LAW FOR ALL : Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action. It is also stated: Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fa

Tuesday, March 6, 2012

Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action. It is also stated: Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fa

IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 1
IN THE HIGH COURT OF DELHI IA No. 4518/2006 & 8011/2006 in CS(OS) No.670/2006 Date of decision: March 05, 2012 INSTITUTE OF HUMAN BEHAVIOUR & ALLIED SCIENCES ... Plaintiff Through: Mr. Sultan Singh and Mr. N.N. Sarvaria, Advs. VERSUS GOVT. OF NCT OF DELHI & ORS. .... Defendants Through: Mr. Sanjay Poddar and Mr. Mohit Auluck, Adv. for defendant nos. 1 and 3 Mr. P.S. Patwalia, Sr. Adv. and Mr. Arvind Nayar, Adv. Mr. Sushant Kumar and Mr. Devendra Nautiyal, Adv. for defendant no. 4. CORAM: HON'BLE MS. JUSTICE GITA MITTAL GITA MITTAL, J “Salus Populi Est Suprema Lex” (Regard for public welfare is the highest law) 1. The present case reinforces the principle that adjudication on a factual situation by strict application of law would maximise public welfare.
2. By this order I propose to dispose of IA No. 4518/2006 under Order XXXIX Rule 1 & 2 and IA No.8011/2006 (under Section 151 of the CPC) filed by the plaintiff. Identical questions of fact would arise for the consideration of both applications. Similar legal
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 2
objections have been urged by the private defendant to these applications. The same are accordingly being taken up together for the purpose of consideration and disposal. 3. The present suit has been filed by IHBAS against the Government of NCT of Delhi (Secretary-Land & Building Deptt.); Delhi Development Authority and Land & Development Department, Office of the Ministry of Works & Housing, Nirman Bhawan, New Delhi as defendant nos. 1, 2 and 3 respectively. The plaintiff has also impleaded Het Ram S/o Late Sh. Hukmi as the defendant no.4 and Kewal Ram @ Kewal (deceased) S/o Late Shri Mohan Singh through his legal heirs Kiran Chand; Sarbati and Jag Roshni as defendant nos. 5(i) to (iii). 4. One written statement dated 21st November, 2006 signed and verified only by Sh. Het Ram-defendant no.4 and Sh. Kiran Chand impleaded as defendant no.5 (i) has been filed on record. Shri Kiran Chand has not filed the affidavit required by law with the written statement. Therefore, strictly speaking, there is no written statement by the heirs of Kewal Ram (@Kewal) on record.
5. A vakalatnama signed by Shri Kiran Chand-defendant no.5 (i) in favour of Shri M.C. Dhingra, Advocate, is on record. This learned counsel has not appeared in the matter. No other
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 3
vakalatnama of defendant no.5(i) is on record. Shri Kiran Chand is therefore not being represented before the court. 6. Shri Kiran Chand is only one of the three children of Late Shri Kewal (also described as Kewal Ram in some litigation). The other children of Kewal Ram namely Smt. Sarbati and Smt. Jag Roshni impleaded as defendant nos. 5(ii) and (iii) and the official defendants have not filed any written statement on record. The other defendants thus do not oppose or contest the plaintiff‟s claim. The plaintiff may therefore be entitled to a decree on admissions against these persons. 7. It is clarified that the reference to „Kewal‟ or Kewal Ram in this judgment refers to the same person, in as much as he has interchangeably used these names in different places. 8. The suit relates to land being Khasra nos. 317/17 and 318/17 min admeasuring 16.98 acres in Village Tahrpur. The same has been the subject matter of litigation and claims by Het Ram (defendant no.4 herein); deceased Kewal Ram @ Kewal (represented by legal heirs defendant nos.5(i) to (iii); Ganga Sahai and Inderraj.
