Lalji Kushwaha & Anr. v. Rajesh Narain Sharma

Appellant 1, with the assurance that the amount would be returned within a month, failing which the respondent agreed to convey the suit property by executing title documents in respect thereof in favour of Appellant 1, and to hand over possession of the suit property to Appellants,

(ii) on the strength of the said assurance, Appellant 1 provided the aforesaid financial assistance of ₹ 1,40,000/- by way of Pay Order No. 21904[6] dated 24th April 1990 in the name of Agia Ram and

(iii) the said Pay Order was executed by Appellant 1 from his savings bank account in the State Bank of Patiala, Model Basti, New Delhi.

11. It was further asserted that the aforesaid facts found reflection in the sale deed dated 26th April 1990, whereunder the respondent claimed to have purchased the suit property from Agia Ram.

12. The written statement alleged that, as the respondent was unable to return the aforesaid loan amount of ₹ 1,40,000/- to Appellant 1 within the agreed period of one month, the respondent executed, in favour of Appellant 1, agreement to sell, affidavit, GPA and receipt June 1990. The appellant, however, claimed to have lost the aforesaid documents, in connection with which a report had been lodged at Police Post Shahbad Daulatpur, Bawana, vide DD entry NO. 8 dated 30th June 2003. Since the date of execution of the aforesaid documents by the respondent in favour of Appellant 1, on 20th June 1990, the appellants claimed to be residing uninterruptedly in the suit property along with their three children.

13. By way of evidence of such interrupted residence, Appellant 1 placed reliance on

(i) letter dated 4th May 1991, issued by Kendriya Vidyalaya

(ii) acknowledgement slip for registration-cum-demand note issued by MTNL dated 6th March 1991 and 28th July 1992,

(iii) Savings Fund passbook bearing Account no. 30153 issued by the Bara Hindu Rao Branch of the Punjab National Bank, reflecting the suit property as the address of Appellant 1, and

(iv) letter dated 9th January 1993, issued by MTNL evidencing the installation of a telephone connection in the name of Appellant 1 at the suit premises.

14. The written statement further asserted that, subsequently, vide registered sale deed dated 1st August 2001, executed by the respondent through Appellant 2 as his duly constituted attorney (in whose favour the respondent was alleged to have executed the GPA dated 20th June 1990), the suit property was sold by the respondent to Appellant 1. The sale deed was subsequently registered with the concerned Sub- Appellant 1 also stood substituted in the records of the House Tax Department, MCD, the DVB and the Delhi Jal Board.

15. In view of the aforesaid, Appellant 1 claimed to be the fullfledged owner of the suit property. The allegation that Appellant 1 had been permitted to reside in the suit property as a licensee was categorically denied. The appellants asserted that, on the basis of the title documents executed on 20th June, 1990 by the respondent and, subsequently, the registered sale deed dated 1st August 2001, the appellants were uninterruptedly continuing in the suit property. Their occupation could not, therefore, be treated as gratuitous. Rather, the appellants claimed, in the written statement, to be owners of the suit property. The allegations that the title documents dated 20th June 1990 were forged and fabricated and that the sale deed dated 1st August 2001 was null and void were also emphatically denied.

16. The appellants also advanced a preliminary objection to the suit as being barred by time, as more than three years had elapsed since the execution of the agreement to sell, GPA, affidavit and receipt dated 20th June, 1990 by the time the suit was filed. In this context, the appellants also made a submission, in passing-though no specific pleadings to the said effect is to be found elsewhere in the written statement-that the suit of the respondent was barred by time as it had been filed ―after a lapse of 12 years from the date of handing over the possession of the suit property to the (appellants) i.e. 20.6.90 coupled with ownership rights and title upon the same, when the same became adverse and hostile qua the (respondent).‖

17. For all these reasons, the appellants sought dismissal of the suit. Replication

18. The respondent filed a replication, reiterating the contents of the plaint and traversing the contents of the written statement. Course of proceedings and evidence before the learned ADJ Issues

19. Consequent on completion of pleadings, the following issues were framed by the learned ADJ on 1st July 2004: ―1. Whether suit of the plaintiff is barred by the Limitation? OPD

2. Whether defendant had provided financial assistance of ₹ 1,40,000/- to the plaintiff by way of Pay Order at the time of purchase of property from Agia Ram? OPD

3. Whether plaintiff himself had executed documents in favour of defendant on 20.06.90 and put defendant in possession in the same month and in the alternative Whether defendant had become owner by way of adverse possession? OPD

4. Whether plaintiff is entitled to decree of declaration as prayed for?

5. Whether plaintiff is entitled to decree of possession as prayed for?

6. Whether plaintiff is entitled to damages of ₹ 1,50,000/or any other sum?

7. Whether plaintiff is entitled to pendente-lite and future damages at the rate of ₹ 10,000/- per month or any other sum?

8. Whether suit has not been valued properly for the relief claimed?

9. Relief.‖ Application under Section 65, Indian Evidence Act

20. During the course of proceedings before the learned ADJ, the appellants moved an application under Section 65 of the Indian Evidence Act for permission to place on record the photocopies of the agreement to sell, affidavit, receipt and GPA allegedly executed by the respondent in favour of the appellants on 20th June 1990, as the original documents were claimed to have been lost by the appellants on 25th June 2003 while travelling to Alipur. The appellants also placed on record the police complaint dated 30th June 2003, filed by Appellant 1, in that regard at PS Shahbad Daulatpur Bawana. The said application was allowed by the learned ADJ vide order dated 25th April, 2007. Evidence

21. Four witnesses (PWs) were cited by the respondent as plaintiff, and eleven witnesses were cited by the appellants as defendants (DWs). Plaintiff‘s Witnesses PW-1 Rajesh Narain Sharma (the respondent)

22. The respondent, as PW-1, tendered his evidence-in-chief by way of affidavit dated 10th August, 2004. He asserted, in his affidavit, that he had purchased the suit property from Agia Ram for a consideration of ₹ 1,80,000/- by way of registered sale deed dated 26th April 1990, which was exhibited as Ex. PW-1/A. Of the said sale consideration of ₹ 1,80,000/-, the affidavit asserted that ₹ 40,000/- was paid in cash and ₹ 1,40,000/- was paid by way of Pay Order 291046 dated 26th April 1990 which the respondent claimed to have got issued from the State Bank of Patiala, Model Basti, New Delhi. It was further asserted, in the affidavit, that, for the said purpose, the respondent had withdrawn ₹ 3,00,000/- from his own bank account NO. 14426 at the State Bank of Bikaner and Jaipur, Delhi on 9th April

1990. It was stated that the sale consideration of ₹ 1,80,000/- was paid by the respondent from out of the said amount of ₹ 3,00,000/- which had been withdrawn by him.

23. Subsequent to purchase of the aforesaid property, the affidavit asserted that the name of the respondent Rajesh Narain Sharma was substituted in place of Agia Ram in the records of the MCD and the DVB. The house tax receipt relating to the property was exhibited as Ex. PW-1/B and the application for mutation of the suit property in favour of the respondent, as well as the mutation order, was exhibited as Ex. PW-1/C collectively.

24. The affidavit further asserted that the appellant was permitted by the respondents to reside in a portion of the suit property admeasuring 20‘ x 20‘, along with his wife and children in 1993, whereas the remainder of the suit property continued to be in the possession and occupation of the respondent. As such, the possession and occupation of the suit property by the appellants, the affidavit asserted, was merely in the capacity of gratuitous licensees.

25. The affidavit further asserted that, subsequently, when relations between the appellants and the respondent became strained in 2000, the respondent requested Appellant 1 to vacate the suit property. On Appellant 1 demurring from doing so, the respondent served, on Appellant 1, legal notice dated 8th August 2002 (Ex. PW-1/E), calling on Appellant 1 to hand over, to the respondent, peaceful and vacant possession of the suit property and to pay damages @ ₹ 10,000/- per month for unauthorized use and occupation thereof.

26. The affidavit acknowledged the fact that Appellant 1, in his reply dated 23rd August 2002 (Ex. PW-1/H) to the legal notice dated 8th August, 2002 (Ex. PW-1/E) of the respondent, claimed himself to be the owner of the suit property, on the basis of a registered sale deed dated 1st August 2001, whereunder the Appellant 1 claimed that the respondent had conveyed half the suit property in favour of the Appellant 1. The reply dated 23rd August 2002 further alleged that the aforesaid registered sale deed dated 1st August 2001 succeeded agreement to sell, affidavit and receipt dated 20th June 1990 executed by the respondent in favour of Appellant 1 and GPA dated 20th June 1990 executed by the respondent in favour of Appellant 2. The reply alleged, therefore, that the sale deed dated 1st August 2001 was in terms of the GPA dated 20th June 1990.

27. The affidavit in evidence of the respondent as PW-1 averred that, in response to the aforesaid reply of the Appellant 1 issued a rejoinder legal notice dated 5th May 2003, calling upon the Appellant 1 to provide, to the respondent, copies of the GPA, agreement to sell, affidavit and receipt allegedly executed by the respondent on 20th June

1990. No reply was received to the said rejoinder legal notice.

28. In the circumstances, the respondent categorically denied having ever executed any documents in favour of either of the appellants on 20th June 1990. It was alleged that the GPA dated 20th June 1990 was false, forged and fabricated. In this context, the affidavit further asserted that inquiries made by the respondent with the office of the Sub-Registrar revealed that no such GPA was traceable in the office of the Sub-Registrar with the sale deed dated 1st August 2001. The said document, it was asserted, did not bear either the signature or the thumb impression of the respondent. Inasmuch as the sale deed dated 1st August 2001 was executed by Appellant 2 in favour of Appellant 1 purportedly on the basis of the authority to do so, conferred by the forged and fabricated GPA dated 20th the affidavit asserted that the sale deed was also illegal, invalid, null and void and could not bind the respondent or confer any right, title or interest on Appellant 1.

29. The respondent also categorically denied the recital, in the sale deed dated 1st August, 2001, of sale consideration of ₹ 1,40,000/having been received by the respondent from Appellant 1 in respect of the suit property. The respondent categorically asserted that he never received any consideration from either of the appellants and did not intend to sale or transfer any portion of the suit property to either of the appellants.

30. PW-1 (the respondent) was subjected to a detailed and incisive cross-examination by learned Counsel for appellants. He testified, in the cross-examination, that he was staying at 9035, Ganesh Lines, Kishan Ganj, DCM Colony, till January 1990 and was staying at the suit property at 201, Joshi Road, Karol Bagh at the time of his marriage in November 1991. He denied the execution, by Rishal Singh, Ranjit Singh, Baljit Singh, Jai Kishan, Rajender Singh and Jai Bhagwan of GPA dated 15th November 1990 in favour of Appellant 1 with respect to land situated in Village Karala, Delhi, on which the appellants sought to rely, as the said GPA purportedly reflected the suit premises as the address of the appellants. The respondent, as PW- 1, also denied having signed the said GPA as witness, and further clarified, in this regard, that he was not residing in Ganesh Lines in 1990, though the GPA dated 15th November 1990 reflected the respondent as residing at 9035, Ganesh Lines. He, however, acknowledged the fact that the GPA reflected the address of appellants as 201, Joshi Road, Karol Bagh, i.e. the suit premises. Apropos another GPA dated 11th September 1990, also in respect of the land in Karala Village, and purportedly executed in favour of Appellant 1, the respondent testified, in cross-examination, that the residence of Appellant 1 was reflected, in the said GPA, as House No. 16/225, Gali No. 8, Joshi Road, Karol Bagh. He asserted that the said GPA, too, did not bear his signature. The respondent, as PW-1, disclaimed all knowledge of the Karala lands forming subject matter of the aforesaid GPAs. He also acknowledged the following recitals, contained in paras 2 and 3 of CS 45/2002 (Rajesh Narain v. Lalji Khushwaha and Ors) ―2. That previously, the plaintiff and defendant no. 1 were jointly doing the business of Sale and Purchase of the land having their office at 313/8-B, Inderlok, Tulsi Nagar, Delhi- 110035 and during the same period, the plaintiff and defendant no. 1 purchased a land bearing Khasra no. 50/19/1 (1-10), 22/1 (3-16), 23(5-12), 51/31/1 (1-0), 9(4-12), 10(4- 12), 50/22/2 (1-0), 51/2(4-12), 52/6/1 (1-0) and 15(4-0), total measuring 31 Bighas 14 biswas leaving 3 Bighas of the land of Khasra No. 50/19/1 with the Bhumidar, from its Bhumidar vide Khata Khatoni No. 362/147 and 365/138 in the Revenue Estate of Village Karala, Delhi by way of various documents including Registered G.P.A., Deed of WILL, Agreement to Sell and other documents in the name of defendant no. 1.

