Full Text
HIGH COURT OF DELHI
NILOFAR SINGH
R/o 607, Sarvapriya Apartments, Sarvapriya Vihar, New Delhi ..... Plaintiff
Through: Mr. Praveen K. Sharma, Mr. Sahil Nagpal, Advocates.
JUDGMENT
1. PRAMOD DANG R/o H. No.-161, Kariappa Marg Sainik Farm, New Delhi.
2. SUB REGISTRAR, Mehrauli, New Delhi-110030..... Defendants Through: Mr. M.P Bhargava, Mr. Aashu Tyagi, Advocates for D-1 Mr. Rajiv K. Nanda, Advocate for Proposed D-3 Mr. Aditya Wadhwa, Ms. Adya Jha, Advocate for Proposed D- CORAM: HON’BLE MS.
JUSTICE NEENA BANSAL KRISHNA J U D G E M E N T NEENA BANSAL KRISHNA, J I.A. 16344/2018
1. An application under Order I Rule 10 of the Code of Civil Procedure, 1908 has been filed on behalf of the Plaintiff for impleadment of Mr. O.P Manchanda as defendant no. 3.
2. It is submitted in the application that the Plaintiff has filed a suit for Declaration, Cancellation of documents, Possession, Permanent and Mandatory Injunction against defendant nos. 1 and 2 in respect of the Suit Property bearing House No. 106-C/B, Sainik Farms, Khanpur, New Delhi.
3. It is submitted in the application that Defendant no. 1 in its Written Statement dated 1st April, 2013 had stated that the suit property is in possession of one Mr. O.P. Manchanda, resident of 169, Kariyappa Marg, Sainik Farms, New Delhi-110062 in whose favor the documents of Title have been executed by the Plaintiff. It is claimed that although precise details of the alleged Title documents executed in favour of Mr. O. P Manchanda which are in fact forged and fabricated, were mentioned along with the payment details and bank drafts but deliberately the documents were not filed on record.
4. The Plaintiff moved an Interlocutory application vide I.A. NO. 2488/2015 seeking production of documents as mentioned in the Written Statement by the Defendant no. 1. Six weeks time was granted to the Defendant no. 1 for filing the documents vide Order dated 04.02.2015. However, Defendant no. 1 chose not to comply with these Orders and the subsequent Order dated 17.03.2016. On 29.07.2016, learned counsel on behalf of the Defendant no. 1 gave a Statement that he does not have copies of the documents and undertook to provide necessary details of person referred to in the documents and also to file an affidavit affirming his Statement. The Order dated 29.07.2016 was also not complied with and the affidavit was filed only on 23.08.2016 but it was not in terms of the Order dated 29.07.2016 as details of Mr. Virender Prakash were not mentioned in the affidavit.
5. The conduct of the defendant no. 1 speaks for itself as he has been misleading this Court for the last five years and not coming up with the documents, details of which were mentioned in the Written Statement.
6. The Plaintiff has filed a Suit making unambiguous averments in the Plaint and the Replication that the documents were executed in favour of defendant no. 1 and the possession of the suit property was handed over to him. In this factual situation, it has become imperative to implead Mr. O.P. Manchanda as Defendant no. 3, as Defendant no. 1 has allegedly transferred the possession to him on the basis of forged and fabricated documents. No effective adjudication of the issues can be done in the absence of Mr. O.P. Manchanda. Hence the prayer is made that Mr. O.P. Manchanda may be impleaded as a party.
7. The Defendant no. 1 has contested this application and taken a preliminary objection that the application is a gross misuse of the process of the Court. The Plaintiff has devised a novel way to circumvent the liability arising out of the non-joinder of necessary party by preferring this present application at a highly belated stage by concealing material facts. It is claimed that Defendant no. 1 in its Written Statement dated 05.01.2013 had disclosed complete facts that the suit property was sold to Mr. O.P. Manchanda by the plaintiff by executing several documents in his favour. It was further pointed out that Mr. O.P. Manchanda was a necessary party and all the details and the address of Mr. O.P. Manchanda was provided.
8. Thereafter, the plaintiff moved an application bearing I.A. NO. 21117/2013 under Section 151 and 34 read with Order XXXIX Rule 1 and 2 of the CPC for directions to place a Public Notice in regard to the suit property but the application was dismissed vide Order dated 08.02.2013.
9. The Replication was filed to the Written Statement of defendant no. 1 wherein the Plaintiff consciously and willingly denied the factum of having executed the documents in favour of Mr. O.P. Manchanda and also denied that he was a necessary party to the present suit.
10. The issues in the suit were framed on 04.02.2015 in which some issues were framed in regard to the non-impleadment of Mr. O.P. Manchanda. Thereafter, Plaintiff filed an application bearing I.A. NO. 2488/2015 under Order XI Rule 12 of CPC for directions to Defendant no. 1 to produce the documents. The Defendant no. 1 filed his compliance affidavit on 23.08.2016 categorically stating that he does not possess any of the Title documents. Several adjournments were taken by the plaintiff for arguments on the preliminary issue and the indignation by the Court about the maintainability of the suit on account of non-impleadment of Mr. O.P. Manchanda was expressed in the Order dated 27.02.2018.
11. Thereafter, this present application has been filed in September, 2018. It is claimed that the application is highly belated and is liable to be dismissed as it has been filed after five years from the date of information about Mr. O.P. Manchanda being conveyed to the Plaintiff.
12. Mr. O.P. Manchanda, the proposed defendant no. 3 in its reply has taken the preliminary objection that the plaintiff is guilty of „supresso very suggestion falsi‟ and concealment of relevant documents. A false claim has been filed by the Plaintiff on the basis of false pleadings and averments on oath.
13. The Plaintiff had sold the suit property to the proposed defendant in the year 2001 for a total sale consideration of ₹35 lakhs. The Plaintiff had represented that she had entered into two separate Agreements, both dated 10.08.2000 with Mr. Prakash Chand Jalan and Mr. Jagmohan Singh for the Sale of the property and had received part sale consideration for ₹15,00,000/- and ₹7,50,000/- respectively under the two Agreements to Sell. It was further represented that they both were willing to cancel the Agreement to Sell in case the proposed defendant made payment of ₹25,00,000/- to Mr. Jagmohan Singh and ₹7,50,000/- to Mr. Prakash Chand Jalan out of the total sale consideration of ₹35,00,000/-. On the instructions of the Plaintiff, the requisite payment were made to Mr. Jagmohan Singh and Mr. Prakash Chand Jalan and the balance ₹2,50,000/- was received by the Plaintiff. After receiving the sum of ₹25,00,000/-, Mr. Jagmohan Singh acknowledged the amount and cancelled the Agreement to Sell dated 10.08.2000. Likewise, Mr. Prakash Chand Jalan on receiving the amount, cancelled the Agreement to Sell dated 10.08.2000. The Plaintiff having received the entire consideration amount, signed and executed the Agreement to Sell dated 10.08.2000, Registered Will, Possession Letter, Receipt of ₹32,50,000/- and ₹2,50,000/-, Indemnity Bond and Affidavit dated 29.10.2001 in favour of the proposed Defendant. A Registered Power of Attorney was executed in favour of Defendant no. 1, Mr. Pramod Kumar Dang. The Plaintiff also presented herself for registration of the Will and the General Power of Attorney dated 29.01.2001. The possession of the Suit Property was also delivered and the proposed Defendant became the sole and absolute owner of the Suit Property and has been in exclusive possession since then.
14. The proposed defendant for his bonafide need further sold the suit property to M/s ASG Securities Pvt. Limited through its Director, Mr. Virender Prakash Gupta. On the instructions of the proposed Defendant, Mr. Pramod K. Dang executed General Power of Attorney in favour of the Mr. Virender Prakash Gupta. The proposed defendant is no longer the Owner or the Title holder of the suit property and is therefore, not a necessary and a proper party to the present suit.
15. It is further asserted that the application is highly belated and is barred by time. The Plaintiff was informed by way of Written Statement of Defendant no. 1 about the property having been sold to the proposed defendant through various documents on 05.01.2013 despite which the plaintiff did not choose to implead the proposed Defendant for almost six years from the date of filing of this suit. The relief sought to be claimed against the proposed Defendant is time barred and the application is liable to be dismissed. On merits, it is asserted that the proposed Defendant is not a necessary party and the present application is liable to be dismissed.
16. Submissions heard.
17. A Suit for Declaration, Possession, Permanent and Mandatory Injunction has been filed by the Plaintiff against Mr. Pramod Dang making averments that the Plaintiff on account of deep financial crisis and because of a large number of litigations against him, took financial accommodation from Defendant no. 1 and on his wrong assurances, signed Special and Genera Power of Attorney along with blank documents in his favour. The Defendant misled the Plaintiff to handover the possession of the portion of the suit property on the pretext that it would facilitate him to arrange short term funds from other financers as the property would then be shown as a Security. It was also explained to the Plaintiff that in case it did not happen, she would have to wait for sometime as his own funds would take about 45 to 60 days to be liquidated. Since the Plaintiff wanted to save the dent in her reputation and personal liberty and was short of time and funds, she agreed to do so. However, Defendant no. 1 never disbursed any loan to the plaintiff. After a lapse of few weeks, Plaintiff demanded back the GPA, SPA and other documents but the defendant refused to return the documents. Consequently, she revoked the documents by Revocation Deed dated 31.01.2002 for the defendant could have misused her blank documents. In December, 2011, the plaintiff came to know that defendant no. 1 was intending to sell the property by misusing her cancelled/revoked documents. She thus, filed the present suit for possession, mandatory and permanent injunction.
18. The Defendant No. 1 in his Written Statement had claimed that Plaintiff in fact had sold the property to Mr. O.P. Manchanda by executing the requisite documents namely Agreement to Sell, Possession Letter, receipt dated 29.10.2001 and on the request of Mr. O.P. Manchanda, the irrevocable Power of Attorney dated 29.10.2001 was executed in favour of Defendant no. 1, Mr. Pramod Dang. It is claimed that the Plaintiff has already sold the property to Mr. O.P. Manchanda. On the request of Mr. O.P. Manchanda, the defendant no. 1 executed General Power of Attorney in respect of suit property in favour of Mr. Virender Prakash, the subsequent purchaser.On the disclosure of these facts by the Defendant no. 1, the Plaintiff has moved this application for impleadment of Mr. O.P. Manchanda as Defendant no. 3.
19. The main ground on which the application is opposed is limitation. It is asserted that the property had been purchased by Mr. O.P. Manchanda in the year 2001 and this fact was disclosed by Defendant no. 1 in his Written Statement dated 02.01.2013. The proposed Defendant no. 3 was in possession of the property since 2001 and the suit for recovery of possession of the property from Mr. O.P. Manchanda would be maintainable from the date when he is impleaded as a party which is beyond the period of 12 years and the relief of possession claimed against him is barred by limitation. It is also asserted that the property has already been sold to M/s ASG Securities Private Limited and no cause of action survives against Mr. O.P. Manchanda.
20. It is the claim of Defendant no. 1 in the Written Statement that the possession of the property has been with Mr. O.P. Manchanda since 2001. The Plaintiff on the other hand has specifically averred that the permissive possession was handed over to Defendant no. 1 in 2002 and according to her, he continued to be in possession. It is a matter of evidence when the possession of the property was parted with either by defendant no. 1 or the proposed defendant, Mr. O.P. Manchanda.
21. It is the defense taken by the defendant no. 1 that he has not been in possession and the proposed defendant Mr. O.P. Manchanda is also claiming to have further sold off the property to M/s ASG Securities Private Limited by executing Agreement to Sell dated 11th August, 2008.
22. Whether Mr. O.P. Manchanda has been in possession or whether permissive possession was handed over to Defendant no. 1 and what is the nature of possession of Mr. O.P. Manchanda in the property are all mixed questions of facts and law which require evidence to prove the respective set of documents on which the parties are placing reliance. At this stage of considering the application under Order I Rule 10 of CPC, what has to be necessarily considered is whether the proposed defendant is a necessary and a proper party to the present suit. As has been unraveled from the facts as pleaded, it is Defendant no. 1 who is asserting that the property had been sold off by the Plaintiff to the proposed Defendant Mr. O.P. Manchanda while the plaintiff has categorically asserted that only GPA along with some blank documents were executed in favour of defendant no. 1 to enable him to cause loan, which were also revoked in the year 2002.
23. It is quite evident that Mr. O.P. Manchanda was claiming to be in possession of the property which he has now been handed over to M/s ASG Securities Private Limited. According to the Plaintiff, it is the Defendant NO. 1 who was in possession. Considering these disputed facts and also that Mr. O.P. Manchanda is claiming to have purchased the property of the Plaintiff on the basis of the Agreement to Sell, etc, it is evident that Mr. O.P. Manchanda is a necessary and proper party to the present suit. He, as per his averments, may have allegedly sold the property to M/s ASG Securities Private Limited but the core question of he having acquired ownership in the property by purchase from the plaintiff is first to be established in order to ascertain the right, title of the subsequent purchaser. In case it is found that Mr. O.P. Manchanda had no right, title in the property, any person who is subsequently in possession through him would necessarily be also without any right and title.
24. The Plaintiff has asserted that it came to the knowledge of the plaintiff in the year 2013 from the Written Statement of defendant no. 1 that he was not in possession of the suit property and the possession was that of Mr. O.P. Manchanda. It is argued on behalf of the applicant that the address of Mr. O.P Manchanda was disclosed in the written statement by the defendant NO. 1 despite which no application has been filed for almost six years for his impleadment which is clearly barred by limitation.
25. It is a disputed fact whether the plaintiff had partied with possession in favour of defendant no. 1 in 2002, or whether defendant no. 1 illegally and in an unauthorized manner handed over the possession to Mr. O.P. Manchanda. The Article 65 of Limitation Act 1963 provides that the suit for possession may be filed in 12 years. There are disputed fact about the nature of possession and date of parting of possession which cannot be considered at this stage.
26. Merely, by impleading Mr. O.P. Manchanda as a party, the issue of limitation has not been determined as the proposed Defendant on impleadment, is at liberty to take all the factual and legal defences including that of limitation in his Written Statement.
27. In the factual matrix as disclosed above, Mr. O.P. Manchanda is considered as a necessary and proper party and is impleaded as Defendant No. 3. The application is accordingly allowed. Amended Memo of Parties accordingly to be filed. Written Statement be filed as per law. I.A. 16575/2019
1. An application under Order I Rule 10 of the CPC has been filed by the Plaintiff for impleadment of M/s ASG Securities Services Private Limited thorough its Director Mr. Virender Gupta as Defendant no. 4.
2. It is submitted in the application that the proposed Defendant no. 3, Mr. O.P. Manchanda has allegedly transferred the suit property to the proposed Defendant no. 4 on the basis of fabricated documents and possession has also been handed over to M/s ASG Securities Private Limited. Consequently, Local Commissioner was appointed vide Order dated 26.08.2019 to ascertain who was in physical possession of the suit property. The Local Commissioner visited the site on 28.08.2019 and submitted a Report dated 24.09.2019 wherein it was stated that the suit property was either owned by Mr. Pramod Dang or Mr. Virender Gupta, Director of M/s ASG Securities Services Private Limited. Therefore, it has become imperative to implead M/s ASG Securities Services Private Limited as Defendant no. 4 for the adjudication of the present suit.
3. The proposed Defendant no. 4 in its reply has claimed that the application is ex-facie barred by limitation. It is a settled proposition of law that the impleadment of a party under Order I Rule 10 of the CPC cannot be allowed where the claim against the proposed defendant is time barred. In the present case, the present application is merely to subvert and avoid the import of Order II Rule 2 which prescribes that every suit is to include the entire claim and any part of the claim for possible relief not claimed, shall be deemed to have been relinquished and no subsequent suit can be brought in that regard.
