reproduced in pаrа nо. 2.[6] of judgment) are declared illegal, null and void without any authority which sham transactions do not confer any right upon defendants no. 1 and 2 in respect of properties mentioned therein. Plaintiffs, in addition, are also entitled to protect their right in coparcenary / HUF property as sought in prayer clause (b), (c) and (d) of the plaint and defendants are therefore restrained from selling, alienating, encumbering, transferring or creating any third party interest in the ancestral land (property) and are also restrained from interfering in the use and enjoyment of ancestral property as sought in prayer clause (d). Parties to bear their own costs.” (Emphasis supplied)
7. The above judgment and decree was upheld, first by this Court in appeal by a Judgment dated 28.05.2018 passed in RFA No.456/2018 titled as Yoginder Singh & Anr. v. Sumit Gahlot & Ors., reiterating that the Suit land was a HUF property and the Sale Deeds dated 11.01.2005, 13.01.2005, 20.01.2005, 20.01.2005 and 07.02.2005 allegedly executed by the father of the plaintiff and the defendant no.1, late Sh.Prithvi Singh, in favour of the defendant no.1, his wife and his two sons, were rightly declared illegal, null and void. The Special Leave Petition, being SLP(Civil) No.25079/2018 titled Yoginder Singh & Anr. v. Sumit Gahlot & Ors., was also dismissed by the Supreme Court vide its Order dated 08.05.2019.
8. The plaintiffs assert that as the defendant no.1/Counter Claimant was claiming possession of the Suit Property only on basis of the Sale Deed, which plea was rejected by the Court, he cannot be allowed to claim adverse possession.
9. The learned counsel for the plaintiffs submits that in its counter claim, the defendant no.1’s own case is that late Sh.Prithvi Singh, father of the plaintiff and the defendant no.1, had remained in the exclusive possession of the Suit Property till the same was transferred and bequeathed in favour of the defendant no.1, his wife, and his two sons. He submits that the alleged Sale Deeds were challenged by the plaintiffs immediately on their execution, therefore, the plea of adverse possession cannot sustain. Submissions of the learned counsel for the defendant no.1/counter claimant:
10. The learned counsel for the defendant no.1/Counter Claimant, on the other hand, submits that the counter claimant is also entitled to claim adverse possession of the suit property on the basis of the Will dated 28.02.2005 left behind by the father of the defendant no.1, late Sh. Prithvi Singh. He submits that the said Will has been challenged only recently and as an afterthought. Analysis and Finding:
11. I have considered the submissions made by the learned counsels for the parties.
12. As is evident from the reading of the Judgments of the learned Trial Court dated 31.03.2018, and of this Court dated 28.05.2018, referred hereinabove, the defendant no.1 was claiming title to the Suit Property on the basis of the alleged Sale Deeds executed by his father, late Sh.Prithvi Singh. The said Sale Deeds have been declared as null and void by the above Judgments. The defendant was also restrained from interfering with the joint possession of plaintiffs as a coparcener in the HUF. The possession of a HUF property of a coparcener is the possession of the other as well. The same cannot, therefore, entitle the defendant no.1 to claim an adverse title to the Suit Property. In fact, the Sale Deeds, on basis of which the defendant no. 1 was claiming exclusionary possession, had been challenged almost immediately on their alleged execution, and were ultimately found to be illegal. Plea of adverse possession thereafter would be mutually distructive plea of the defendant no. 1 and has no legs to stand on.
13. The Supreme Court in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors., (2007) 6 SCC 59, has held that the plea of possession based on title and adverse possession are mutually inconsistent, and the latter does not begin to operate until the former is renounced. The Supreme Court held as under:
remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.‟” (Emphasis supplied)
14. The Kerela High Court in P.S. George v. Balakrishnan & Ors., 2014:KER:31786, has further held that the pleas on title and adverse possession are not simultaneously maintainable and such pleas cannot be made alternatively; if one plea is rejected, the party cannot seek benefit under the alternative plea.
15. Till 2019, the defendant no. 1 was claiming exclusionary possession of the Suit Property as a owner thereof. The same having failed with the passing of the order by the Supreme Court and, in fact, the Suit having been decreed with a direction prohibiting the defendant no. 1 from interfering in the use and occupation of the ancestral properties by the plaintiffs, the claim of adverse possession cannot be maintained and is liable to be dismissed at the threshold itself.
16. Reliance of the learned counsel for the defendant no.1 on the alleged Will dated 28.02.2005 left behind by late Sh.Prithvi Singh, also cannot come to the aid of the defendant no.1/Counter Claimant. Admittedly, late Sh.Prithvi Singh died only on 27.04.2011; the said Will cannot come into operation till his death. As noted hereinabove, the challenge to the alleged Sale Deeds was finally settled by the Supreme Court vide its Order dated 08.05.2019, and it was held that the Suit Property belongs to the HUF and that late Shri Prithvi Singh had no right to transfer the same. The present Suit was filed by the plaintiffs on or about 27.03.2019. Therefore, the claim of the defendant no.1/Counter Claimant to adverse possession cannot survive and is not maintainable. Conclusion:
17. Accordingly, the application is allowed. The Counter Claim, that is, CC No. 21/2019 filed by the defendant no.1, is dismissed.
18. Upon hearing the learned counsels for the parties, the following issues are framed:i. Whether the Suit is not properly valued for purposes of court fee? OPD ii. Whether the Suit is barred by Section 185 of the Delhi Land Reforms Act, 1954? OPD iii. Whether the Suit is barred by limitation? OPD iv. Whether the Suit is liable to be dismissed for non-joinder of necessary parties? OPD v. Whether the Suit is barred by operation of Order II Rule 2 of the Code of Civil Procedure, 1908? OPD vi. Whether the daughters of late Shri Prithvi Singh, who passed away on 27.04.2011, have the legal status of coparceners and thereby entitled to claim partition and equal rights in the joint family/HUF property under the Hindu Succession Act, 1956, as amended in 2005? OPD vii. Whether Ms. Kavita is entitled to inherit the share of late Sh. Vijender Singh S/o late Sh. Prithvi Singh? OPD viii. Whether Shri Prithvi Singh was incompetent to bequeath the Suit Properties by Will dated 28.02.2005? OPP ix. Whether the plaintiffs are entitled to partition of the Suit Properties? If so, in what share? OPP x. Relief.
19. The parties shall file their respective list of witnesses within a period of four weeks from today.
20. The plaintiffs shall file evidence by way of affidavit of their witnesses within a period of four weeks thereafter.
21. List on 24th October, 2024 before the learned Joint Registrar (Judicial). I.A. 11570/2019 & I.A. 7265/2022
22. Interim Orders to continue.
23. List before the Court on 20th November, 2024.
NAVIN CHAWLA, J JULY 25, 2024/ns/VS Click here to check corrigendum, if any