3. That thereafter the plaintiff and defendant no. 1 separated their business and during the partition of their business/settlement of money issue between the plaintiff and defendant no. 1, the aforesaid land was got transferred in the name of the plaintiff by the defendant no. 1 by executing various documents which include G.P.A., Agreement to Sell, Affidavit and a Registered WILL dated 14.01.1991.‖

31. The respondent, as PW-1, further testified, in crossexamination, that business relations between the respondent and the appellants had soured in 2000, and denied the suggestion that they had separated in 1991. On this, learned Counsel for appellants queried the respondent, to which the respondent replied thus: ―Ques: I put it you that in the present suit you have stated that you had separated your business with defendant no. 1 in the year 2000, whereas in the other suit filed by you against the defendant no. 1, and ors. Which is Ex. DX[2], you have stated that you had separated your business with defendant no. 1 in the year 1991. Which of the statement of you is correct? Ans: Both are correct.‖

32. The respondent, as PW-1, denied the suggestion that he had affixed his signatures on the Agreement to Sell, GPA, Affidavit and Receipt dated 20th June 1990, which were marked Z-3, Z-4, Z-5 and Z-6 respectively.

33. The respondent further testified, in cross-examination, that he had allowed Appellant 1 to stay in the suit property with his permission. He denied the assertion of Appellant 1 that, on the basis of the GPA dated 20th June 1990 (which, too, he denied), Appellant 1 had legally come into ownership of the suit property. Apropos the amount paid to Agia Ram towards purchase of the suit property, the respondent testified that he had withdrawn ₹ 3,00,000/- from the State Bank of Bikaner and Jaipur, Delhi on 9th April 1990. He categorically denied the suggestion that Pay Order No. 21904[6] dated 24th April 1990, tendered to Agia Ram against the sale of the suit property, was got prepared by Appellant 1. He claimed, instead, to have himself got the Pay Order prepared, for which he had also paid the necessary commission. PW-2 Shashi Sharma, wife of the respondent

34. PW-2 tendered her affidavit by way of evidence and was subjected to cross-examination by learned Counsel for the appellants. The affidavit broadly reiterated the assertions of PW-1 and sought to vouchsafe the said assertions. PW-3 Ajit Singh, LDC in the office of Sub-Registrar-III, Asaf Ali Road, New Delhi

35. PW-3 Ajit Singh produced a copy of the registered Sale Deed (Ex. PW-1/A) dated 26th April 1990, whereby and whereunder Agia Ram had sold the suit property to the respondent. He also confirmed that the documents marked as Mark Z, was the photocopy of the Sale Deed executed by Appellant 2, as the Attorney of the respondent, in favour of Appellant 1, in respect of the suit property. PW-4 Ram Avtar Verma, Zonal Inspector, (House Tax) Karol Bagh Zone

36. PW-4 Ram Avtar Verma produced the record relating to payment of house tax in respect of suit property. He submitted that the house tax records, in respect of half of the property situated at 225- 226 and 201, Joshi Road, Karol Bagh, had been mutated in the name of the respondent on 17th May 1990 and that, till date, the property tax in respect of the property comprising half of 225-226, Joshi Road, continued to be assessed in the name of the respondent in their records. Prior thereto, it was confirmed that the property tax in respect of the suit property was assessed in the name of Agia Ram. The mutation in the house tax records, from the name of Agia Ram to the name of the respondent, he testified, was on the basis of the sale deed April 1990, whereunder Agia Ram sold the suit property to the respondent.

37. In cross examination, PW-4 stated that the property at 201, Joshi Road, had been mutated in the name of Appellant 1, from the name of the respondent, vide order dated 20th June, 2001, on the basis of the agreement to sell dated 20th June, 1990 executed between the respondent and Appellant 1. PW-4 testified that, on the basis of the said document the appellant had applied for mutation of house tax in his favour on 26th June 2001, enclosing photocopies of the agreement to sell, affidavit and indemnity bond. Defendants‘ Witnesses DW-1 Lalji Kushwaha (Appellant 1)

38. The appellant Lalji Kushwaha, as DW-1, filed his affidavit in evidence, in which he reiterated all the contentions advanced by him in the written statement filed by him in response to the suit instituted by the respondent. He contended that he had extended financial assistance of ₹ 1,40,000/- to the respondent, by way of Pay Order NO. 21904[6] dated 24th April, 1990, drawn by him from his saving bank account with the State Bank of Patiala, Model Basti, Delhi in favour of Agia Ram. He further stated, in his affidavit in evidence, that he would be relying on the records of the State Bank of Patiala, Model Basti and would be summoning the witness from the said bank with the said records to prove his contention. He asserted that the respondent was able to purchase the suit property from Agia Ram only owing to the financial assistance thus extended by him. He further reiterated his stand, in the written statement, that the respondent had agreed, in the event of the respondent‘s being unable to repay the aforesaid loan of ₹ 1,40,000/- within a month, to convey the suit property to the appellant. In accordance with the said understanding, as the respondent was unable to liquidate the loan within one month, the agreement to sell, GPA, affidavit and receipt dated 20th June 1990 had been executed by the respondent in favour of the appellants, as the respondent had been unable to repay Appellant 1 within one month. It was further asserted that, on the very day on which the said documents were executed, the respondent had handed over possession of the suit property to the appellants. He further pointed out, on the basis of the order dated 25th April 2007 supra, passed by the learned ADJ, he was tendering, in evidence, photocopies of the alleged title documents

39. Appellant 1, as DW-1, further asserted that he and his family had been residing in the suit property since 20th June 1990. He relied on the following documents as proof of residence:

(i) letter dated 4th May 1991, issued by Kendriya Vidyalaya

(ii) acknowledgement slips dated 6th March 1991 and 28th July, 1992 issued by the Mahanagar Telephone Nigam Ltd. (MTNL) to Appellant 1 at the suit property (Ex. DW-1/D and Ex. DW-1/E respectively),

(iii) Savings bank passbook issued in his name by the Punjab

(iv) domestic gas connection dated 25th September 1992 issued by the Indian Oil Corporation (IOC) in his favour after due verification that he was residing in the suit property (Ex. DW-1/G),

(v) letters dated 9th January 2003 (Ex. DW-1/H) issued by the

MTNL at the suit property, regarding installation of a telephone connection therein in the name of Appellant 1 as well as bills issued by the MTNL in the appellant‘s name at the said property for the months of March, 1993, July to September, 1993, 25th November 1993, 16th December 1993, 28th December 1998 and 3rd July 2002 (Ex. DW-1/I collectively),

(vi) receipts, dated 17th March 1999 (Ex. DW-1/J) and electricity bills issued by the DVB on 7th August 1999, 15th April, 2000, 12th October 2000, 17th April 2001, 6th November 2001, 19th March 2002 and 16th May 2002 (Ex. DW-1/K collectively) issued by the DVB in the appellant‘s name at the address of the suit property,

(vii) receipt dated 31st March 1999 (Ex. DW-1/L) and water bills dated 9th April 1999, 19th August 2000, 27th December 2001, 6th February 2002 and 4th June 2002 (Ex. DW-1/M) issued by the DWB in the name of the appellant,

(viii) house tax assessment order dated 20th June 2001 issued by the Assistant Assessor and Collector, Karol Bagh Zone, in the name of the appellant and in respect of the suit property (Ex. DW-1/N) and

(ix) House tax receipts dated 28th June 2001, 3rd July 2001,

19th March 2002 and 23rd August 2002 (Ex. DW-1/O collectively) and house tax bills dated 5th July 2002 and 18th September 2003 (Ex. DW-1/P collectively) issued by the House Tax Department of the MCD in the appellant‘s name at the address of the suit property. The appellant, as DW-1 further submitted, in his affidavit in evidence, that, in order to obtain the aforesaid telephone, gas connection, savings bank account and ration card in his name at the address of the suit property, the appellant had furnished the title documents dated 20th June 1990 (marked Marks Z[3] to Z[6]) as proof of residence.

40. Appellant 1, as DW-1 further deposed, in his affidavit by way of examination-in-chief, that neighbours and residents of the locality would also testify to the effect that the appellant was the owner of the suit property. In any event, he submitted, he had become the lawful owner of the suit property by way of registered sale deed dated 1st August 2001, executed in his favour by Appellant 2, as the attorney of the respondent under the GPA dated 20th June 1990 supra.

41. Appellant 1, as DW-1, was cross examined by learned Counsel for the respondent.

42. During cross examination, Appellant 1 produced the original sale deed dated 1st August 2001 which was exhibited as Ex. DW-1/Q. In cross examination, Appellant 1 testified that he was residing in the quarters allocated to him by DCM, where he was also working, till June 1990, when he shifted to the suit property. In further cross examination, the appellant, as DW-1, denied the suggestions, put to him, that

(i) he was staying in the suit property as a licencee of the respondent,

(ii) Pay Order No. 21904[6] dated 24th April 1990 was got prepared by him out of funds provided by the respondent,

(iii) no GPA was executed by the respondent in favour of

(iv) the agreement to sell, affidavit and receipt dated 20th June

(v) Appellant 1 had, in collusion with the officers of the

House Tax department of the MCD, managed to have his name mutated in place of the respondent in the revenue records relating to the suit property.

43. To a query posed by learned Counsel for the respondent, Appellant 1, as DW-1, testified that the title documents dated 20th June 1990 had been prepared at his residence to where the respondent had come along with the draft of the documents and had signed the documents at his residence. DW-2 Nand Kishore, clerk in State Bank of Patiala, Model Basti, Delhi

44. DW-2 appeared on 27th January 2009 and submitted that he could not produce the summoned record of Pay Order dated 24th April 1990 for ₹ 1,40,000/- in favour of Agia Ram as the Bank had not retained the said record. In compliance with the direction issued by the learned ADJ to the said effect, DW-2 Nand Kishore, on the next date of hearing (19th March 2009) produced a certified copy of the circular issued by the Bank, which required preservation of records only for ten years, along with the record register of the State Bank of Patiala, Model Basti, which were exhibited as Ex. DW-2/A and DW- 2/B. DW-3 Avdesh

45. DW-3 was the brother of Appellant 2 and brother-in-law of Appellant 1. He testified, in examination-in-chief, that the respondent had sold the suit property to Appellant 1 in June 1990, in lieu of payment of ₹ 1,40,000/- by Appellant 1, by way of a Pay Order NO. 21904[6], which the respondent was unable to return. He sought to corroborate the statement of Appellant 1 that the respondent had brought the title documents dated 20th June 1990 to the residence of Appellant 1 where he was present along with one Suraj Bhan. He further testified, in his examination-in-chief, that the photocopies of the said title documents dated 20th June 1990 marked Marks Z[3] to Z[6] bore his signatures, the signatures of the respondent, the signatures of Appellant 1 and the signatures of Suraj Bhan. The said photocopies were, therefore, exhibited as Ex. DW-3/A to Ex. DW-3/D.

46. In cross examination, DW-3 admitted that he was unable to read or write English. He further testified, in cross examination, that the title documents Ex. DW-3/A to Ex. DW-3/D were first signed by the respondent, thereafter by Appellant 1, thirdly by Suraj Bhan and, lastly, by him. He denied the suggestions that the signatures of the respondent on the said documents were not his signatures. He further stated that, at the time of execution of the said documents, Appellant 1 had handed over a cheque/draft to the respondent. DW-4 HC Rakesh Kumar, P.S. Bawana

47. HC Rakesh Kumar, as DW-4, confirmed that a carbon copy of the NC Report dated 30th June 2003 lodged by Appellant 1, corresponded with the original in the record of the police station. However, in cross examination, he confirmed that he could not testify as to the correctness of the said report. DW-5 Ashok Kumar, neighbour of the appellants.

48. DW-5 deposed, in his examination-in-chief, that he knew the appellants since 1990 and knew Appellant 1, as the owner of the suit property, since the beginning. He also stated that he had seen Appellant 1 raising constructions in the suit property. However, in cross-examination, DW-5 acknowledged that he had not seen any sale deed qua the suit property in favour of Appellant 1. DW-6 T.R. Gulati, UDC, Kendriya Vidyalaya

49. DW-6 was not subjected to cross examination, despite grant of opportunity. In his examination-in-chief, he stated that he had brought, with him, the application for admission, dated 27th August 1991 (Ex. DW-5/1), of Master Mukesh Kumar, the son of the appellants, for admission at Kendriya Vidyalaya, Gole Market, with which the birth certificate (Ex. DW-5/2) of Master Mukesh Kumar, the original application dated 16th August 1991 (Ex. DW-5/3) written by Appellant 1 to the Principal of the School and a photocopy of the ration card (Mark-DX) of Appellant 1 were enclosed. DW-7 Pankaj Sood and DW-10 Kamleshwar Upadhyaya, Officers in the office of the Food & Supply Office, Karol Bagh

50. DW-7 tendered, during his examination-in-chief, the master register containing the details of the ration card issued in favour of Appellant 1 on 27th August 1996, against his earlier consumer card held by him. He sought time to produce the master register containing the details of the earlier consumer card. However, DW-10, who appeared in lieu of DW-7, testified that he had not been able to trace the master register of the earlier consumer card which appears to have been destroyed. DW-8 Bhim Singh Vohra, neighbour of the appellants

51. DW-8 testified, in examination-in-chief, that he knew the appellants who were residing in front of his house, since 1990. He further stated that he knew Appellant 1 ―as owner of the same, since defendant himself had renovated the entire suit property before me and also raised construction of second floor in the suit property in my presence‖. However, in cross examination, he confirmed that the sale deed in favour of Appellant 1, in respect of the suit property, had not been executed in his presence and that he had not seen the said document. DW-9 Om Prakash, Registration Clerk, office of Sub-Registrar, Modi Nagar

52. DW-9 produced, with his examination-in-chief, the office copy of the GPA executed by Risal Singh, Ranjit Singh, Baljit Singh, Jai Kishan, Rajender Singh and Jai Bhagwan in favour of Appellant 1, in the presence of the respondent and Suraj Bhan and witnesses. He confirmed that the said GPA had been registered at the office on 15th November 1990 and that the copy of GPA placed on record as Mark X tallied with the GPA on the record of the Sub-Registrar‘s office. However, in cross-examination, he clarified that the ID proof of the respondent, to which reference was to be found in the GPA (Ex. DW- 9/A), had not been produced by him and that no one had identified the respondent. He also disclaimed knowing the respondent. DW-11 P.S. Duggal, Branch Manager, State Bank of Patiala, Model Basti

53. DW-11 PS Duggal testified, in his examination-in-chief, that the vouchers relating to Pay Orders for the period 1st January 1990 to 31st December 1990 stood weeded out by the bank in terms of circular dated 24th January 2001 (Ex. DW-11/B). He was not cross examined despite grant of opportunity. On the next date of hearing, however, he produced the records/transactions of Account No. 30153 of the appellant at the Bank containing the transactions of Appellant 1 from 15th May 1991 till 10th October 1998 and confirmed that the account had been closed on 10th October 1998.

54. Thereafter, arguments were heard and vide the impugned judgment dated 24th December 2018, the learned ADJ decreed the suit of the respondent in the following terms: ―83. In view of my findings on all the issues as above, the suit of the plaintiff is decreed for possession of the suit premises i.e. portion measuring about 20x20 ft. forming part of property bearing no. XVI/201 & 1I2XVII225, Cali No.7, Joshi Road, Karol Bagh, New Delhi-55, consisting of ground floor, first floor and second floor. Suit of the plaintiff is further decreed for recovery of damages @ K10,000/- per month from 01-09-2002 to 31-08-2003 and pendente-lite and future damages@ Rs.10,000/- per month from 01-09-2003 with increase of 10% in every three years till the date of possession of the suit premises is handed over or taken over by the plaintiff.

84. Plaintiff is directed to pay requisite court-fees on the amount of pendente-lite and future damages within 10 days working days.‖ Impugned Judgment and Decree

55. The learned ADJ adjudicated the issues framed by him, thus:

56. Re. Issue 1 – Limitation 56.[1] Observing that the period of limitation for filing a suit for declaration was three years from the date of accrual of the right to sue, the learned ADJ has noted that the right to sue would arise when the respondent acquired knowledge of the sale deed dated 1st August 2001 and the GPA, agreement to sell, affidavit, receipt etc. dated 20th June

1990. The respondent had specifically averred in the plaint that he had acquired knowledge of these documents only on receipt of reply dated 23rd August 2002 (Ex. PW 1/H), dispatched by the appellants by way of response to the respondent‘s legal notice dated 8th August 2002 (Ex. PW 1/E). The appellants had not led any evidence to controvert this assertion of the respondents. 56.[2] Thereafter, the learned ADJ, after observing that the appellants had not pleaded perfection of title by adverse possession has proceeded, nonetheless, to hold that, by their assertion that the sale deed dated 1st August, 2001 (Ex. DW-1/Q) had been executed by Appellant 2 as the duly constituted attorney of the respondent, the appellants had acknowledged the ownership and title of the respondent qua the suit property on the date of execution of the sale deed. It could not, therefore, be said that the possession of the suit property, by the appellants, was adverse or hostile to the respondent even as on 1st August 2001. 56.[3] In view of these observations, the learned ADJ has held that the suit was not barred by time and has, therefore, decided issue 1 in favour of the respondent and against the appellants.

57. Re. Issue 2 – Alleged payment of ₹ 1,40,000/- by Appellant 1 to respondent by way of Pay Order 57.[1] Inasmuch as the appellants had sought to contend, in their written statement by way of defence to the suit instituted by the respondent, that Appellant 1 had extended a loan of ₹ 1,40,000/- to the respondent, which was repayable within one month but was not so repaid, the onus, to prove the extending of such a loan of ₹ 1,40,000/was on the appellants. 57.[2] Appellant 1 had sought to contend that the Pay Order of ₹ 1,40,000/- in favour of Agia Ram had been got executed by him by way of financial assistance to the respondent so as to enable the respondent to purchase the suit property. The respondent had sought to contend, per contra, that the said Pay Order had been got executed by him, for which purpose he had withdrawn ₹ 3,00,000/- from his bank account on 9th April 1990. 57.[3] The learned ADJ observed, at the outset, that Appellant 1 had not provided his savings bank account in the State Bank of Patiala in his affidavit in evidence, and that no passbook, of the said account, had been placed on record by him, as could evidence the existence of the appellant‘s account in the said bank and the presence of ₹ 1,40,000/- in the said account. Appellant 1 had, therefore, failed to prove that he had ₹ 1,40,000/- in his saving bank account in the State Bank of Patiala on 24th April 1990 or that he had issued Pay Order NO. 21904[6] from the said bank account on the said date. No explanation was forthcoming, from Appellant 1, for this default. 57.[4] Appellant 1 had sought to lead the evidence of Nand Kishore, a Clerk in the State Bank of Patiala as DW-2. However DW-2 submitted that the records relating to Pay Orders issued in April 1990 were no longer retained in their bank. He also produced a certified copy of the circular issued by the bank, as well as the record maintenance register, which were exhibited as Ex. DW-2/A and Ex. DW-2/B. DW-2 could not, therefore, led credence to the appellants‘ submission that the Pay Order of ₹ 1,40,000/- had been issued by Appellant 1 from his savings bank account in the State Bank of Patiala. 57.[5] The learned ADJ has also noted, in this context, that there was no reference, in the sale deed dated 26th April 1990 (Ex. PW-1/A) that the Pay Order, whereby the consideration for the said sale had been made over to Agia Ram, had been got issued by the Appellant 1 from his savings bank account. Appellant 1 had neither produced the passbook relating to his saving bank account, nor summoned the statement of account and produced it in court to show that he had sufficient funds to get the Pay Order for ₹ 1,40,000/- issued on 24th April 1990. 57.[6] In this context, the appellants relied on the following recital, in the cross examination of Appellant 1 as DW 1: ―It is incorrect to suggest that the Pay Order prepared by me was made from the funds made available by the plaintiff.‖ The aforesaid suggestion put by the respondent to the Appellant 1 in cross examination, contended Appellant 1, amounted to an admission that the Pay Order dated 24th April 1990 was in fact, prepared by the Appellant 1. The suggestion, according to Appellant 1, was to the effect that, though the Pay Order had been got prepared by Appellant 1, the funds, for getting the Pay Order prepared, had been provided by the respondent. As such, it was sought to be contended that it did not lie in the mouth of the respondent, to contend, any more, that the Pay Order dated 24th April 1990 had not been prepared by Appellant 1. The onus of proof, rather, shifted to the respondent, to substantiate the suggestion, to the extent that the respondent claimed that the Pay Order had been got prepared out of funds provided by the respondent. 57.[7] The learned ADJ has rejected this contention holding that there was no pleading, on the part of the respondent, to the effect that the Pay Order dated 24th April, 1990 had been got prepared by the Appellant 1 out of funds provided by the respondent. A suggestion in cross examination which travelled beyond the pleadings in the suit, according to the learned ADJ, could not be taken into consideration, and could not result in shifting of the onus of proof to the respondent. 57.[8] Yet another reason that has persuaded the learned ADJ to reject the contention of Appellant 1 that he had advanced a loan of ₹ 1,40,000/- to the respondent is that the respondent had, as PW-1, specifically stated, in his affidavit by way of examination-in-chief, that he had withdrawn ₹ 3,00,000/- from his account no. 14426 in the State Bank of Bikaner and Jaipur on 9th April, 1990, out of which he had got the Pay Order for ₹ 1,40,000/- issued in favour of Agia Ram. On this aspect, the respondent, as PW 1 had not been cross examined by the appellants. As such, this assertion, in the examination-in-chief of the respondent as PW 1, had gone unrebutted. Having thus withdrawn ₹ 3,00,000/- from his account on 9th April, 1990, the learned ADJ holds that there was no requirement for the respondent to take a loan of ₹ 1,40,000/- from Appellant 1, to pay Agia Ram. 57.[9] The learned ADJ has further relied on the assertion by Appellant 1, as DW 1, in cross examination that he used to maintain his personal accounts for receipt and payment and had mentioned the fact of advancing of the loan of ₹ 1,40,000/- to the respondent in the said personal accounts. When asked to produce the said accounts, however, the appellant, as PW-1, stated that he was not in a position to produce the accounts at that stage. The learned ADJ holds that, if Appellant 1 had, in fact, got the Pay Order of ₹ 1,40,000/- issued in favour of Agia Ram by way of financial assistance to the respondent, the said fact would certainly have found place in his records, which he ought to have produced in court. The default, on the part of Appellant 1, in producing his records to vouchsafe this assertion, according to the learned ADJ, belied the assertion itself.

57.10 In view of the aforesaid, the learned ADJ holds that Appellant 1 had failed to prove that he had lent financial assistance of ₹ 1,40,000/ to the respondent by getting the Pay Order for payment to Agia Ram issued from the bank. Issue 2 was, therefore, decided against the appellants and in favour of the respondent.

58. Re: Issue 3 – Alleged execution of title documents by respondent on 20th June 1990 and simultaneous placing, by the respondent, of the appellants, in possession of the suit property and, in the alternative, plea of adverse possession: 58.[1] Insofar as the assertion of the appellants that the title documents June 1990 had been executed in favour of the appellants by the respondent is concerned, the learned ADJ holds that the assertion of Appellant 1, as DW-1, in cross-examination, that the respondent had come to the house of Appellant 1 with the drafts of the title documents on 20th June 1990 and had executed the documents by signing them at the house of Appellant 1, was not compatible with the contention that the documents were duly notarized before the Notary Public. 58.[2] Reliance has also been placed, by the learned ADJ, while on this issue, on the record of cross-examination of DW-3 Avdesh, to the effect that the cheque/draft was given by Appellant 1 to the respondent. Inasmuch as the contention of the appellants was that the Pay Order was handed over at the time of execution of the Sale Deed April 1990 (Ex. PW-1/A) by Agia Ram in favour of the respondent, the learned ADJ holds that DW-3 could not claim to be a witness to the execution to the alleged title documents dated 20th June

1990. Equally, the assertion by DW-3, to the effect that the respondent, Appellant 1, Suraj Bhan and DW-3 had signed the alleged title documents dated 20th June 1990 at the residence of Appellant 1 belied the contention that the documents were notarized. These incongruities, seen in the light of the fact that DW-3 was the brother of Appellant 2 and brother-in-law of Appellant 1 rendered his testimony untrustworthy. 58.[3] The learned ADJ also notes that, the plea of appellants being that the alleged title documents dated 20th June 1990 were executed before the Notary Public, they should have led the evidence of the Notary Public, who would have been an independent and disinterested witness. Their inaction in that regard, he holds, justified an adverse inference against the appellants. Nor did the appellants choose to lead the evidence of any handwriting expert to prove the signatures of the respondent on the alleged documents dated 20th June 1990. As the documents were not registered before the Sub-Registrar, they were required to be strictly proved. The learned ADJ, following on the aforesaid observations, holds, in the light of his earlier finding that the appellants had failed to prove the extending of the loan of ₹ 1,40,000/by Appellant 1 to the respondent, that the appellants had failed to prove the execution, by the respondent, of the title documents dated 20th June 1990 (Ex. DW-3/A to DW-3/D). 58.[4] The learned ADJ proceeds, thereafter, to examine the appellants‘ contention of being in continued and uninterrupted possession of the suit property since 20th 58.[5] The learned ADJ observes, at the outset, that handing over of the possession by the respondent to the appellants on 20th June 1990 was predicated on the ground that the respondent had executed the alleged title documents, namely, the Agreement to Sell, affidavit, receipt in favour of Appellant 1 and GPA in favour of Appellant 2 on 20th June 1990, which assertion itself the appellants had been unable to prove. The learned ADJ proceeds, thereafter, to examine, individually, the documents on the basis of which the appellants were seeking to establish continuous and uninterrupted possession, by them, of the suit property since 20th June 1990, thus:

(i) Ration card:

The learned ADJ notes that DW-7 Pankaj Sood and DW- 10 Kamleshwar Upadhyay, from the Food and Supplies Office, Karol Bagh had merely proved the issuance of ration card in favour of Appellant 1 on 27th August 1996. The Master Register containing the earlier ration card issued to the appellants was stated not to be traceable. Inasmuch as the respondent did not dispute the occupation of the suit premises by the appellants after 1993, albeit as a licensee, the appellant was required to prove that he has continued occupation of the suit premises was, in fact, from 1990 and not from 1993. The Master Register which was produced by DW-7 did not establish this fact. The learned ADJ observed that the appellants had not produced the earlier ration card issued to them which would have been cancelled when they shifted to the suit premises. As such, the evidence of DW-7 and the ration card placed on record by the appellants did not establish that they were in continuous occupation of the suit premises since 1990.

(ii) KVS documents:

DW-6, T.R. Gulati, the UDC from the Kendriya Vidhyalaya, Gole Market had produced the application form dated 27th August 1991 (Ex. DW-5/1), for admission of the son of Appellant 1 along with the copy of his birth certificate (Ex. DW-5/2) and the other documents tendered by Appellant 1 while applying for admission of his son. In this regard, the learned ADJ observes that the address of the appellants, as entered in the school documents, was as provided by Appellant 1. In the absence of any other documents evidencing residence at the suit premises on 27th August 1991, such as, the telephone bills, gas connection or electricity bills, the learned ADJ opined that mere reflection of the suit property as the residence of the appellants in the application form tendered by the appellants on 27th August 1991 for admission of his son in the school was not sufficient as proof of residence of the appellants in the suit property on that date. The learned ADJ further observed, in this context, that as per Ex. DW-5/1, Master Mukesh Kumar, the son of Appellant 1 had passed KG from La Montessori School in the 1990-91 academic session. The School Leaving Certificate or the record from La Montessori School would, therefore, have evidenced the residence by the appellants, in the suit property on and after 20th June, 1990. The appellants, however, never produced any such record.

(iii) DW-5 Ashok Kumar

Apropos DW-5, the learned ADJ observed that, he never disclosed the date from which he had been residing in the neighbourhood or the vicinity of the appellants. Insofar as the ownership of the appellants over the suit property was concerned, the learned ADJ noted that DW-5 had stated, in his examination-in-chief, that he ―knew Appellant 1 as the owner of the suit property‖, but that, when questioned in cross examination, he acknowledged that he had never seen any sale deed of the suit property in favour of Appellant 1. As such, the learned ADJ did not choose to believe the assertion by DW-5, in his examination in chief, that he knew the Appellant 1 to be the owner of the suit property.

(iv) DW-8 Bhim Sen Vohra

As in the case of DW-5, DW-8 had also merely stated, in his examination-in-chief, that he knew the appellants who resided in front of his house. He, too, in cross examination, acknowledged that the sale deed of the suit property, in favour of Appellant 1, had not been executed in his presence and that he had never seen any sale deed in favour of the appellants. The learned ADJ, therefore, found the testimony of DW-8, in examination-in-chief, that he knew the Appellant 1 to be the owner of the suit property to be untrustworthy.

(v) DW-9 Om Prakash

DW-9 Om Prakash produced the office copy of GPA dated 15th November 1990 (Ex. DW-9/A) in which the suit property was reflected as the address of the appellants. The appellants had sought to contend that, as the respondent was a witness to Ex. DW-9/A, he was aware of the fact that, on 15th November 1990, the appellants were residing in the suit property. The learned ADJ has, however, not condescend to treat the mere reference, in Ex. DW-9/A, of the suit premises as the address of the appellants, as proof that the appellants were in fact residing at the suit premises as on 15th November 1990. He notes that, DW-9 did not produce any other document to support such a conclusion. In fact, in cross examination, DW-9 admitted that no ID proof of the respondent, who had purportedly signed as a witness in Ex. DW-9/A, was available on the record which he had brought with him. He further acknowledged that the record did not disclose any photograph of the respondent and that no one had identified the respondent. He in fact disclaimed all knowledge of the respondent, whose signatures purportedly figure in Ex. DW-9/A. No evidence, whatsoever, it was observed, had been led by the appellants to establish that Ex. DW-9/A was signed by the respondent as a witness. In these circumstances, the learned ADJ held that the appellants had failed to prove that the person who had signed as witness on Ex. DW-9/A was the respondent. As such, the mere mention, in the said document, of the suit property as the residence of the Appellant 1 was insufficient to prove the said fact. 58.[6] The learned ADJ thereafter addressed the plea of adverse possession, pleaded by the appellants in their written statement, while contesting the suit as being barred by time. The learned ADJ has observed that no plea of adverse possession had been taken by Appellant 1 in his reply dated 23rd August 2002 (Ex. DW-1/H) to the August 2002 (Ex. PW-1/E) of the respondent. No arguments on adverse possession were addressed by the appellants either orally or in the written statement. That apart, the learned ADJ held that it was not open to the appellants to simultaneously plead ownership as well as adverse possession. Further, the reliance, by the appellants, on the sale deed dated 1st August 2001 (Ex. DW-1/Q) also militated against the plea of adverse possession, as the said sale deed had purportedly been executed by Appellant 2 as the duly constituted attorney of the respondent, not as the owner of the premises. The ownership, by the respondent, of the suit property on 1st was, therefore, acknowledged and admitted by the appellants while allegedly executing the sale deed dated 1st August, 2001 (Ex. DW- 1/Q). Even for this reason, therefore, the learned ADJ holds that appellants could not seek to plead perfection of title by adverse possession. 58.[7] For these reasons, Issue No. 3, including the issue framed in respect of adverse possession were answered against the appellants and in favour of the respondent.

59. Re: Issue No. 4 – entitlement of respondent to decree of declaration. 59.[1] Following his finding, with respect to Issue no.3, that the appellants had failed to prove execution, by the respondent, of the title documents on 20th June 1990, including the GPA, whereunder Appellant 2 was constituted as the attorney of the respondent, the learned ADJ held the said documents, purportedly executed on 20th June 1990, to be forged and fabricated and declared the documents null and void and cancelled. Per consequence, Appellant 2 did not have any right, title, power or authority to execute the sale deed dated 1st August 2001 on behalf of the respondent, in favour of Appellant 2. As such, the sale deed dated 1st August 2001 was also declared null and void and treated as cancelled. Issue No. 4 was, accordingly, decided in favour of the respondent and against the appellants.

60. Re: Issue No. 5 – entitlement of respondent to decree of possession 60.[1] It was sought to be contended, by the appellants, that the assertion, of the respondent, to appear before the Assessment Collector, MCD, in response to call letters dated 4th May 2001 (Ex. PW-4/D[2]) and 8th June 2001 (Ex. PW-4/D[3]) issued under Section 124(5) of the Delhi Municipal Corporation Act (DMC Act) and the challenge to the assessment order dated 20th June 2001 (Ex. PW-4/D[1]) indicated that the respondent had no right or interest left in the suit property, as he had already sold the suit property to Appellant 1. The learned ADJ did not agree with the said submission. The holds that mutation entries in the MCD record and the House Tax record did not prove ownership of the suit property by Appellant 1, in view of the settled legal position in that regard. 60.[2] Reliance was also placed, by the appellants, on Ex. DW-1/D, E, F, G (colly), H, I, J. K, L, M, N and P supra. Regarding these documents, the learned ADJ holds that the address of the appellants, as reflected in the said documents, would obviously be the address as provided by the appellants themselves and could not, therefore, be regarded as proof that the appellants were residing in the suit premises on the date when the said documents were issued or, particularly, on 20th 60.[3] In view of the aforesaid, the learned ADJ holds the respondent entitled to a decree of possession in respect of the suit premises. 60.[4] Aggrieved by the aforesaid judgment dated 24th December 2018, the appellants have filed the present appeal before this Court under Section 96 read with Order XLI of the Code of Civil Procedure, 1908(CPC). Rival Contentions

61. I have heard Mr. Alok Kumar, learned Counsel for the appellant and Mr. Naresh Thanai, learned Counsel for the respondent, at length.

62. Mr. Alok Kumar submits that while, in Suit 45/2002, earlier instituted by the respondent against the appellants, it was contended that the inter-se separation of the business of Appellant 1 and the Respondent took place before 14th January, 1991, in CS DJ 61171/2016, it was contended that the partnership broke in 2000. Mr. Alok Kumar drew especial attention to the query put to PW-1, and to answer the issue, as reproduced in para 30 supra. Mr. Alok Kumar submits that this was a major lacuna in the case that the respondent was seeking to set up, and discredited the claim in the plaint of the respondent.

63. Mr. Alok Kumar further sought to point out that the appellants had placed, on record, volume of material to indicate continuous and uninterrupted possession, by them, of the suit property, from 20th June

1990. He submits that the import of this evidence has not been properly appreciated by the learned ADJ. Seen as a whole, Mr. Alok Kumar would seek to contend that the appellants had clearly made out a case of continuous and uninterrupted possession of the suit property since 1990, thereby belying the contention of the respondent that he had permitted the appellants to occupy the suit property, as licensees, w.e.f. 1993.

64. Adverting, next, to the case that the appellant had sought to set up regarding the Pay Order of ₹ 1,40,000/- made out in favour of Agia Ram, Mr. Alok Kumar submits that it could not reasonably be believed that the respondent would withdraw ₹ 3,00,000/- from the State Bank of Bikaner and Jaipur, and proceeds to the State Bank of Patiala, and have the Pay Order prepared from the said bank. He submits that it was clear, therefore, that the Pay Order of ₹ 1,40,000/had in fact been got prepared not by the respondent but by the Appellant 1. In order to establish this fact, Mr. Alok Kumar submits that the appellants had sought to lead the evidence of a clerk in the State Bank of Patiala as DW-2, but, as the records of the Bank had been weeded out, in accordance with the Circulars applicable in that regard, DW-2 could not corroborate the appellants stand. Apropos the statement, in the affidavit-in-evidence of the respondent as PW-1, that he had been drawn ₹ 3,00,000/- from his account at the State Bank of Bikaner and Jaipur, Mr. Alok Kumar invited attention to the deposition of PW-1 in cross-examination, particularly to the following questions and answers therein: ―... The State Bank of Bikaner and Jaipur, Delhi, from where I had withdrawn ₹ 3 lakhs on 9.4.90, was situated near DCM Mill at the intervening point of time. It is correct that the intervening point of time I was staying at my address at 9035, Ganesh Lines, Kishan Ganj, Delhi and the above referred bank was about 1 km far away from my aforesaid address. The State Bank of Patiala, Model Basti and the State Bank of Bikaner and Jaipur, Delhi was about of equal distance. Ques: Whether the route from your aforesaid address at Ganesh Lines towards State Bank of Bikaner and Jaipur, Delhi was going to State Bank of Patiala, Model Basti or not? Ans: No. The route from my aforesaid address to the State Bank of Bikaner and Jaipur was not going to State Bank of Patiala, Model Basti. Ques: Whether you have your account in State Bank of Patiala, Model Basti or not? Ans: No.‖ There was no reason, according to Mr. Alok Kumar, for the respondent withdrawing money from his account in the State Bank of Bikaner and Jaipur and proceeding to State Bank of Patiala, where he did not have an account, to prepare a Pay Order. The preponderance of probability was, therefore, according to Mr. Alok Kumar, that the Pay Order was in fact got prepared by Appellant 1 from his own account. It was because of this financial assistance, extended by Appellant 1 to the Respondent that, submits Mr. Alok Kumar, the respondent executed the title documents on 20th June, 1990.

65. Without prejudice to the above, Mr. Alok Kumar submits that the relief of increase in interest @ 10% every three years till the date of handing over of possession of the suit property to the respondent was beyond the reliefs sought by the respondent in his plaint. This, he submits, was impermissible.

66. Mr. Alok Kumar has also submitted, towards the conclusion of his arguments, that, in cross-examination, the respondent as PW-1 admitted that Appellant 1 had forcibly raised constructions on the suit property by way of a second floor and a third floor and was continuing to raise such constructions. Despite this, he points out that PW-1 acknowledged that he merely issued notices to Appellant 1, since 2000, requesting him to vacate the suit property.

