Shri Atul Chander Paul & Anr. v. Smt. Satish Paul & Ors.

1. The present appeal has been filed against the order dated 23rd March, 2023 passed by the learned Single Judge in Ex. APPL. (OS) 390/2022 in Execution Petition No. 50/2021. By way of the impugned order, the learned Single Judge has dismissed the objections preferred by appellants herein to the execution proceedings instituted in respect of a final decree of partition dated 05th November, 2019 pertaining to property bearing no. R-496, New Rajender Nagar, New Delhi (‘suit property’).

2. The facts as canvassed by the appellants are as follows: 2(i) The suit property was originally applied for in the name of late Sh. Ram Bheja Mal, as a displaced person in lieu of the properties left by the family in Pakistan after partition. The said late Sh. Ram Bheja Mal expired prior to the allotment/registration of the suit property in his name. His three sons, namely, late Sh. Prakash Chander Khetrapal, late Sh. Jagdish Chander Paul and late Sh. Ramesh Chander Paul jointly contributed funds to acquire the suit property. After the demise of their father, late Sh. Ram Bheja Mal, it was decided that the suit property would be acquired in the name of late Sh. Jagdish Chander Paul. Thus, the suit property was allotted in the name of late Sh. Jagdish Chander Paul, and perpetual lease deed dated 30th June, 1960 was executed in his favour. 2(ii) The suit property at the time of its allotment comprised of part built up portion on the ground floor. Subsequently, by contribution of funds by all the three brothers, the extended ground floor, entire first floor and barsati floor were constructed over a period of time. Father of the appellants, late Sh. Ramesh Chander Paul, made payments for construction of the entire first floor of the suit property. 2(iii) Ever since the suit property was purchased, late Sh. Ramesh Chander Paul was in joint possession with the other two brothers, namely, late Sh. Prakash Chander Khetrapal and late Sh. Jagdish Chander Paul. Thus, when the construction of the suit property was completed sometime in the year 1962, the first floor of the said property came into the possession of late Sh. Ramesh Chander Paul, father of appellants. 2(iv) Late Sh. Jagdish Chander Paul expired on 20th August, 1980. Late Sh. Prakash Chander Khetrapal remained unmarried and he died intestate without leaving any Will in the year 1995. 2(v) Late Sh. Ramesh Chander Paul, father of appellants, retired from service on 30th November, 1981, and he along with his family, i.e., his wife and his children, i.e., the appellants herein, shifted in the first floor of the suit property on 05th October, 1981. Late Sh. Ramesh Chander Paul expired on 09th December, 2003 and after his demise his wife and children, i.e., appellants herein continued to be in exclusive possession of the first floor of the suit property. 2(vi) Mother of the appellants expired on 24th June, 2020 and after her death, the appellants continued to be in exclusive possession of the first floor of the suit property. 2(vii) Though the respondents who are the decree holders and judgment debtors in the suit, were well aware of the fact that appellants are in continuous and uninterrupted possession of the first floor of the suit property, the decree holder filed a suit for partition of the suit property in collusion with the judgment debtors. The suit for partition being CS(OS) 486/2013 was with respect to whole of the suit property, including the first floor. 2(viii)The appellants came to know of the pendency of the said suit on 30th November, 2018 and filed an application for their impleadment along with their mother, which was never listed before the court. Thus, the said suit was decreed vide order dated 12th December, 2018 in view of the settlement arrived at between the decree holder and judgment debtors, by holding that the remedy, if any, was available to the appellants herein.

3. Execution Petition being Ex. P. 50/2021 was filed by respondent no.5 herein against the other respondents for execution of the decree. Objections to the said execution petition were filed on behalf of appellants herein, which were dismissed by the impugned order dated 23rd March, 2023. Hence, the present appeal has been filed.

4. It is to be noted herein that the appellants are the children of late Sh. Ramesh Chander Paul, while the respondents are legal heirs of late Sh. Jagdish Chander Paul.

5. On behalf of appellants, it is contended that the objections filed by appellants were akin to a civil suit as they claimed right over the suit property by way of adverse possession. The objections of the appellants have been dismissed without granting an opportunity to the appellants to establish their claim by leading detailed evidence.

6. It is further contended that to establish claim of adverse possession there cannot be any direct documentary evidence except for what was produced before the learned Single Judge viz. the electricity bills, water bills, etc. which the learned Single Judge failed to recognize.

7. On the other hand, learned counsel for respondents have justified the impugned order passed by the learned Single Judge. It is submitted that the possession was permissive in nature and no right had accrued in favour of the appellants. Long possession would not give right to appellants, as the same was permissive and not hostile. It is further submitted that late Sh. Jagdish Chander Paul was the absolute owner of the entire suit property. Lastly, learned counsel for respondents state that none of the appellants are staying in the suit premises.

8. We have heard learned counsel for the parties and have perused the record.

9. It is manifest from the record that the suit property was exclusively owned by late Sh. Jagdish Chander Paul on the basis of perpetual lease deed dated 30th June, 1960 existing in his favour. There is no document on record to show that title to first floor of the suit property vested with the appellants or their father. Rather, the pleadings on record clearly show that the possession of appellants in first floor of the suit property was permissive in nature. Such permission does not confer any legal right, title or interest upon the appellants over the suit property.

10. It has been admitted on behalf of the appellants that first floor of the suit property had been earlier rented out by late Sh. Jagdish Chander Paul and rent qua the same was also received by late Sh. Jagdish Chander Paul that was utilized by him for his own purposes. The respondents are the surviving legal heirs of late Sh. Jagdish Chander Paul, who till his demise in the year 1980 was the sole registered owner of the entire suit property.

11. This Court notes that appellants have sought to set up contradictory claims of lawful title on the one hand and title by prescription/adverse possession on the other hand. On the one hand, appellants claim that their father had lawful title to the first floor of the suit property because he contributed to the purchase of the said property and further got constructed the first floor of the said property. On the other hand, they claim that their father had perfected his title on the first floor of the suit property by way of adverse possession. The said stands put forward by appellants are mutually exclusive and cannot stand together. If one is claiming lawful title, then he cannot claim title through adverse possession and vice-versa.

12. As pointed out to this Court, appellants are no longer residing on the first floor of the suit property for the last many years. Appellant no.1 has been a resident of the United States of America for over a decade and appellant no.2 has been residing at her matrimonial home in Delhi for the last over three decades in Geetanjali Enclave, as per the memo of parties filed in the present appeal.

13. It needs no gainsaying that late Sh. Ramesh Chander Paul, father of appellants was aware that the ownership and title deed was in the exclusive name of late Sh. Jagdish Chander Paul. Despite this fact, during his lifetime, late Sh. Ramesh Chander Paul never took any steps to establish any claim of ownership qua the first floor of the suit property or to challenge the absolute title of late Sh. Jagdish Chander Paul qua the entirety of the suit property. As submitted on behalf of respondents, it was always to the knowledge of late Sh. Ramesh Chander Paul that his possession of the first floor of the suit property was permissive, and hence the question of perfection of title by prescription or adverse possession cannot arise.

14. Learned Single Judge has returned a categorical finding that the appellants have been unable to satisfy the minimum requirements for sustaining a plea of adverse possession. Thus, it has been held as follows: