Bimla Chopra & Anr. v. Kuldeep

8. Relief.”

9. Both the parties led their respective evidence for adjudication of these issues. Appellant No. 1 examined herself as PW-1 and she produced the following documentary evidence, inter alia, in support of her case: i. “Certified copy of General Power of Attorney dated 27.3.1992 as Ex.PW-1/1 (OSR) ii. Certified copy of deed of agreement to sell dated 27.3.1992 as Ex.PW-1/2 (OSR) iii. Certified copy of receipt dated 27.3.1992 as Ex.PW-1/3 (OSR) iv.Certified copy of affidavit of Saria Rani dated 27.3.1992 as Ex.PW-1/4 (OSR) v. Copy of deed of Will of SarIa Rani dated 27.3.1992 as Ex.PW-1/5 (OSR) vi.Certified copy of the eviction petition filed before ARC as Ex.PW-1/11 vii. Certified copy of the written statement before ARC as Ex.PW-1/12 viii. Certified copy of the order passed by the ARC as Ex.PW-1/13”

10. On the other hand, the Respondent examined himself as DW-1. He also examined DW-2, Tehsildar from SDM office, Shahdara, Delhi, who produced on record Khasra Girdawari and Jama Bandi of Khasra No. 348, Village/ Mauja- Babarpur, Delhi, which were exhibited as Ex. DW-2/1 and DW-2/2 respectively.

11. Learned Trial Court, decided Issue Nos. 4, 5, 6 and 7 together. The onus to prove these issues was upon the Respondent. Learned Trial Court decided all these issues against the Respondent. The learned Trial Court held that the Respondent failed to prove that Appellant No.1’s husband late Sh. Om Prakash Chopra adopted him as per the provisions of Hindu Adoption and Maintenance Act, 1956 and thus, decided Issue No. 4 against the Respondent. Learned Trial Court decided Issue No. 5 against the Respondent as it was observed that the tenant and landlord relationship between the parties was not proved and therefore, law of estoppel as provided under Section 115 of Indian Evidence Act, 1872 was not applicable. Lastly, the learned Trial Court also decided Issue No. 6 and 7 against the Respondent as it held that the Respondent failed to prove that he was in adverse possession of the said portion of the Suit Property. It was further observed by learned Trial Court that Respondent was in permissive possession of the said portion of the Suit Property and failed to prove when the possession became adverse.

12. Thereafter, the learned Trial Court jointly decided Issue Nos. 1, 2 and 3 against the Appellants. The onus to prove these issues were upon the Appellants. It is the view of the learned Trial Court that since the ownership of Appellant No. 1 with respect to the Suit Property had been questioned by the Respondent, Appellant No. 1 had to prove her ownership but she failed to prove the documents in support of her ownership. She also failed to prove her possession in the Suit Property since the year 1992 as claimed by her. Learned Trial Court was of the view that Appellant No. 1 had claimed her ownership merely on the basis of an agreement to sell executed by one Smt. Sarla Rani in her favour in 1992 which was also not registered. It was observed by learned Trial Court that on the contrary, the Respondent had proved that the Suit Property falls in Khasra No. 348 which is government land and belongs to the custodian through Sitara Singh. Learned Trial Court further observed that Appellant NO. 1 had not been able to prove any registered sale deed executed in her favour with respect to the Suit Property, which is a legally necessary document for transfer of title, right and interests in immovable properties. On the basis of these observations, the learned Trial Court dismissed the Suit of the Appellants.

13. Being aggrieved by the Impugned Judgment, the Appellant preferred the present Appeal.

SUBMISSIONS ADVANCED ON BEHALF OF THE APPELLANTS

14. Mr. Shekhar Dasi, learned counsel appearing on behalf of the Appellants has submitted that the learned Trial Court has observed in the Impugned Judgment that the Respondent was in permissive possession of the said portion of Suit Property and not in adverse possession. It is his submission that once learned Trial Court had observed that Respondent was in permissive possession, then in accordance with the provisions of Section 116 of Indian Evidence Act, 1872, it should have decreed the Suit in favour of the Appellants as Section 116 does not allow a licensee to challenge the ownership of the person through whom licensee came into possession.

15. It was also the contention of Mr. Shekhar Dasi that the learned Trial Court was barred by Res Judicata from deciding the issue of title of the Appellant No. 1 over the Suit Property as the said issue had already been decided in the eviction petition which was filed by Appellant No. 1 against the Respondent prior to instituting the Suit in present Appeal. Mr. Shekhar Dasi has stated that it was held in the eviction petition that Appellant NO. 1 was the rightful owner of the Suit Property and thus, there was no need for the learned Trial Court to decide the said issue in view of the principle of Res Judicata as provided under Section 11 of CPC. He submits that the Impugned Judgment is liable to be set aside on this ground alone.