67. According to Mr. Alok Kumar, therefore, the respondent had failed to make out a case for grant of the reliefs sought in the plaint instituted by him against the appellants.

68. Responding to the submissions of Mr. Alok Kumar, Mr. Naresh Thanai, learned Counsel for the respondent, responded, apropos the contentions of Mr. Alok Kumar that there was a discrepancy regarding the year in which there was separation inter se between Appellant 1 and the respondent in their business, that, as Appellant 1 and the respondent were property dealers, multiple rifts in business relations were not unusual. He points out that, apart from advancing a bald contention that on 20th June 1990, the respondent had executed title documents in favour of Appellant 1 and Appellant 2, the said appellants had not placed the said title documents on record. He also points out that no such contention was to be found in the reply dated 23rd August, 2002, of the appellants, to the legal notice dated 8th August, 2002, of the respondent.

69. Mr. Thanai submits that the Pay Order dated 20th April 1990 of ₹ 1,40,000/- in favour of Agia Ram was got prepared by the respondent after withdrawing, from his account in the State Bank of Bikaner and Jaipur, ₹ 3,00,000/- on 9th April 1990. He submits that there was nothing unnatural in the respondent choosing to get the Pay Order prepared from another bank, even if the bank was one in which Appellant 1 had an account. As the respondent had withdrawn ₹ 3,00,000/-, so as to enable him to prepare a Pay Order of ₹ 1,40,000/in favour of Agia Ram, Mr. Thanai submits that there was no occasion for his client to borrow any amount from Appellant 1. He points out, in this regard, that Appellant 1 has not placed, on record, any credible evidence to indicate either that his bank account had ₹ 1,40,000/- in it on 24th April 1990 or that the Pay Order for ₹ 1,40,000/- was prepared from Appellant 1‘s bank account. As such, Mr. Thanai points out that, while the respondent had proved the fact of withdrawal, from his account in the State Bank of Bikaner and Jaipur, of an amount of ₹ 3,00,000/-, the appellant had failed to prove that he had got prepared the Pay Order of ₹ 1,40,000/- from his account. On preponderance of probabilities therefore, Mr. Thanai submits that, prima facie, the Pay Order in favour of Agia Ram was proved to have been prepared by the respondent and not by Appellant 1.

70. Mr. Thanai submits that, on all other aspects, the evidence has been examined, thoroughly, by the learned ADJ, and no occasion arises for this Court to arrive at any contrary finding, in exercise of its appellate jurisdiction under Section 96 of the CPC. He submits that the appellants had failed to prove any title, validly held by them in respect of the suit property. Non-titular possession of property irrespective of the length thereof, submits Mr. Thanai, cannot confer a right to continue in such possession, unless the possession is adverse or hostile to the opposite party. No case for holding that the appellants had perfected title by adverse possession, submits Mr. Thanai, can be said to exist in the present case.

71. With respect to the contention of Mr. Alok Kumar that relief had been granted by the learned ADJ in excess of that claim in the plaint, Mr. Thanai points out that trial in the suit had continued for over 10 years, and the relief to which Mr. Alok Kumar eludes was in the nature of compensatory damages, which the learned ADJ was well within his power to award.

72. As such, Mr. Thanai submits that no occasion arises for this Court to interfere with the well-reasoned decision of the learned ADJ.

73. Mr. Alok Kumar arguing in rejoinder, rebuts the contention of Mr. Thanai that the relief of increase in interest of 10% every three years till handing over of possession of the suit can be treated to be in the nature of compensatory damages, as compensatory damages were not even sought in the plaint instituted by the respondent. He also seeks to discredit the contention of Mr. Thanai that there could be multiple separations amongst partners in a partnership firm, by submitting that no such assertion is to be found in the evidence of the respondent, deposing as PW-1. He draws the attention of the Court to para 5 of the affidavit in evidence of Appellant 1, deposing as DW-1, in which Appellant 1 has specifically asserted that he had, by way of Pay Order no. 21904[6] dated 24th April, 1990, for ₹ 1,40,000/-, drawn on the State Bank of Patiala, Model Basti, Delhi, extended financial assistance to the respondent, to substantiate which he had sought to call the clerk from the State Bank of Patiala who, unfortunately, could not assist as the records stood weeded out. Adverting to the crossexamination of Appellant 1 as DW-1, Mr. Alok Kumar submits that the respondent did not even put a suggestion, to Appellant 1 as DW-1, that he did not have a balance of ₹ 1,40,000/- in his account in the State Bank of Patiala. He, therefore, reiterates his prayer that the impugned order passed by the learned ADJ needs to be set aside and CS DJ 611271/16, instituted by the respondent against the appellants, be dismissed. Analysis

74. Based on the record, the impugned judgment dated 24th December, 2018 of the learned ADJ and rival submissions advanced at the bar, the following questions arise for determination in the present case:

(i) Whether the respondent had succeeded in proving his ownership of the suit property?

(ii) Whether the appellants had succeeded in proving transfer of ownership of the suit property from the respondent to Appellant 1? This, in turn, would raise the following subsidiary points for determination: (a) Whether the respondent had succeeded in proving that he had extended a loan of ₹ 1,40,000/- to the appellant by way of Pay Order dated 24th April, 1990 executed in favour of Agia Ram? (b) Whether the Appellant 1 had succeeded in establishing that there was an agreement between Appellant 1 and the respondent that, in case the said amount was not returned within one month, the respondent would execute title documents in respect of the suit property in favour of Appellant 1?

(c) Whether, in fact, the respondent had executed title documents in the form of agreement to sell, receipt and affidavit dated 20th June 1990 in favour of Appellant 1 and GPA dated 20th June 1990 in favour of Appellant 2?

(d) Whether, Appellant 1 succeeded in proving acquisition of ownership and title over the suit property under sale deed dated 1st August 2001, executed by Appellant 2 in favour of Appellant 1?

(iii) Whether Appellant 1 succeeded in proving that appellants were placed in possession of the suit property by the June 1990 and had continued in uninterrupted possession of the suit property thereafter?

(iv) Whether there was perfection of title of the appellants, qua the suit property, by adverse possession?

(v) Whether, therefore, CS DJ 611271/2016, instituted by the respondent against the appellants was barred by time?

75. I proceed to analyze these issues seriatim. Re. Acquisition of ownership and title by respondent over the suit property

76. The appellants do not dispute the acquisition of title by the respondent, over the suit property, under registered sale deed dated 26th April 1990, executed between Agia Ram and the respondent. As such, the fact that the respondent acquired title over the suit property on 26th April 1990 stands proved.

77. The appellants set up a claim of ownership over the suit property on the basis of registered Sale Deed dated 1st (Ex. DW-1/Q). This Sale Deed did not contain the signature of the respondent, and was denied by the respondent. The Sale Deed was admittedly executed by Appellant 2 in favour of Appellant 1. Appellant 2 purportedly executed the Sale Deed as the constituted attorney of the respondent. The authority to act as the constituted attorney of the respondent was claimed by Appellant 2 on the basis of GPA dated 20th June 1990 (Ex. DW-3/13), purportedly executed by the respondent. The GPA along with other title documents dated 20th June 1990 were, in turn, alleged to have been executed by the respondent on account of failure, on the part of the respondent, to repay the loan of ₹ 1,40,000/- extended by Appellant 1 by way of financial assistance to enable the respondent to purchase the suit property from Agia Ram.

78. The respondent denied having executed the said GPA.

79. Execution of Pay Order No. 21904[6] dated 24th April 1990 issued by State Bank of Patiala in favour of Agia Ram is not in dispute. The respondent claimed to have got the Pay Order issued on the basis of an amount of ₹ 3,00,000/- withdrawn by the respondent from his account in the State Bank of Bikaner and Jaipur.

80. The respondent, as PW-1, specifically asserted in para 2, of his affidavit in evidence, thus: ―That I had purchased property bearing Nos. XVI/201 and 1/2, XVI/225 and XVI/226 (New), Ward No. XVI, Plot NO. 18, AC Block, Joshi Road, Karol Bagh, New Delhi measuring about 111 Sq. Yds. for a consideration of Rs. 1,80,000/- from its owner Shri Agia Ram S/o Shri Shanker Dass vide Registered Sale Deed dated 26.04.1990. The copy of the Sale Deed dated 26.04.1990 is Ex. PWl/A. Out of the total sale consideration of Rs. 1,80,000/-, Rs. 40,000/- were paid in cash to Shri Agia Ram by me and Rs. 1,40,000/- were paid by way of Pay Order No. 291046 dated 24.04.1990 which was got issued by me from State Bank of Patiala, Model Basti, New Delhi. I had withdrawn money to the tune of Rs. 3,00,000/- from my own Bank Account No. 14426 at State Bank of Bikaner & Jaipur, Delhi on 09.04.1990 and out of this, the total sale consideration was paid by me to Shri Agia Ram.‖

81. With respect to the aforesaid assertion in para 2 of the affidavit in evidence of the respondent deposing as DW-1, that he had withdrawn ₹ 3,00,000/- from his bank account no. 14426 at the State Bank of Bikaner and Jaipur on 9th April 1990 and that, out of the said amount, he had got the Pay Order for ₹ 1,40,000/- in favour of Agia Ram issued by the State Bank of Patiala, the only queries put to him in cross-examination, on which Mr. Alok Kumar also placed reliance, were with respect to the location of the State Bank of Patiala vis-a-vis the residence of the respondent and the State Bank of Bikaner and Jaipur where he had his account. To my mind, these questions are really irrelevant. The appellants elicited, from the respondent (as PW- 1), in cross-examination, that the State Bank of Patiala was only about one kilometre away from his residence. It is not, therefore, as though the respondent had travelled a large distance to get the Pay Order issued, even while his own bank was close at hand. In crossexamination, the respondent, as PW-1, clarified that the State Bank of Patiala and the State Bank of Bikaner and Jaipur were equidistant from his residence. In other words, both the banks were at a distance of approximately one kilometre from his residence. The mere fact that the State Bank of Patiala may not have fallen en route from the residence of the respondent to the State Bank of Bikaner and Jaipur cannot, by any stretch of imagination, be regarded as a reason to discredit the respondent‘s assertion that he had, in fact, withdrawn money from the State Bank of Bikaner and Jaipur and had the Pay Order issued at the State Bank of Patiala. Both the banks being close to his residence, such a course of action cannot be said to be outside the ordinary course of human conduct within the meaning of Section 114 of the Indian Evidence Act.

82. Even otherwise, it is open to any person to withdraw money from one bank and have a Pay Order issued by another bank on tendering the requisite amount. The amount withdrawn by the respondent from his account in the State Bank of Bikaner and Jaipur was more than twice the amount required for the Pay Order to be issued in favour of Agia Ram. The testimony of the respondent, therefore, commends itself to acceptance.

83. As against this, Appellant 1 has not been satisfactorily able to prove any of the ingredients which were required to be established, by him, to prove a case that he had sought to set up, namely, that (i) he had, in his account in the State Bank of Patiala, an amount of ₹ 1,40,000/-, (ii) from the said account, he had withdrawn ₹ 1,40,000/on 24th April 1990, (iii) he had entered into an oral agreement with the respondent, whereunder the respondent was required to execute title deeds in respect of the suit property in favour of the appellants, on the respondent being unable to repay the aforesaid loan amount of ₹ 1,40,000/-, (iv) the respondent, in fact, executed title documents in the form of Agreement to Sell, Receipt, Affidavit and GPA in favour of the appellants on 20th June 1990 and (v) on the basis of the authority conferred by the GPA so purportedly executed on 20th Appellant 2 executed the Sale Deed on 1st August 2001 in favour of Appellant 1 acting on behalf of the respondent.

84. There is no evidence worth the name to indicate that Appellant 1 had, on 24th April 1990, an amount of ₹ 1,40,000/- in his account in the State Bank of Patiala or that he had, from the said Account NO. 30153, issued, on 24th April 1990, Pay Order of ₹ 1,40,000/- in favour of Agia Ram. Appellant 1 did not choose to place on record the bank statement of his aforesaid account no. 30153 as it existed on 24th April 1990, to indicate either that an amount of ₹ 1,40,000/- was present in the said account on that date or that an amount of ₹ 1,40,000/- was debited from the said account on that date. He called, into the witness box, Nand Kishor, the Clerk from the State Bank of Patiala, as DW-2. The Clerk could not corroborate the version of Appellant 1, as he submitted that the records dating back to 1990 had been weeded out by the Bank in accordance with circular dated 24th January 2001 (Ex. DW-11/B), issued by the Bank. There was, therefore, no evidence whatsoever to indicate that, in fact, the Pay Order of ₹ 1,40,000/issued in favour of Agia Ram on 24th April 1990, was got issued by Appellant 1, by dipping into his own account.