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 4
I. Factual Narration 9. The plaintiff is stated to be a society registered on 30th July, 1991 under the Societies Registration Act, 1860. The Society came into existence by virtue of an order passed by the Supreme Court of India in Writ Petition No. 2848/1983 People’s Union for Civil Liberties vs. UOI and Ors., directing that the erstwhile Hospital for Mental Diseases, Shahdara be converted into a premier institute looking after all aspects of mental health of the citizens. The order dated 12th November, 1991 passed by the Supreme Court of India placed before this court shows that in this writ petition the court was concerned with the issue of the facilities available for the mentally challenged persons. The court has observed that land had been allocated and on principle, shifting of the existing hospital had been found to be indispensable. 10. A gazette notification was further published in the official gazette on 30th December, 1993 issued by the Lieutenant Governor of Delhi transferring the management of the existing Hospital for Mental Diseases, Shahdara, Delhi-95 from the Govt. of NCT of Delhi-defendant no. 1 herein to the plaintiff. As a result, all land, construction, equipment, etc. of the erstwhile hospital stood vested with the plaintiff.
11. The plaintiff has placed before this court copy of a report
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 5
dated 7th May, 1965 bearing no. T-2(66) 601 (ii) recording that physical possession of the Nazul land comprising khasra no. 317/17 min, 317/17 min, 318/17 min measuring 81 bighas 10 biswas (16.98 acres) of Jhilmil Tahirpur Estate, for extension of the said mental hospital had been handed over by the Delhi Development Authority-defendant no. 2 to the L&DO-defendant no.3. This report records that the land was free of cultivation at the site. The report is signed by a senior engineer of the Government as well as by a kanungo of the DDA. 12. The notification under Section 22(4) of the Delhi Development Act bearing no. L-2 (66) 60 PT-2 dated 10th August, 1965 was issued by the Delhi Development Authority formally placing land measuring 16.98 acres (approximately 81 bighas 10 biswas) bearing khasra no. 317/17 min 318/17 min situated in the Jhilmil Tahirpur Estate at the disposal of the Land & Development Office, Ministry of Works and Housing, Government of India, New Delhi for further transfer to the Delhi Administration/CPWD for construction of a hospital for Mental Diseases at Shahdara. So far as the bounding of this land is concerned, to the extent legible, the notification placed on record, describes the same as follows :- “North: Private land Mundali Village under D.C. Delhi South: Kaoha Road Dilshad Colony
East: 318/17min.D.D.A. LAND
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 6
West: Boundary of the Mental Hospital” It is thus evident that this land was in addition to and adjacent to the land over which the said hospital existed. The copy of this notification, as forwarded to various authorities by the DDA also notes that on 7th May, 1965 the possession of the land has already been handed over to the Land & Development Officer, Scindia House, New Delhi. On 17th November, 1965 this land had been formally allotted to the erstwhile Hospital for the Mental Diseases, Shahdara as well. 13. The present suit is one in a chain of litigation in respect of the same immoveable property. It is essential to notice the details of the parties, their claims as well as the outcome of the other legal proceedings and litigation at the instance of one or the other party (ies) with regard to the subject land or portions thereof. II. Judicial History between 1965 and 1982 (i) Civil Suit on 7th August, 1965
14. It appears that Kewal Ram, Ganga Sahai and Het Ram jointly filed a civil suit on 7th August, 1965 along with an application under Order 39 Rule 1 & 2 of the CPC. Initially, an order of restraint was passed against the defendants in that suit on 13th September, 1966. However, the application of these persons under Order 39 of the CPC was dismissed by an order dated 25th November, 1967 of
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 7
the court of the Sub-Judge. The suit was however permitted to be withdrawn on 25th November, 1967 by the court on the plea that the notice under section 80 of CPC was not served on the defendants. It is noteworthy that the defendant nos. 4, Kewal or and 5 (i) to (iii) have not disclosed any detail of this suit. The above few particulars are revealed from the judgment dated 4th April, 2009 passed in PPA No. 4/2008 (earlier RCA 19/1996) Kewal Vs. Estate Officer, IHBAS placed by the plaintiff before this court. The pleadings and claim in the suit, array of parties and the order dated 25th November, 1967 would be material. (ii) CS 693/69 Kewal + CS 703/69 Het Ram 15. In the year 1969, Suit No. 693/1969 was filed by Kewal Ram. Kewal Ram hereby sought a decree for permanent injunction restraining the defendants from interfering with the land bearing khasra no. 317/17 min 16/20, 21, 10, 11 measuring 21 bighas 10 biswas in Village Tahirpur. Kewal Ram claimed that he was the tenant of this land (which is part of the land in the present suit) who was in cultivatory possession of the same for the last 20 years. It was averred that he was paying the necessary lease money or rent against proper receipts and that the defendants had no right to interfere with the lawful possession unless the tenancy was terminated by legal means.