16. Further, Mr. Shekhar Dasi, learned counsel for the Appellants has submitted that learned Trial Court wrongly relied upon the decision of Suraj Lamp & Industries Pvt. Ltd. Vs State of Haryana & Anr., reported as (2012) 1 SCC 656, while observing that the Agreement to Sell, GPA, Receipt, Affidavit and Will are not valid documents for transfer of immovable property. It is his submission that learned Trial Court failed to observe that the said Judgment of Hon’ble Supreme Court came into effect prospectively and not retrospectively and thus, the same would not be applicable to the title of the Suit Property in the present case. Mr. Shekhar Dasi has stated that agreement to sell, GPA, Will, etc. are valid documents for transfer of title of immovable property as per Section 3 of the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorized Colonies) Act, 2019. Therefore, it is his contention that Impugned Judgment may be set aside on this ground.

17. Mr. Shekhar Dasi also submits that even if the Appellants were not able to prove the absolute title of ownership over the Suit Property before the learned Trial Court, but still she was able to prove a better title over the Suit Property than the Respondent. It is his argument that in a suit for recovery of possession once a plaintiff proves a better title than a defendant, the suit must be decreed in favour of the Plaintiff. In order to support his averment, he placed reliance upon the decision of Delhi High Court in Ashish Kumar Vs Hari Kishan, reported as 2015 SCC OnLine Del 14059.

18. Mr. Shekhar Dasi also relied upon the decisions of this Court in Komal & Ors. Vs Panchi Devi reported as (2018) 168 DRJ 244; and Arbinder Singh Kohli & Anr. Vs Gobind Kaur Kohli reported as 2018 SCC OnLine Del 9663.

19. With these submissions, learned counsel for the Appellants prayed for setting aside of the impugned Judgement.

SUBMISSIONS ADVANCED ON BEHALF OF THE RESPONDENT

20. Mr. Yogesh Kumar, learned counsel appearing on behalf of the Respondent has submitted that the learned Trial Court has rightly dismissed the Suit of the Appellants as the Appellant NO. 1 failed to prove that she was the owner of the Suit Property.

21. Mr. Yogesh Kumar has submitted that Appellant No. 1 failed to prove the title documents which were produced by her before the learned Trial Court in order to prove her ownership.

22. In response to the submission of the Appellants that the Impugned Judgment was passed by the learned Trial Court by solely relying upon the judgment of Supreme Court in Suraj Lamp (supra), Mr. Kumar has submitted that the Impugned Judgment was passed on various other findings of learned Trial Court and only a portion of the Impugned Judgment was passed while relying upon the decision in Suraj Lamp (supra). He further submits that it was the view of the learned Trial Court that since there is no registered sale deed in favour of Appellant No. 1, there is no valid sale of Suit Property in favour of Appellant No. 1 as per the provisions of Transfer of Property Act, 1882.

23. Mr. Yogesh Kumar has averred that contrary to the claim of ownership by Appellants, the Respondent has proved before the learned Trial Court by the testimony of DW-2, that the Suit Property is a custodian land and is owned by government and not by Appellant No. 1. He further submits that Appellant No. 1 even admitted in her cross-examination that Suit Property was custodian land, owned by government.

24. It is further the contention of Mr. Kumar, learned counsel for the Respondent that the title documents which were produced before the learned Trial Court by Appellant No. 1 were not even registered but notarized. Appellant No. 1 even failed to call the notary officials to the witness box in order to prove the execution of the title documents in her favour.

25. Mr. Kumar, learned counsel for the Respondent has also argued that no question was put to the Respondent during his crossexamination about the permissive possession. Further, no question was also put to the Respondent with respect to the allegation that Suit Property was custodian land.

26. Mr. Kumar, learned counsel for the Respondent states that in view of these grounds, the present Appeal filed by the Appellants should be dismissed by this Hon’ble Court.

LEGAL ANALYSIS

27. This Court has heard the arguments advanced by both the parties and examined the Trial Court Record and the Judgments relied upon by the parties.