85. No evidence of any oral agreement or understanding, between Appellant 1 and the respondent, whereunder Appellant 1 was to provide financial assistance to the respondent of ₹ 1,40,000/- and on the respondent failing to liquidate the said financial assistance within one month, the respondent was to execute the title deeds in respect of the suit property in favour of the Appellant 1, was placed on record.

86. Appellant 1 sought to contend that recitals, supporting his aforesaid assertions, were contained in the Sale Deed dated 26th April 1990 (Ex. PW-1/A), whereunder the suit property was sold by Agia Ram to the respondent. A reading of the said Sale Deed dated 26th April 1990 (Ex. PW-1/A) reveals, however, that this is not the case. There is no indication, in the Sale Deed, of the Pay Order of ₹ 1,40,000/- being issued at the instance of Appellant 1. The Sale Deed, in fact, states the following: ―And whereas the Vendor for his legal needs and bonafide requirements has agreed to sell, transfer, convey, all his leasehold rights, title interest in the said plot/property for a consideration amount of Rs.1,00,000/- (Rupees one Lac Eighty Thousand only) to the Vendee and the Vendee has also agreed purchase the same for a sum as aforesaid.

NOW THIS SALE DEED WITNESSETH AS UNDER:-

1. That in pursuance of the aforesaid property with leasehold rights, title interest fittings, fixtures whatsoever the vendor possess in it unto the vendee for a consideration amount of Rs.1,80,000/- (Rupees One Lac Eighty Thousand Only) and the vendee has agreed and accepted to purchase the same for a sum as aforesaid. The Vendee has paid a sum of Rs.1,80,000/- as detailed below to the vendor and the vendor do hereby admits the receipt of the entire consideration and no balance is left.

DETAILS OF PAYMENT

1. A sum of Rs. 40,000/- (Rupees forty thousand only) has already been received by the Vendor,

2. A sum of Rs.1,40,000/- (Rupees one Lac Forty Thousand only) vide Pay Order No. 215046 dt 24.4.90 issued by the State Bank of Patiala, Model Basti, New Delhi before the office of Sub-Registrar at the time of registration of this sale deed.‖

87. Clearly, the Sale Deed dated 26th April 1990 envisages the balance payment of ₹ 1,40,000/- (excluding the amount of ₹ 40,000/already received by Agia Ram) being made by the respondent. There is no indication that this amount would be paid by Appellant 1 on behalf of the respondent or by way of any kind of financial assistance.

88. In para 5 of his affidavit in evidence, Appellant 1, as DW-1, deposed as under: ―5. That I state that in view of the family relations with the plaintiff and further in view of the above assurances of the plaintiff, I extended the above financial assistance by way of a Pay Order no. 21904[6] dated 24.04.90, which was drawn by me from my own saving bank account with Bank of Patiala. Model Basti. Delhi, in the name of the owner of the property in which the suit property situates i.e. Sh. Agia Ram. Istate that I rely on the records of the Bank of Patiala, Model Basti. Delhi regarding Pay Orders to prove the fact above Pay Order was issued form my account with above bank and intend to prove the same by summoning the witness for the said bank with their relevant record.‖

89. Mr. Alok Kumar placed reliance on a suggestion put by the learned Counsel for the respondent to Appellant 1 (deposing as DW- 1), recorded in the record of cross-examination thus: ―It is incorrect to suggest that the Pay Order prepared by me was made from the funds available by the plaintiff.‖

90. According to Mr. Alok Kumar, the afore-extracted recording in the cross-examination of Appellant 1, deposing as DW-1, indicated that the respondent had admitted and acknowledged the fact that the Pay Order dated 24th April 1990 had, in fact, been issued by him, albeit out of the funds provided by the respondent.

91. I cannot agree. A suggestion, even while being weak as a piece of evidence, cannot be accorded pre-eminence over the statement on oath/solemn affirmation made by the respondent, as PW-1, in his testimony. The respondent, as PW-1, had clearly and categorically stated that, on 9th April 1990, he had withdrawn an amount of ₹ 3,00,000/- from his account from the State Bank of Bikaner and Jaipur and that he had utilized ₹ 1.40,000/- out of the said withdrawn amount of ₹ 3,00,000/- to get the Pay Order executed in favour of Agia Ram in the State Bank of Patiala. This being the clear stand of Respondent, in my opinion, the learned ADJ has correctly refused to accord preeminence to the purported suggestion, made by learned counsel who appeared for Respondent before the learned ADJ, as reflected in the afore-extracted sentence from the record of cross-examination of the petitioner as DW-1.

92. The learned ADJ has, therefore, correctly held that Appellant 1 had failed to prove, conclusively, that the Pay Order dated 24th April 1990 for ₹ 1,40,000/- in favour of Agia Ram was got issued by Appellant 1 from his bank account no. 30153, in the State Bank of Patiala.

93. In this context, it is worthwhile to recollect the well settled principle of evidence that a person, who withholds the best evidence, cannot seek to rely on other circumstantial evidence, which is expected to be in his possession, to prove his case. Though the ―best evidence rule‖ does not find specific statutory mention in this country, the nearest statutory avatar of the principle being found in Sections 91 and 92 of the Indian Evidence Act, 1872, the Supreme Court has, time and again, emphasized the principle as salutary and applicable to appreciation of evidence. Para 21 of the report in Roop Kumar v. Mohan Thedani[1] pithily crystallizes the principle thus: ―21. The grounds of exclusion of extrinsic evidence are: (i) to admit inferior evidence when law requires superior would amount to nullifying the law, and (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.‖ Having failed to place on record, statement of bank account no. 30153 of Appellant 1 in the State Bank of Patiala as on 24th April 1990, no inferential conclusion to the effect that Appellant 1 had, in fact, got the Pay Order for ₹ 1,40,000/-, in favour of Agia Ram, issued from the State Bank of Patiala, would be justified in law.

94. Not much would, however, turn on this aspect, as the appellants also failed to prove the existence of any understanding with the respondent, to the effect that, if the respondent failed to pay ₹ 1,40,000/- to the appellants within a month of the alleged extending of financial assistance by the Appellant 1, the respondent would execute the title deeds in respect of the suit property in favour of the appellants. According to the appellants, recitals to the said effect were contained in the Sale Deed dated 26th April 1990, whereunder the suit property had been sold by Agia Ram to the respondent. No such recital, as already noted, figured in the said Sale Deed. Nor does any such recital, in that matter, even figure in the Sale Deed dated 1st August 2001 (Ex. DW-1/Q) executed by Appellant 2 purportedly as the constituted attorney of the respondent, in favour of Appellant 1, conveying the suit property. As the learned ADJ has correctly held, as the withdrawal of ₹ 3,00,000/- by the respondent on 9th April 1990 from account no. 14426 in the State Bank of Bikaner and Jaipur stood proved, there was no occasion or necessity for the respondent to borrow ₹ 1,40,000/- from Appellant 1.

95. As such, no evidence, whatsoever, has been placed on record, to indicate that any such agreement existed between Appellant 1 and the respondent, which obligated the respondent to issue title documents, in respect of the suit property, in favour of the appellants, in default of liquidation, by the respondent, of the alleged financial assistance of ₹ 1,40,000/- allegedly extended by Appellant 1 to the respondent.

96. Nor could the appellants provide any credible material to substantiate the submission that Agreement to Sell, Affidavit, Receipt and GPA were executed on 20th June 1990, by the respondent in favour of the appellants.

97. As the originals of the title documents alleged executed by the June 1990 were not placed on record by the appellants, and the copies which were placed on record were unregistered, in the face of the denial, by the respondent, of his signatures on the said documents and the very fact that he had ever executed them, the onus was on the appellants to strictly prove that the said documents had in fact been signed and executed by the respondent. No parallel documentary evidence, to establish this assertion, was cited by the appellants. The appellants sought, in this regard, only to rely on the oral evidence of himself, as DW-1, and Avdesh as DW-3.

98. In his affidavit by way of examination-in-chief, Appellant 1, as DW-1, averred, in para 8, thus: ―8. That state that the plaintiff conveyed the suit property to me by way of handing over a duly executed title documents by him in my favour. The title documents duly executed and handed over by the plaintiff to me, in respect of the suit property, was in the nature of Agreement to Sell dated 20.06.90, General Power of attorney dated 20.06.90 in the name of my wife i.e. defendant no.2, Affidavit dated 20.06.90 and Receipt dated 20.06.90, thereby acknowledging the above payment made by me for and on his behalf to the above named owner of the property, in which the suit property situates. The above referred title documents are already marked as Mark Z-3, Z-4, Z-5 and Z-6, during the evidence of the plaintiff‖

99. In cross-examination, after initially denying the suggestion that the respondent had not, in fact, executed the aforesaid title documents on 20th June 1990, Appellant 1, as DW-1, stated that the documents had been signed by the respondent at the residence of Appellant 1. A query put to Appellant 1 and his response in that regard read thus: ―Que: Do you know at which place the alleged documents of dt.20.06.90 were got prepared? Ans: The plaintiff had came to my house alongwith draft of the documents dt.20.06.90 and had executed by signing the same at my home.‖

100. Later, during the course of cross-examination on the same day, however, Appellant 1, as DW-1, went on to depose as under: ―It is incorrect to suggest that the documents dt.20.06.1990 was not attested from Notary Public. It. is correct that the documents dt.20.06.1990 are not registered documents. I am not able to recollect at this stage that where the attestation of Notary Public on the documents dt.20.06.1990 was done or on which day the same was done or that who was the Notary Public.‖

101. As against this, DW-3 Awadhesh, who was the brother of Appellant 2 and the brother-in-law of Appellant 1, in his examinationin-chief, stated: ―I have seen the Mark-Z[3] to Mark-Z[6] which are the photocopies and all these documents bears my signatures at point at A, signature of Sh.Raiesh Narain Sharma at point B, signature of Sh. Laiji Kushwaha at point C and signature of Sh. Suraj Bhan at point D which are respectively exhibited as EX.DW3/A to Ex.DWS/D‖

102. In cross-examination, DW-3 went on, however, to testify as under: ―These documents were signed firstly by Sh.Raiesh Narain Sharma, secondly by Sh. LaIji Kushwaha, thirdly by Sh. Suraj Bhan and after that by me, in the evening time at about 6:00 pm. It is incorrect to suggest that the signatures of Sh.Rajesh Narain Sharma pointed out on the documents are not the signatures of Sh.Rajesh Narain Sharma on Ex.DW3/A to ExDW3/D and also marked as Mark-Z[3] to Mark-Z[6].‖

103. As the learned ADJ has correctly noted, there is a great degree of inconsistency in the depositions of Appellant 1 as DW-1 and Avdesh as DW-3, regarding execution of the title documents on 20th June 1990. Appellant 1 stated, as DW-1, in cross-examination, firstly that the documents were executed at his residence and, later, that they were notarized. He does not state, anywhere, that the Notary Public arrived at his residence to notarize the documents. Indeed, it would be difficult to believe that the Notary Public would travel to the residence of Appellant 1 to notarize the documents on 20th June 1990. If, however, the documents had indeed been notarized by the Notary Public at the residence of Appellant 1, he would definitely remember that fact as it is extremely unusual for a Notary Public to notarize documents at the residence of one of the parties. When queried as to where the documents were notarized, however, the response of Appellant 1, in cross-examination, was that he did not recollect where notarization took place. This itself casts considerable doubt on the assertion of Appellant 1 that the documents were executed at his residence or that they were notarized at his residence. The two assertions, figuring in the cross-examination of Appellant 1 on the very same day, appeared to be mutually contradictory.

104. The confusion increases when one peruses the testimony of DW-3 Avdesh. DW-3, in examination-in-chief, stated that the title documents were brought by the respondent to the residence of Appellant 1, where Appellant 1 was present along with respondent, Suraj Bhan and himself. He, however, goes on to state that the documents were signed by the respondent, Appellant 1, Suraj Bhan and himself, and that signatures were first affixed by the respondent, thereafter by Appellant 1, thereafter by Suraj Bhan and finally by himself, with DW-3 affixing his signatures on the documents at around 6:00 PM. Strangely, DW-3 does not depose that notarization of the documents took place at the residence of Appellant 1. It is ex facie difficult to believe that the Notary Public would remain in the premises of Appellant 1 till 6:00 PM when DW-3 purportedly affixed his signatures on the documents.

105. Furthermore, the sole independent person, who purportedly also signed the documents, namely Suraj Bhan, was never cited as a witness. For reasons known only to himself, the appellants chose to cite only Avdesh, who happened to be his brother-in-law and brother of his wife Appellant 2 as a witness. No exception can be taken on the observations by the learned ADJ that, as the brother of Appellant 2 and brother-in-law of Appellant 1, the testimony of DW-3 could not be taken at face value especially in view of the inherent contradictions contained in it and the discrepancies between the said testimony and the testimony of Appellant 1 himself as DW-1.