16. It appears that identical suits for injunction being Suit No.
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 8
700/1969 ; 702/1969 were filed by Inder Raj, Ganga Sahai; and Suit No. 703/1969 by Het Ram (defendant no. 4 herein) respectively in respect of Khasra Nos.317/17 min 15/12, 13, 18, 19 22 (measuring 21 bighas 8 biswas). 17. It is important to note that it was the categorical plea of Kewal Ram in Suit No. 693/1969 and Het Ram in Suit No. 703/1969 that they were tenants on the subject lands who were in cultivatory possession against payment of necessary lease money or rent to the real owners. 18. The defendants have not placed before this court the pleadings of these cases, the documents relied upon by Het Ram or Kewal Ram or the „orders‟ therein. The plaintiff, however, has placed a copy of the final judgment passed on 17th December, 1971 in Suit No.693/1969 (illegible at several places) on record. The array of parties in this barely legible photocopy of the judgment dated 17th December, 1971 shows that Union of India was the defendant no. 1 in the suit. Details of the other defendants are not discernible. From the narration in the judgment, it is quite clear that the Hospital for Mental Diseases, Shahdara (predecessor in interest of the plaintiff) was not a party in these suits. It is also evident that the suit related to part of the land which is the subject matter of this case.
19. The judgment dated 17th December, 1971 in the said Suit
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 9
No. 693/1969, notices that, on the pleas of the parties, issues were framed. Issue no. 1 relevant for the present suit, reads as follows:- “1. Whether the plaintiff* is a tenant in respect of the suit land, if so under whom?” (*Kewal Ram) 20. This issue was discussed in and answered by judgment dated 17th December, 1971 (Suit No. 693/1969) in the following terms :- “5. The plaintiff* has deposed that he has been cultivating, the suit land for the last 20 or 25 .... and he has been marking rent.... receipts. He has filed the rent (..) P.1 to P.5.... 6. .....a contract of lease could be effected only by a written instrument under article 299 of the Constitution of India. Prior to the commencement of the constitution a similar provision existed in Section 175 of the Government of India Act, 1935. ……..I am the opinion that the argument of the learned counsel for the contesting defendants is not without substance. It was essential for a valid contract of lease that the document of lease should have been extended in terms of Section 175 of Constitution of India. No such document having been executed, I hold that the plaintiff is not a tenant in respect of the suit land. This issue is decided accordingly.” (*Kewal Ram) (Emphasis supplied) 21. It is noteworthy that in para 13 of the judgment, the court had specifically returned the following finding based whereon the decree was passed:-
“13. ……..Inspite of the fact that the plaintiff had no right to occupy the disputed land and his possession was unauthorised, still under the law of this land, he had the right to the effect that he must not be
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 10
dispossessed except through due process of law.” (Emphasis supplied) The suit was decreed against defendant nos. 1 and 3 by a permanent injunction restraining them from interfering with the possession of the plaintiff over the suit land except by due process of law. 22. Identical pleas are stated to have been taken in Suit No.703/1969 filed by Het Ram (defendant no.4); Suit No.700/1969, 702/1969 and same issues raised therein which were also disposed of by identical judgments. (iii) PP Act proceedings Proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1972 („PP Act‟ for brevity) 23. In view of the observations made by the learned court in the judgment dated 17th December, 1971, a complaint was made by the Medical Superintendent, Hospital for Mental Diseases, Shahdara against Sh. Het Ram (defendant no. 4 herein); Sh. Kewal; Sh. Ganga Ram Sahai and Sh. Inder Raj. Consequently notice dated 16th September, 1972 under section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 („PP Act‟ hereafter) was issued by the Estate Officer to them in respect of the following lands:-