4. The proposed Defendant no. 4 states that he acquired an interest in the suit property in the year 2008 from Mr. O.P. Manchanda, the proposed Defendant no. 3, and since then, he has been in continuous and undisputed possession of the suit property. It is claimed that at the time of making the purchase, proposed defendant had carried out extensive due diligence and had learnt that the proposed Defendant no. 3 had acquired the property from the Plaintiff in the year 2001 and various Registered documents including the Will had been executed by the Plaintiff in favour of proposed Defendant no. 3. Despite this, the Plaintiff has filed the present suit in April, 2012 without impleading the proposed Defendant no. 3 and without praying for the cancellation of the documents executed in favour of the Defendant no. 3. The relief now sought having been relinquished and omitted, it cannot be now introduced in terms of the Order II Rule 2 of the CPC.
5. It is further stated that the factum of sale of the property by the Plaintiff to the proposed Defendant no. 3 was disclosed in the Written Statement file on 05.01.2013 and complete details and address of the proposed Defendant no. 3 was mentioned.
6. The Plaintiff in its replication expressly took the position that proposed Defendant No. 3 was neither a necessary nor a proper party to the present suit and he has further taken more than 5 years for filing the application under Order I Rule 10 of CPC for impleadment of the proposed defendant no. 3.
7. It is asserted that according to the Plaintiff, she came to know about the proposed Defendant no. 4 from the reply dated 01.04.2019 filed on behalf of the proposed Defendant no. 3. However, proposed Defendant no. 4 has been the owner and in possession of the suit property since 2000 and this fact should be deemed to be in the knowledge of the plaintiff.
8. Since the suit is time barred against proposed Defendant no. 3 who is in possession since 2001, it would be automatically time barred against Defendant no. 4. It is further submitted that no amendment has been carried out by the plaintiff to implead these facts. It is claimed that proposed Defendant no. 4 is bonafide purchaser and is protected under law. It cannot be disputed that he has acquired the title in the property as a owner and therefore such acquisition of interest is protected under law. It is further asserted that the interest had been acquired way back in 2008 while the suit has been filed only in the year 2013 and therefore Defendant no. 4 would not be subject to Lis Pendens. It is therefore submitted that the application is liable to be dismissed.
9. Submissions heard.
10. The scope and mode of Order I Rule 10(2) of the CPC has been discussed in Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and Others (2010) 7 SCC
417. It is observed that this sub-rule does not pertain to a right of a non-party to be impleaded as a party but about the judicial discretion of a Court to add or strike out a party at any stage of the proceedings. This discretion can be exercised either suo moto or on an application of the Plaintiff or the Defendant or on an application of a person who is not a party to the suit. The Supreme Court explained the principles to be followed while considering the applications under Order I Rule 10(2) of the CPC. It was provided that if a Plaintiff makes an application for impleadment of a party on the ground that he is a necessary party, the Court may implead him provided the claims against him are not barred by limitation. In exercising its judicial discretion under Order I Rule 10(2), the Court would of course act according to reason and fair play and not according to its whims and fancies. The classic definition of discretion was given by Lord Mansfield in R. v. Wilkes (1770)
4 Burr 2527 as “When applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful but legal and regular”.
11. In Rabindra Nath Samuel Dawson v. Sivakasi and others (1973) 3 SCC 381, the Hon‟ble Supreme Court had held that the benefits of the Section 14 and 2(7) of Limitation Act, 1908 cannot be made available to the plaintiff who persisted in his earlier suit and appeal in spite of the repeated objection by the party.
12. In Ramalingam Chettiar v. P. K. Pattabiraman and another (2001) 4 SCC 1996, the Supreme Court held that in terms of Section 21(1) of the CPC, 1908 and proviso thereto, unless the Court expressly directs otherwise, the Suit shall be deemed to have been instituted against the newly impleaded defendant from the date of its impleadment and not the earlier date.