106. I find myself in agreement with the observations of the learned ADJ to the effect that, as the respondent was disputing his signature on the alleged title documents dated 20th June 1990 (Ex. DW-3/A to Ex. DW-3/D), the appellants could have had the issue resolved by seeking expert evidence or referring the documents to a handwriting expert. He did not choose to do so.

107. Moreover, Avdesh, DW-3 deposed that the cheque/draft was handed over by Appellant 1 to the respondent ―at the time of execution‖ of the alleged title documents Ex. DW 3/A to Ex. DW 3/D on 20th June 1990. This is directly contrary to the assertions of Appellant 1 that he had extended financial assistance to the respondent by way of a Pay Order dated 24th April 1990. Where, therefore, Appellant 1 himself, as DW-1, deposed that he had executed the Pay Order and handed it over to the respondent on 24th April 1990, DW-3 Avdesh testified that the Pay Order was handed over at the time of execution of the alleged title documents on 20th June 1990 (as the reference to ―cheque or draft‖, in the cross-examination of DW-3 could be to no instrument other than the Pay Order).

108. In the light thereof, I am in agreement with the findings of the learned ADJ that the appellants failed to establish the factum of execution, by the respondent, of the alleged title documents, namely the Agreement to Sell, GPA, Receipt and Affidavit on 20th

109. In view of the failure, on the part of the appellants, to prove (i) the existence of ₹ 1,40,000/- in account no. 30153 of Appellant 1 in the State Bank of Patiala, (ii) the assertion that Appellant 1 had got the Pay Order for ₹ 1,40,000/- issued by the State Bank of Patiala out of the money lying in account no. 30153, (iii) the existence of any oral or other understanding, between Appellant 1 and the respondent, to the effect that Appellant 1 would lend financial assistance of ₹ 1,40,000/to the respondent by way of a Pay Order favouring Agia Ram and that, on the respondent failing to return the money within one month, the respondent would execute title documents in respect of the suit property in favour of appellants and (iv) the very fact of execution, by the respondent of the alleged title documents on 20th June 1990, the reliance, by the appellants, on the sale deed dated 1st August 2001 can be of no use to the case that the appellants seek to set up. Admittedly, the sale deed dated 1st August 2001 does not carry the signatures of the respondent. The respondent, for his part, squarely denied the documents. The sale deed was executed by Appellant 2 in favour of her husband Appellant 1. In its very nature, therefore, being a document of sale executed by a wife in favour of her husband, the document became suspect. Appellant 2 claimed to have the authority to execute the document on the basis of the GPA dated 20th April 1990 (Ex. DW-3/13). Inasmuch as the appellants failed to prove the execution of the GPA dated 20th June 1990 itself, the appellants also, per corollary, failed to prove the existence of any authority in Appellant 2 to execute a document of sale, in respect of the suit property, in favour of her husband Appellant 1.

110. Resultantly, as has been rightly held by the learned ADJ, no title in the suit property could be said to have passed from the respondent to Appellant 1 on the basis of the sale deed dated 1st August 2001 or the alleged title documents dated 20th

111. The appellants, therefore, failed to discharge the onus, on them, to prove ownership over the suit property. Were the Appellants Licensees?

112. The next issue which arises for consideration is whether the appellants were licensees in respect of the suit property, as contended by the respondent. I have already expressed my agreement with the findings of the learned ADJ that the transfer of ownership in respect of the suit property from Agia Ram to the respondent, vide registered sale deed dated 26th April 1990, was not denied, and that the appellants had failed to establish that, thereafter, the ownership of the suit property stood transferred from the respondent to Appellant 1. In this scenario, the right of the appellants to occupy the suit property could only be either as a licensee or as persons whose title to the suit property stood perfected by adverse possession. In the event that no case of adverse possession could be said to exist, the only authority, of the appellants to remain in possession of the suit property, would be as licensees of the respondent. Appellants‘ claim to uninterrupted continuous and adverse possession since 20th

113. The appellants sought to contend that they had been in continuous possession of the suit property since 20th June 1990, when they were placed in such possession by the respondent.

114. At this juncture, it needs to be noted that, even if it were to be assumed that the appellants were in continuous and uninterrupted possession of the suit property since 20th June 1990, that would not result in the creation of any right in the appellants to continue in such possession, if unless the possession was adverse to the real owner. Short of adverse possession, continuous possession, irrespective of the length of time for which it continues, does not ripen into a right to continue in such possession. In this regard, one may refer to Mallikarjunaiah v. Nanjaiah[2], Uttam Chand v. Nathu Ram[3], Brijesh Kumar v. Shardabai[4], Chatti Konati Rao v. Palle Venkata Subba Rao[5].

115. On adverse possession, the law stands authoritatively crystalised in the recent judgment of the Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur[6], the relevant passages of which may be reproduced thus: ―9. In Balkrishan v. Satyaprakash[7], decided by a coordinate Bench, the plaintiff filed a suit for declaration of title on the ground of adverse possession and a permanent injunction. This Court considered the question, whether the plaintiff had perfected his title by adverse possession. This Court has laid down that the law concerning adverse possession is well settled, a person claiming adverse possession has to prove three classic requirements i.e. nec — nec vi, nec clam and nec precario. The trial court, as well as the first appellate court, decreed the suit while the High Court dismissed it. This Court restored the decree passed by the trial court decreeing the plaintiff suit based on adverse possession and observed: (SCC pp. 501-03, paras 6-7, 14 & 17) ―6. The short question that arises for consideration in this appeal is: whether the High Court erred in holding that the appellant had not perfected his title by adverse possession on the ground that there was an order of a Tahsildar against him to deliver possession of the suit land to the auction-purchasers.

7. The law with regard to perfecting title by adverse possession is well settled. A person claiming title by adverse possession has to prove three “nec” — nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate in continuity in publicity and in extent. In S.M. Karim v. Bibi Sakina[8] speaking for this Court Hidayatullah, J. (as he then was) observed thus: (AIR p. 1256, para 5) ‗5. … Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.‘ ***

10. In Des Raj v. Bhagat Ram[9], a suit was filed by the plaintiff for declaration of title and also for a permanent injunction based on adverse possession. The courts below decreed the suit of the plaintiff on the ground of adverse possession. The same was affirmed by this Court. This Court considered the change brought about in the Act by Articles 64 AIR 1964 SC 1254 and 65 vis-à-vis to Articles 142 and 144. Issue 1 was framed, whether the plaintiff becomes the owner of the suit property by way of adverse possession? This Court has observed that a plea of adverse possession was indisputably be governed by Articles 64 and 65 of the Act. This Court has discussed the matter thus: (SCC pp. 648-50, paras 20, 22, 24, 26-27 & 31) ―20. A plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act. ***

22. The mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in suit exclusively and not for and on behalf of other co-owners also is evident from the fact that the appellant-defendants themselves had earlier filed two suits. ***

28. We are also not oblivious of a recent decision of this Court in Govindammal v. R. Perumal Chettiar10 wherein it was held: (SCC p. 606, para 8) ‗8. … In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case.‘ ***

31. We, having regard to the peculiar facts obtaining in the case, are of the opinion that the respondent-plaintiff had established that he acquired title by ousting the appellant-defendants by declaring hostile title in himself which was to the knowledge of his co-sharers.‖ (Emphasis supplied)

11. In Kshitish Chandra Bose v. Commr. of Ranchi11 a three-Judge Bench of this Court considered the question of adverse possession by a plaintiff. The plaintiff has filed a suit for declaration of title and recovery of possession based on Hukumnama and adverse possession for more than 30 years. The trial court decreed the suit on both the grounds, ―title‖ as well as of ―adverse possession‖. The plaintiff's appeal was allowed by this Court. It has been observed by this Court that adverse possession had been established by a consistent course of conduct of the plaintiff in the case, possession was hostile to the full knowledge of the municipality.

18. It is apparent from the aforesaid discussion that title is acquired by adverse possession. ***

21. In S.M. Karim v. Bibi Sakina[8], a question arose under Section 66 of the Code of Civil Procedure, 1908 which provides that no suit shall be maintained against a certified purchaser. The question arose for consideration that in case possession is disturbed whether a plaintiff can take the alternative plea that the title of the person purchasing benami in court auction was extinguished by long and uninterrupted adverse possession of the real owner. If the possession of the real owner ripens into title under the Act and he is dispossessed, he can sue to obtain possession. This Court has held that in such a case it would be open for the plaintiff to take such a plea but with full particulars so that the starting point of limitation can be found. A mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title was not enough to raise such a plea. Long possession was not necessarily an adverse possession and the prayer clause is not a substitute for a plea of adverse possession. The opinion expressed is that the plaintiff can take a plea of adverse possession but with full particulars. The Court has observed: (AIR p. 1256, para 5) ―5. As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him of the plaintiff. The High Court did not accept this case. Such a case is, of course, open to a plaintiff to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession, for he does not then rely on the benami nature of the transaction. But the alternative claim must be clearly made and proved. The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two courts below. The plea of adverse possession is raised here. Reliance is placed before us on Sukan v. Krishnanand12 and Sribhagwan Singh v. Rambasi Kuer13, to submit that such a plea is not necessary and alternatively, that if a plea is required, what can be considered a proper plea. But these two cases can hardly help the appellant. No doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in the name of his son-in-law Hakir Alam, Syed Aulad Ali continued in possession of the property but it does not say that this possession was at any time adverse to that of the certified purchaser. Hakir Alam was the son-in-law of Syed Aulad Ali and was living with him. There is no suggestion that Syed Aulad Ali ever asserted any hostile title against him or that a dispute with regard to ownership and possession had ever arisen. Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for ―several 12 years‖ or that the plaintiff had acquired ―an absolute title‖ was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad14, the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea.‖ 1951 SCC OnLine Pat 165: ILR (1953) 32 Pat 353

22. In Mandal Revenue Officer v. Goundla Venkaiah15, this Court has referred to the decision in State of Rajasthan v. Harphool Singh16 in which the suit was filed by the plaintiff based on acquisition of title by adverse possession. This Court has referred to other decisions also in Annakili v. A. Vedanayagam17 and P.T. Munichikkanna Reddy v. Revamma18. It has been observed that there can be an acquisition of title by adverse possession. It has also been observed that adverse possession effectively shifts the title already distanced from the paper owner to the adverse possessor. Right thereby accrues in favour of the adverse possessor. This Court has considered the matter thus: (SCC pp. 483-85, paras 48 & 50-51) ―48. In State of Rajasthan v. Harphool Singh16, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the respondent-plaintiff could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below: (SCC p. 660, para 12) ‗12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of (2010) 2 SCC 461: (2010) 1 SCC (Civ) 466: (2010) 1 SCC (Cri) 1501 the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy19, adverted to the ordinary classical requirement — that it should be nec vi, nec clam, nec precario — that is the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus.‘ ***

50. Before concluding, we may notice two recent judgments in which law on the question of acquisition of title by adverse possession has been considered and reiterated. In Annakili v. A. Vedanayagam17, the Court observed as under: (SCC p. 316, para 24) ‗24. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.‘

51. In P.T. Munichikkanna Reddy v. Revamma18, the Court considered various facets of the law of adverse AIR 1957 SC 314 possession and laid down various propositions including the following: (SCC pp. 66 & 68, paras 5 & 8) ‗8. … to assess a claim of adverse possession, twopronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially ―wilful neglect‖ element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paperowner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.‘‖

23. In P.T. Munichikkanna Reddy v. Revamma18, this Court has observed as under: (SCC pp. 65-68 & 73, paras 2, 6, 8 & 30) ―2. The respondent-defendants in their written statement denied and disputed the aforementioned assertion of the plaintiffs and pleaded their own right, title and interest as also possession in or over the said 1 acre 21 guntas of land. The learned trial Judge decreed the suit inter alia holding that the appellant-plaintiffs have acquired title by adverse possession as they have been in possession of the lands in question for a period of more than 50 years. On an appeal having been preferred thereagainst by the respondents before the High Court, the said judgment of the trial court was reversed holding: ‗(i) … The important averments of adverse possession are twofold. One is to recognise the title of the person against whom adverse possession is claimed. Another is to enjoy the property adverse to the title-holder's interest after making him known that such enjoyment is against his own interest. These two averments are basically absent in this case both in the pleadings as well as in the evidence….