28. The Appellants had filed a registered Sale Deed dated 12.02.2015 along with the Appeal, which has been executed by Appellant No. 1 in favour of Appellant No. 2 transferring the right, title and ownership of Suit Property. A perusal of the record shows that the said Sale Deed was not a part of the Trial Court Record and it was executed by Appellant No. 1 in favour of Appellant No. 2 subsequent to the passing of the Impugned Judgment. No appropriate application has been moved by the Appellants in order to bring on record the said additional document i.e. Sale Deed dated 12.02.2015 and it has been annexed along with the Appeal without seeking any permission from this Court. Further, no permission has been sought to prove the said sale deed dated 12.02.2015 in accordance with law. In the absence of any appropriate application, this Court cannot take the said Sale Deed on record and therefore, it will not be considered while deciding the present Appeal. Even though, if an appropriate application would have been moved by the Appellants, then also the Sale Deed could not have been considered by this Court since the same has been executed after passing of the Impugned Judgment. It creates a new cause of action for Appellant No. 2 to initiate appropriate proceedings against the Respondent.

29. It is also pertinent to note here that the Appellants had taken some additional grounds at the time of arguments. The first additional ground is the ground of res judicata. It has been argued that issue of ownership of Suit Property between the parties was already decided in the eviction petition and therefore, the same could not have been adjudicated herein again due to the bar of res judicata provided under Section 11 of CPC. Another additional ground taken by Mr. Dasi, learned counsel for the Appellants during the course of arguments is that the ownership of a property on the basis of title documents like GPA, Agreement to sell, Will, etc. is recognized under Section 3 of the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorized Colonies) Act,

2019. Since the plea raised by the Appellants are of legal nature, this Court deems it appropriate to examine these legal issues. Furthermore, the Respondents were given sufficient opportunity to rebut these additional grounds.

30. At the outset itself, this Court considers it expedient to test the arguments advanced by the parties with respect to these additional grounds. It is the case of the Appellants that the present suit is barred by res judicata as the issue of ownership of suit property between the parties has already been decided in the eviction petition. It is a well settled principle of law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the said eviction suit is very much limited. In a suit for eviction based on such a relationship, the Court has only to decide whether the defendant is the tenant of the plaintiff or not. Even though the question of title is disputed, the Court can examine the said question only to determine the main question about the relationship between the litigating parties (LIC Vs India Automobiles & Co reported as 1990 (4) SCC 286 & Dr. Ranbir Singh Vs Ashrafi Lal reported as 1995 (6) SCC 580). Hence, in an eviction proceeding, the title of the suit property cannot be determined. Therefore, the findings of the learned ARC regarding the title of the suit property are prima facie in nature and cannot act as res judicata for an appropriate proceeding before the Civil Court in which the title is to be determined. Therefore, this Court is of the considered view that the findings of the learned ARC in the eviction proceedings cannot act as res judicata qua the present proceedings.

31. The second objection raised by the Appellant is that the ownership of a property on the basis of title documents like GPA, Agreement to sell, Will, etc. is recognized under Section 3 of the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorized Colonies) Act,

2019. There is no quarrel with the said proposition of law. As per the said Act, any resident of an unauthorized colony shall be eligible for right of ownership of an immovable property based on registered or un-registered or notarized Power of Attorney, Agreement to Sale, Will, possession letter and other documents including documents evidencing payment of consideration by paying the necessary charges as fixed by the Central Government in this regard. In the present case, it is not the case of the Appellants that Appellant No.1 perfected her title qua the suit property by deposit of the requisite charges as per the said Act. Hence, this Act has no application in the present case.

32. During the course of arguments, Mr. Shekhar Dasi, learned counsel for Appellants has submitted that he is aggrieved by the findings of the learned Trial Court with respect to Issue Nos. 1, 2 and 3 only. Therefore, this Court is only concerned with the findings of learned Trial Court on these Issues.

33. The relevant findings of the learned Trial Court with respect to Issue Nos. 1, 2 and 3 in the Impugned Judgment are extracted hereinbelow:

34. It is the contention of Mr. Shekhar Dasi, learned counsel for the Appellants that the learned Trial Court has wrongly relied upon the decision of Hon’ble Supreme Court in Suraj Lamp (supra) as the same is not applicable in the present case. It is his submission that Appellant No. 1 is the rightful owner of the Suit Property in terms of the documents executed by Smt. Sarla Rani in favour of Appellant No. 1 i.e. General Power of Attorney (Ex. PW-1/1), Agreement to Sell (Ex. PW-1/2), Receipt (Ex. PW-1/3), Affidavit (Ex. PW-1/4) and Will (Ex. PW-1/5). He submits that Appellant No. 1 has been able to prove a better title than the Respondent to the Suit Property and therefore, she is entitled to the reliefs sought for in the Suit. He states that in view of the decision of this Court in Komal Vs Panchi Devi (supra); and Arbinder Singh Kohli Vs Gobind Kaur Kohli (supra), the learned Trial Court committed a grave error while dismissing the Suit of the Appellants.