“Khasra no. 317/17 min, 15/7, 8, 9, and 14 measuring 23 bighas 3 biswas, Khasra No. 317/17 Min, 15/6, 14/1 2, 10, 318/17 min, 16/20, 21, 10, 11, measuring 20 bighas 4 biswas and khasra no. 317/17 min, 15/20, 13, 18, 19, 22 measuring 21 bighas 8 biswas respectively
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 11
situated in Village Taharpur, Shahdara, Delhi.” These persons were thereby required to show cause as to why they should not be evicted. 24. It is noteworthy that Kewal Ram (a noticee under section 4 of the PP Act) filed individual objections dated 19th September, 1972 before Sh. S.L. Malhotra, the Estate Officer. In these objections, the following stand was taken:- “2. That the land bearing khasra no.317/17 min, 16/20, 21, 10 and 11 measuring 21 bighas 10 biswas is in possession of the Objector, since last more than 20 years as lessee. The possession of the objector is neither unauthorized nor against any provisions of law. The notice under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are not applicable to the facts and circumstances of the present case. 3. That prior to the objector, his forefathers were in occupation of the said land as Lessee and after them the objector continued in possession of the concerned land as lessee. The amount of lease was duly paid to concerned authority by against issue of valid receipts and there is ample evidence in support of this contention of the objector that he is the authorized possession of the said land since last more than 20 years.” (Emphasis furnished) 25. Het Ram had filed identical objections on same claims in respect of Khasra No. 317/17 min 15/20, 13, 18, 19, 22 measuring 21 bighas 8 biswas before the Estate Officer. The two other noticees also filed the same objections.
26. This identical stand of the four noticees (referred to as
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 12
`respondents‟ in his order) was noticed by Sh. S.L. Malhotra, Estate Officer, Delhi in case no. 15/E/C/72 in the order dated 19th November, 1973 in the following terms :- “the respondents filed the respective objections alleging that they were in continuous possession of the land for about 25 to 30 years as lease and that they had been paying regular rent to the DDA and as such were not in unauthorised occupation of the same. Further they contended that the provisions of P.P. Act were not applicable to those lands under the circumstances explained by their contention and also filed documents. The petitioner has mainly relied on the Civil Court decision in Suit No. 702 of 1969, 693 of 1969 and 703 of 1969 respectively filed by the respondents in the Civil Court against the petitioner for permanent injunction on the basis that they were the leases of the Union of India.” (Underlining by me) 27. On a consideration of the rival contentions, the Estate Officer has passed a detailed order of eviction dated 19th November, 1973 arriving at a conclusion that there was no valid lease in favour of the noticees including Het Ram-the defendant no. 4 as well as Kewal Ram; and that they had no right to occupy the disputed land and their possession was unauthorized. (iv) Joint Appeal being PPA No.88/1973
28. The order of eviction was jointly assailed by the four noticees-Het Ram (defendant no.4); deceased Kewal; Inder Raj and Ganga Sahai by way of an appeal bearing PPA No. 88/1973 before the learned Add. District Judge. This appeal was rejected by a detailed judgment dated 28th March, 1974 passed by Justice
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 13
G.R. Luthra, (then Additional District Judge) granting time up to 30th April, 1974 to the appellants to vacate the land and to deliver possession. 29. The same pleas and claims of these four persons were discussed in detail and the finding that all four appellants (including Het Ram and Kewal Ram) were unauthorized occupants on the land was confirmed. (v) CW No. 550/1972 30. The matter did not stop here. Het Ram, Kewal, Inder Raj and Ganga Sahai carried a joint challenge against the order of the Estate Officer on the plea of tenancy and the judgment of the learned ADJ to this court by way of Civil Writ No. 550/1972. This writ petition was rejected by H.L. Anand, J by a judgment dated 31st March, 1975. The writ petitioners had yet again set up a claim of possession of the land in dispute for over 20 years as tenants under the Delhi Development Authority and its predecessor in office i.e. the Delhi Improvement Trust before this court. (vi) LPA No.113/1975