(ii) The finding of the court below that the possession of the plaintiffs became adverse to the defendants between 1934-1936 is again an error apparent on the face of the record. As it is now clarified before me by the learned counsel for the appellants that the plaintiffs' claim in respect of the other land of the defendants is based on the subsequent sale deed dated 5-7-

1936. It is settled law that mere possession even if it is true for any number of years will not clothe the person in enjoyment with the title by adverse possession. As indicated supra, the important ingredients of adverse possession should have been satisfied.‘ ***

8. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially ―wilful neglect‖ element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paperowner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property. ***

30. In Karnataka Board of Wakf v. Union of India20, the law was stated, thus:

‗11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is „nec vi, nec clam, nec precario‟, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity, and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M.Karim v. Bibi Sakina[8], Parsinni v. Sukhi21 and D.N.Venkatarayappa v. State of Karnataka22 ) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.‘‖

25. In Krishnamurthy S. Setlur v. O.V. Narasimha Setty23, the Court pointed out the duty of the plaintiff while claiming title based on adverse possession. The suit was filed by the plaintiff on 11-12-1981. The trial court held that the plaintiff has perfected the title in the suit lands based on adverse possession, and decreed the suit. This Court has observed that the plaintiff must plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession. The question arose for consideration whether tenant's possession could be treated as possession of the owner for computation of the period of 12 years under the provisions of the Act. What is the nature of pleading required in the plaint to constitute a plea of adverse possession has been emphasised by this Court and another question also arose whether the plaintiff was entitled to get back the possession from the defendants? This Court has observed thus: (SCC pp. 578-79, paras 12-13) ―12. Section 27 of the Limitation Act, 1963 operates to extinguish the right to property of a person who does not sue for its possession within the time allowed by law. The right extinguished is the right which the lawful owner has and against whom a claim for adverse possession is made, therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession. The question whether possession is adverse or not is often one of simple fact but it may also be a conclusion of law or a mixed question of law and fact. The facts found must be accepted, but the conclusion drawn from them, namely, ouster or adverse possession is a question of law and has to be considered by the court.

13. As stated, this civil appeal arises from the judgment of the High Court in O.V. Narasimha Setty v. Krishnamurthy S. Setlur24 filed by the original defendants under Section 96 CPC. The impugned judgment, to say the least, is a bundle of confusion. It quotes depositions of witnesses as findings. It quotes findings of the courts below which have been set aside by the High Court in the earlier round. It criticises the findings given by the coordinate Bench of the High Court in the earlier round of litigation. It does not 1999 SCC OnLine Kar 710 answer the question of law which arises for determination in this case. To quote an example, one of the main questions which arises for determination, in this case, is whether the tenant's possession could be treated as possession of the owner in computation of the period of twelve years under Article 64 of the Limitation Act, 1963. Similarly, as an example, the impugned judgment does not answer the question as to whether the decision of the High Court dated 14-8- 1981 in RSA No. 545 of 1973 was at all binding on the legal representatives of Iyengar/their alienees. Similarly, the impugned judgment does not consider the effect of the judgment dated 10-11-1961 rendered by the trial court in Suit No. 94 of 1956 filed by K.S. Setlur against Iyengar inter alia for reconveyance in which the court below did not accept the contention of K.S. Setlur that the conveyance executed by Kalyana Sundram Iyer in favour of Iyengar was a benami transaction. Similarly, the impugned judgment has failed to consider the effect of the observations made by the civil court in the suit filed by Iyengar for permanent injunction bearing Suit No. 79 of 1949 to the effect that though Shyamala Raju was in possession and cultivation, whether he was a tenant under Iyengar or under K.S. Setlur was not conclusively proved. Similarly, the impugned judgment has not at all considered the effect of Iyengar or his legal representatives not filing a suit on title despite being liberty given to them in the earlier Suit No. 79 of 1949. In the matter of adverse possession, the courts have to find out the plea taken by the plaintiff in the plaint. In the plaint, the plaintiff who claims to be owner by adverse possession has to plead actual possession. He has to plead the period and the date from which he claims to be in possession. The plaintiff has to plead and prove that his possession was continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has to show a hostile title. He has to communicate his hostility to the real owner. None of these aspects have been considered by the High Court in its impugned judgment. As stated above, the impugned judgment is under Section 96 CPC, it is not a judgment under Section 100 CPC. As stated above, adverse possession or ouster is an inference to be drawn from the facts proved (sic) that work is of the first appellate court.‖

26. In P.T. Munichikkanna Reddy v. Revamma18, the plaintiff claimed the title based on adverse possession. The Court observed: (SCC pp. 66-67, paras 5-6) ―5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird25; Arkansas Commemorative Commission v. City of Little Rock26; Monnot v. Murphy27 City of Rock Springs v. Sturm28 )

38. In Radhamoni Debi v. Collector of Khulna29 it was observed that to constitute a possessory title by adverse possession, the possession required to be proved must be adequate in continuity in publicity, and in the extent to show for a period of 12 years.

40. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan30, relying on T. Anjanappa v. Somalingappa31, observed that title can be based on adverse possession. This Court has observed thus: (Hemaji Waghaji Jat30 case, SCC p. 525, para 23) ―23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa31. The Court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his 100 So 2d 57 (Fla 1958) 227 Ark 1085: 303 SW 2d 569 (1957) 207 NY 240: 100 NE 742 (1913)

39 Wyo 494: 273 P 908: 97 ALR 1 (1929) 1900 SCC OnLine PC 4: (1899-1900) 27 IA 136: ILR (1900) 27 Cal 943 title to the property claimed. The Court further observed that: (SCC p. 577, para 20) ‗20. … The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.‘‖ At the same time, this Court has also observed that the law of adverse possession is harsh and the legislature may consider a change in the law as to adverse possession.

43. Again in Dharampal v. Punjab Wakf Board32, the Court found that the averments in counterclaim by the defendant do not constitute plea of adverse possession as the point of start of adverse possession was not pleaded and Wakf Board has filed a suit in the year 1971 as such perfecting title by adverse possession did not arise at the same time without any discussion on the aspect that whether the plaintiff can take plea of adverse possession. The Court held that in the counterclaim the defendant cannot raise this plea of adverse possession. This Court at the same relied upon to observe that it was bound by the decision in Gurdwara Sahib v. Gram Panchayat Village Sirthala33, and logic was applied to the counterclaim also. The Court observed: (SCC pp. 455-56, paras 28 & 34) ***

34. Applying the aforementioned principle of law to the facts of the case on hand, we find absolutely no merit in this plea of Defendant 1 for the following reasons:

34.1. First, Defendant 1 has only averred in his (2018) 11 SCC 449: (2018) 5 SCC (Civ) 148 plaint (counterclaim) that he, through his father, was in possession of the suit land since 1953. Such averments, in our opinion, do not constitute the plea of ―adverse possession‖ in the light of law laid down by this Court quoted supra.

34.2. Second, it was not pleaded as to from which date, Defendant 1's possession became adverse to the plaintiff (the Wakf Board).

34.3. Third, it was also not pleaded that when his adverse possession was completed and ripened into the full ownership in his favour.

34.4. Fourth, it could not be so for the simple reason that the plaintiff (Wakf Board) had filed a suit in the year 1971 against Defendant 1's father in relation to the suit land. Therefore, till the year 1971, the question of Defendant 1 perfecting his title by ―adverse possession‖ qua the plaintiff (Wakf Board) did not arise. The plaintiff then filed present suit in the year 1991 and, therefore, again the question of perfecting the title up to 1991 qua the plaintiff did not arise.‖

51. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation in Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.

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.‖ (Underlining and Bold supplied, Italics in original)

116. Adverse possession, therefore, requires nec vi, nec clam and nec precario. The possession of the adverse possessor must, therefore, be adverse in continuity, in publicity and in extent. Equally, animus possidendi is necessary. The intent to possess the property must be exclusively by the adverse possessor. The adverse possessor must, additionally, intend to take possession of the property to the hostile interest of the actual owner. He is required to establish that, by a consistent course of conduct, he has acquired possession hostile to the actual owner, with the owner‘s knowledge. Uninterrupted possession, of howsoever length, does not ripen into adverse possession or result in creation of title in favour of the possessor.

117. Full particulars of these elements are required to be pleaded by a person asserting perfection of title by adverse possession. The possessor is required to state the date from which he came into possession as well as the date on which the possession became adverse to the interest of the actual owner, if at all it did. Assertion of uninterrupted possession or of acquisition of an absolute title by itself thereof are insufficient to make out a case of perfection of title by adverse possession. The possessor must hold the land adverse to the title of the true owner. Animus possidendi must be shown to exist at the time of commencement of the possession and must continue throughout the period of twelve years.

118. Animus possidendi indicates a specific positive intention, on the part of the adverse possessor, to dispossess the actual owner. It is only where such positive intention to dispossess the actual owner exists that the title shifts from the actual owner to the adverse possessor. Adverse possession must, therefore, start with a wrongful dispossession of the rightful owner and must remain actual, visible, exclusive, hostile and continuous over the statutory period. Physical possession and animus possidendi are its most well-defined indicia.

119. A person claiming adverse possession is required, therefore, to show (i) the date on which he came into possession, (ii) the nature of his possession, (iii) whether the factum of possession was known to the true owner, (iv) the period for which he remained in possession and (v) that his possession was open and undisturbed.

120. As adverse possession is essentially an inequitable plea, seeking to divest a true owner of his right, all these elements have necessarily to be pleaded and proved. Adverse possession, therefore, requires animus possidendi under hostile colour of title.

121. None of the requisite ingredients, on the basis of which a plea of adverse possession could be urged, much less established, has been either pleaded or proved by the appellants. In fact, the plea of adverse possession has been taken, in the written statement of the appellants, almost by a side wind, as one of the contentions on the basis of which the appellants have sought to contend that the suit instituted by the respondent was barred by time. Except for this reference, no substantial right on the basis of adverse possession stands clearly pleaded in the written statement.

122. The plea of adverse possession is inherently inimical and inconsistent with the assertion, by the appellants, of their having been put in possession of the suit property voluntarily by the respondent on 20th June 1990, consequent to the suit property having been sold by the respondent to the appellants. While inconsistent alternate pleas can be taken, mutually destructive pleas cannot. It would not, therefore, be open to the appellants to urge, simultaneously, that they are owners of the suit property, having come into titular possession of the property under documents of title dated 20th June 1990 followed by a sale deed dated 1st August 2001 and that they were in adverse possession of the suit property. Possession into which the respondent had placed the appellants – if the appellants‘ contentions were to be accepted – can never be hostile to the respondent and, therefore, can never be adverse in nature. There is, therefore, no infirmity whatsoever in the finding, of the learned ADJ, that no case of adverse possession had been established by the appellants, qua the suit property, against the respondent.

123. The learned ADJ has also noted that the documents on which the appellants sought to place reliance, to indicate that they were in continuous possession of the suit property since 20th June 1990, also did not indicate such possession. At the highest, the documents indicated possession only since 1993. In this context, the learned ADJ has analysed each of the documents on which the appellants sought to place reliance exhaustively in the impugned judgment and the findings of the learned ADJ have also been captured by me earlier in the course of this decision. Inasmuch as I am completely in agreement with the views expressed by the learned ADJ on the effect of the documents on which the appellants placed reliance, I do not deem it necessary to advert individually to the said documents, so as to avoid prolixity. The respondent, too, contended that the appellants were in possession of the suit property since 1993. The contention of the respondent was that the appellants were licensees of the respondent. Inasmuch as the appellants had failed to prove either ownership or perfection of title by adverse possession, the only capacity in which they could be said to be in possession of the suit property, was in the capacity of licensees. Conclusion

124. In view of the aforesaid discussion, I am of the opinion that the respondent had succeeded in establishing that the respondent was the titular owner of the suit property and that the appellants were merely continuing in the property as licensees. The license of the appellants having been terminated by the respondent, they had no right to continue in the property.

125. Accordingly, I affirm the decision of the learned ADJ to decree the respondent‘s suit, to the extent it directs (i) handing over of possession of the suit property by the appellants to the respondent, (ii) recovery of damages @ ₹ 10,000/- per month from 1st September 2002 to 31st August 2003 and (iii) pendente lite and future damages @ ₹ 10,000/- per month from 1st September 2003.

126. However, I am in agreement with Mr. Alok Kumar that the learned ADJ ought not to have directed increase of 10% in the pendente lite and future damages every three years till the possession of the suit property was handed over by the appellants to the respondent as no such prayer is to be found in the suit filed by the respondent.

127. Subject to the aforesaid modification, to the extent of the direction of 10% increase in the pendente lite and future damages awarded, every three years till handing over of possession of the suit property by the appellants to the respondent, which is set aside, the judgment and decree dated 24th December 2018 of the learned ADJ is upheld in full.

128. The appeal accordingly dismissed, subject to the aforesaid limited caveat, with no orders as to costs. Pending applications, if any, also stand disposed of as such.

C. HARI SHANKAR, J.