13. The Plaintiff claims that she came to know about the alleged possession of Mr. O.P. Manchanda only from the written statement of defendant no. 1 which was filed in 2013. She then tried to procure the alleged documents of sale in favour of Mr. O.P. Manchanda from defendant no. 1. A fraud had been played upon her by Defendant no. 1 and she could not ascertain the true import and nature of fraud since the Defendant no. 1 despite being subsequently directed on the application of the plaintiff under Order XI Rule 12 of the CPC to produce the documents of alleged sale in favour of Mr. O.P. Manchanda, failed to produce the requisite documents. It is only in 2017 that the defendant no. 1 filed his affidavit asserting that he was not in possession of the document executed in favour of Mr. O.P. Manchanda. Those documents were essential to understand the transactions and ascertain the true impact of alleged fraud. Since documents were not fortcoming, she filed the present application under Order I Rule 10 of the CPC and Mr. O.P. Manchanda on service of this application filed the documents and disclosed that property was sold to M/s. ASG Securities Services Private Limited from which the true extent of fraud has been deciphered.
14. From these averments of the Plaintiff and the abovementioned judgments, it emerges that whether there was a fraud, is a mixed question of fact and law, which cannot be decided at this stage of considering applications under Order I Rule 10 of the CPC.
15. The main objection taken on behalf of the Defendant is that the Plaintiff had been informed way back in 2013 with detailed name and address about the possession of the property being with the applicant Mr. O.P. Manchanda despite which the present application has been filed only in 2018 and the plea of fraud has become barred by limitation.
16. Learned counsel for the plaintiff has placed reliance on Syed Shah Ghulam Ghouse Mohiuddin and others v. Syed Shah Ahmed Mohiuddin Kamisul Quadri (1971) 1 SCC 597 a reference was made to Section 18 of the Limitation Act, 1908 to hold that if the plaintiff decides to invoke the aid of Section 18 of the Limitation Act, 1908 he must establish that the fraud has been kept away from his knowledge so as to give him a right to sue on the facts or the title where on it is founded. In Rahimboy v. Turner 20 IA 1:
17 Bom 341, Lord Hobhouse had observed “When a man has committed a fraud and has got property thereby it is for him to show that the person injured and suing to recover the property, has had clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to bring the suit”.
17. In Pallav Sheth v. Custodian and others (2001) 7 SCC 549, it was observed that the period of the limitation would commence from the date when fraud or dishonest conduct comes to the knowledge of the plaintiff. The said observations were made in the context of Contempt of Courts Act, 1971 read with Section 17 of the Limitation Act, 1961.
18. On the other hand, learned counsel for the defendant has placed reliance on Golesh Kumar v. Ganesh Dass Chawla Charitable Trust 2006 OnLine Del 487, where the suit of the plaintiff was dismissed in non-joinder of the necessary party. During the appeal filed against the said Judgment, an application under Order I Rule 10 of the CPC was filed for impleadment of the proposed defendant. The Court observed that the only plea taken for non-impleadment was that there was a bonafide mistake which was made in good faith, even though the defendants had taken the objection on the first instance and the proposed parties were not impleaded. It was held that undisputably the suit had become barred by limitation against nonimpleaded parties and therefore the impleadment at the stage of appeal, was declined. However, this Judgment is not applicable to the facts in hand, in so much as the impleadment application was sought to be filed at the appeal stage and not during the trial and was patently barred by limitation. In the present case, since the possession of the applicant Mr. O.P. Manchanda and then of M/S ASG Securities Services Private Limited was disclosed, the Plaintiff has been making every endeavor to get the documents on the basis of which applicant is claiming to be in possession of the suit property. Further, essentially though it is asserted that fraud has been played on the Plaintiff, but the suit for possession, and the limitation for relief of possession is 12 years. As already, noted above, the date and documents establishing possession of applicant are based on disputed facts, which cannot be considered at this stage by way of an application under Order I Rule 10 CPC.