35. Per contra, Mr. Yogesh Kumar, learned counsel for the Respondent has argued that there is no irregularity in the Impugned Judgment and therefore, there is no need for this Court to interfere with it. He has argued that the learned Trial Court has rightly observed that Appellant No. 1 has failed to prove her ownership over the Suit Property. She has failed to produce any sale deed in her favour with respect to the Suit Property which is a valid document for transfer of ownership of immovable property as per the decision of Supreme Court in Suraj Lamp (supra). It is his further contention that the Respondent had successfully proved before the learned Trial Court that the Suit Property is a government land in custody of Sitara Singh as per Ex. DW-2/1 and Ex. DW-2/2. Lastly, Mr. Yogesh Kumar, learned counsel for the Respondent has culminated his arguments by averring that the title documents have not been proved by Appellant No. 1 as she failed to even call the notary official to the witness box so as to prove the fact that Smt. Sarla Rani had executed those documents in favour of Appellant No. 1.

36. At this juncture, it would be apt to examine the law regarding the ownership of the suit property based on unregistered documents. Extracted hereinbelow is the relevant portion of the Judgment of this Court in Komal Vs Panchi Devi (supra), relied upon by the Appellants:

37. The relevant portion of the Judgment in Arbinder Singh Kohli Vs Gobind Kaur Kohli (supra) is extracted hereinbelow:

38. Furthermore, Mr. Dasi, learned counsel for the Appellants also relied upon the decision of this Court in Ashish Kumar Vs Hari Kishan (supra), wherein it was held as follows:

39. In view of this Court, it is also apposite to refer to the decision of this Court in Pyarelal Vs Sheela Devi & Ors., reported as 2014 SCC Online Del 7271. The observations made therein can be considered as locus classicus on the point and the same are extracted hereinbelow:

12. In Suresh Kumar v. Saroj Atal 2012 III AD (Delhi) 718, it has been held thus:“In a suit for possession a plaintiff has to show better title i.e. entitlement than that of the defendant and in the present case, besides the fact that respondent/plaintiff has shown a better entitlement to possession by virtue of the documents dated 25.9.2001 executed in her favour, the appellants/defendants themselves do not have any equities in their favour inasmuch as qua both the flats purchased by them rights have been exercised. Thus, even if the respondent/plaintiff fails to prove the ownership rights stricto sensu to the extent of entitlement of possession, the appellants/defendants cannot defend the suit for possession once no title or interest in the suit property is claimed by them”.

13. To succeed in a suit for possession, appellant has to show better title than the person from whom possession is claimed, that is, respondent no. 2. Even though appellant has failed to prove complete ownership right in the suit property in view of the Suraj Lamp (Supra), however, appellant has established better title in his favour in view of the documents all dated 2nd February, 1989, which have not been disputed by respondent nos. 1 and 2. As regards respondent no. 3, he has already made a statement that he has no right, title or interest in the suit property. He has also not claimed that he is in possession of the suit property.”

40. From the detailed discussion of various case laws herein above, it is clear that in order to succeed in a suit for possession, the Plaintiff has to show better title than the person from whom possession is claimed. Based on this legal principle, it will now be apt to look upon the peculiar facts of the case at hand. In the present case, Appellant No.1 is claiming the ownership of the suit property. In order to substantiate her ownership, Appellant No. 1 produced General Power of Attorney (Ex. PW-1/1), Agreement to Sell (Ex. PW-1/2), Receipt (Ex. PW-1/3), Affidavit (Ex. PW-1/4) and Will (Ex. PW-1/5) executed by Smt. Sarla Rani in her favour. It is pertinent to note here that the Respondent is not claiming ownership of the suit property, but is only challenging the ownership of Appellant No. 1. It is the case of the Respondent that the suit Property is government land/ custodian land in custody of Mr. Sitara Singh. Appellant No.1 purchased the suit property from Smt. Sarla Rani, however, there is no document which was produced on record to prove that Smt. Sarla Rani was the owner of the suit property. Further, it is the case of the Respondent that the late husband of Appellant No.1 adopted him and hence, Appellant No.1 authorized him to reside in the said portion of the Suit Property. Hence it is the admitted case of the Respondent that he is a licensee of the said portion of the suit property. The Learned Trial Court categorically held that the Respondent is in permissive possession of the suit property.

41. In this regard, it is important to examine Section 116 of the Indian Evidence Act, 1872. As per the said provision, no licensee can challenge the ownership of the person through whom licensee came into possession of the suit property. Section 116 of the Indian Evidence Act, reads, inter alia, as follows: “116. Estoppel of tenant; and of licensee of person in possession.—No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.”