19. The other objection taken on behalf of the proposed Defendant no. 4, M/s ASG Securities Private Limited is that the Plaintiff as per her own submissions in the Plaint, lost possession of the property in question way back in 2002 and the suit has been filed only in the year 2012. Furthermore, the application for impleadment of the proposed Defendant No. 4 has been made only in the year 2019. The possession of the proposed defendant relates back to 2002 since when the Plaintiff is not in possession. More than 12 years have elapsed and the suit for recovery of possession is therefore not maintainable.
20. Learned counsel for the proposed Defendant no. 4 has asserted that its possession since 2008 is relatable to that of the previous owner Mr. O.P. Manchanda who had purchased the property in the year 2001. Even if the proposed defendant no. 1 is held to have not acquired any ownership in the suit property by virtue of the Agreement to Sell, GPA, etc but it has perfected its title in the property by way of adverse possession, since he has not been a party to this suit till the filing of the application for impleadment in the year 2019.
21. Reliance has been placed on Ravinder Kaur Grewal and Others v. Manjit Kaur and Others (2019) 8 SCC 729 wherein it is observed that adverse possession is heritable and there can be taking of adverse possession by two or more persons as the right is transmissible one, since it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 of the Schedule to the Limitation Act, 1963. “Tacking” is based on the fulfillment of certain conditions, tacking may be by possession of the purchaser, legatee or assignee, etc. So as to constitute continuity of possession that person must be claiming through whom it is sought to be tacked and would further depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.
22. There cannot be any quarrel with the legal proposition of law that once the Plaintiff has lost the possession of the property, the suit for recovery of possession can be filed only within a period of 12 years. The concept of “tacking” would become available in the case of adverse possession only if the adverse possession has been transferred from one party to the other and then the entire period would have to be considered for the purpose of ascertaining the acquisition of right by way of adverse possession.
23. The facts in hand are distinguishable in so much as the plaintiff is claiming to have handed over permissive possession to Defendant no. 1 so as to enable him to raise the finances by mortgaging her property. It is the defense of the proposed Defendant that in fact the Plaintiff had entered into a sale transaction with Mr. O.P Manchanda in the year 2001, who in turn had sold the property in the year 2008 to M/s ASG Securities Pvt. Limited since when it is in possession. The alleged sale documents in favour of Mr.
24. So far as the claim of the proposed Defendant of having acquired a title by way of adverse possession or that the suit being barred by limitation, is a question of fact and law, which cannot be determined at this stage of impleadment.
25. In this context, it is significant to refer to the Local Commissioner‟s Report dated 24.09.2019 wherein it was noted that Ms. Reena Dixit and Kuldeep Dixit were found available on the spot who stated that the premises were owned by Mr. Pramod Dang that is Defendant no. 1. After some time one Mr. Kamlesh Dixit met the Local Commissioner and asserted that one Mr. Brijender Gupta, resident of Geetanjali Enclave was the owner of the suit premises. The Report of the Local Commissioner in regard to the possession was thus inconclusive.
26. Whether the Plaintiff lost possession of the property way back in the year 2002 or whether the proposed defendant is in possession of the property since 2008 as is asserted are all mixed questions of fact and law which cannot be ascertained at the stage of impleadment of the proposed Defendant, M/s ASG Securities Private Limited which is claiming to be the owner by virtue of sale documents executed in its favour by Mr. O.P. Manchanda in the year 2008.
27. In view of the specific plea of the proposed Defendant no. 4 that it has acquired ownership and is in possession of the suit property, it is shown that it is a necessary and proper party as had also been observed by this Court in its Order dated 27.02.2018. It is hereby held that the proposed Defendant NO. 4 who is claimed to be in possession, is a necessary and proper party and is impleaded as defendant no. 4. The application is accordingly allowed. Amended Memo of Parties be filed accordingly. Written Statement be filed as per law.
1. List before the Joint Registrar for completion of pleadings on 19.01.2023.
(NEENA BANSAL KRISHNA) JUDGE November 22, 2022