42. The Hon’ble Supreme Court in Kamaljit Singh Vs Sarabjit Singh, reported as 2014 (16) SCC 472, examined the ambit of Section 116 of the Indian Evidence Act, and held as follows:

16. There is considerable authority for the proposition both in India as well as in U.K. that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question latter’s title to the property.”

43. Hence, from the settled position of law as discussed herein above, it is evident that so long as a jural relationship exists between the Respondent-licensee and Appellant No.1-licensor and so long as he has not surrendered the possession of the premises in his occupation, the Respondent cannot question the title of Appellant No.1 to the suit property. On applying Section 116 of the Evidence Act to the facts of the present case, it is evident that the Respondent is estopped from challenging the title of Appellant No. 1 qua the Suit Property.

44. Hence, in light of the decisions referred to above, the Appellant No.1 has proved a better title to the Suit Property than the Respondent.

45. In view of the detailed discussion hereinabove, this Court concurs with the finding of the learned Trial Court that the Respondent is in permissive possession of the Suit Property. Since, the Respondent has also not filed any cross objections against the Impugned Judgment assailing these observations, so, the finding of the learned Trial Court that Respondent is in permissive possession of the Suit Property and not in adverse possession becomes final. Under these circumstances, this Court agrees with the contention of Mr. Dasi that once the Defendant has admitted that he was in permissive possession of the said portion of the Suit Property, then he should be liable to hand over the peaceful possession of the same to the person through whom he came into possession at the first place. The fact that Respondent was in permissive possession of Suit Property also makes it conspicuous that inter se the Appellants and the Respondent, Appellant No. 1 has a better claim to the Suit Property than the Respondent.

46. It is also necessary to point out that the learned Trial Court wrongly observed that Appellant No. 1 had claimed the Suit Property solely on the basis of Agreement to Sell (Ex. PW-1/2). It further observed that the Agreement to Sell was also merely a photocopy. However, on examination of the evidence, it is clear that Appellant No. 1 had tendered the Agreement to Sell as an Exhibit after showing to the learned Trial Court original Agreement to Sell.

47. It is the contention of Mr. Yogesh Kumar, learned counsel for the Respondent that Appellant No. 1 has not been able to prove her ownership over the Suit Property but on the contrary, he has proved that the Suit Property is a government land. However, even if the Respondent has successfully proved the same, but even then, in light of the judgments and the findings of this Court hereinabove, Appellant No. 1 has proved a better title to the Suit Property in comparison to the Respondent. Then, it is his contention that even the notary officer, who had notarized the title documents was not called as a witness by Appellant NO. 1 in order to prove the documents. Even if Appellant No. 1 failed to do so, it was neither the case of the Respondent that these documents were never executed by Smt. Sarla Rani in favour of Appellant No. 1 nor that these documents were forged. It was his case that Appellant No. 1 is not the owner of the Suit Property and even Smt. Sarla Rani did not have any power to execute the title documents in favour of Appellant No. 1. Therefore, in view of this Court, even if Appellant No. 1 failed to call the notary official to the witness box, no harm has been caused to her case. She has anyhow proved a better title to the Suit Property than the Respondent. This Court is not convinced with any of the submissions made by learned counsel for the Respondent.

48. In light of the observations made hereinabove, the Impugned Judgment and Decree dated 14.01.2015 is set aside. The Suit of Appellants is decreed for possession. This Court directs the Respondent to vacate and hand over the peaceful and vacant possession of the said portion of Suit Property to Appellant NO. 2 within a period of 4 weeks of passing of this Judgment. With respect to the prayer of mesne profits @ Rs. 5,000/- per month w.e.f. 01.12.2012 till the delivery of possession to the Appellants, this Court is of the opinion that a sum of Rs.3,000/per month is reasonable after considering the size and location of the Suit Property. Hence, the Respondent is directed to pay a sum of Rs. 3,000/- per month towards mesne profits from date of filing of suit i.e. 01.12.2012 till the delivery of actual physical possession to Appellant No. 2 within a period of 6 weeks of passing of this Judgment. It is trite to state that the Appellants are also entitled to the consequential relief of perpetual injunction against the Respondent.

49. Appellant No. 2 is also directed to pay the deficit court fee, if any, in light of the reliefs granted herein above. After payment of such deficit court fee, a decree sheet be drawn according to this Judgment.

50. Appeal is allowed. No order as to costs. All pending applications stand disposed of.

GAURANG KANTH, J. MAY 02, 2023