31. The judgment dated 31st of March, 1975 in the writ petition was further jointly assailed by the four writ petitioners (including Het Ram-defendant nos. 4 and Kewal Ram) by way of LPA No.113/1975 before the Division Bench of this court. In para 4 of the grounds of appeal, drafted on 29th May, 1975 it was again
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 14
asserted that the appellants could prove that “they are in possession of the concerned land as tenants”. This letters patent appeal was dismissed by the Division Bench comprising of Justice V.S. Deshpande and Justice B.N. Kirpal, by a detailed judgment dated 10th April, 1980. The Division Bench rejected the contention of the appellants that the findings on the issue of the tenancy in the decree dated 17th December, 1971 were not res judicata. 32. These judgments were not assailed further and have attained finality. (vii) Execution case of 1982 33. Alongwith IA No. 7562/2007 filed by Het Ram in the present case under section 10 of the CPC. Het Ram has annexed a copy of the Local Commissioner's report dated 10th May, 1991 in an execution case against UOI and he has withheld all details of this case including the petition. My attention has been drawn by Mr. Arvind Nayar, learned counsel for defendant no.4, to this report which appears to have been submitted pursuant to an order dated 6th May, 1991 in the case then pending in the court of Sh. P.D. Gupta, Sub-Judge, Delhi.
34. From this report, it appears that a petition under Order 21 Rule 32(5) of the CPC was filed by Shri Het Ram on 15th September, 1982 seeking execution of the aforesaid judgment dated
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 15
17th December, 1971. The execution case was decided by Sh. Y.S. Jonwal, Sub-Judge, First Class on 5th May, 1989. From the memo with the report, it appears that this execution was filed against the following persons:- “1. Union of India through Secretary, Ministry of Housing Works, New Delhi. 2. Delhi Development Authority, Delhi Through Housing Commissioner, Delhi. 3. C.P.W.D. through Secretary, CPWD Delhi Admn. Division No. III, Delhi. 4. Shri Tarsem Lal, Assistant Engineer-III P.W.D. Division No. 23, Delhi Admn., New Delhi.” Again, the Hospital for Mental Diseases was not a party to these proceedings. 35. The execution petitioner (Het Ram) alleges that on 28th April, 1982, the CPWD, Delhi-respondent no. 3 therein had started interfering with the possession of the 'agricultural land of the petitioner' and that it was continuing work including throwing earth and digging the land at certain places with an intention of placing wire therein, blocking the way of the decree holder to cultivate or to plough the land covered by the said decree. Reference was made to khasra no. 15 in the petition.
36. The respondents in the execution petition appear to have disputed digging the earth claimed by the decree holder or putting of fence on his land and had stated that work was being done on another land not relating to Het Ram.
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 16
III. Correspondence October 1987 to 1991 1987 37. It appears that some efforts to trespass were made thereafter. The plaintiff has placed before this court the communication issued on 27th October, 1987 by the court of Sh. B.L. Anand, the Estate Officer authorising the Medical Superintendent, Hospital of Mental Diseases, GT, Shahdara to take possession of the following land :- “Khasra no. 317/17 min., 15/7min., 8, 9/1, 2, 10, 318/17 min, 15 measuirng 20 bigha 4 biswa, khasra no. 315/17min,16/20, 21, 10, 11 measuring 21 bigha 10 biswa and khasra no. 317/17min, 15/12, 13/18, 19, 22” The SHO of the police station concerned was also directed by the Estate Officer to facilitate handing over possession. The land detailed above includes the land which was claimed by Het Ram and Kewal to be in their possession.
38. A copy of the proceedings recorded on 28th October, 1987 with regard to taking over of possession of the land has been placed on record. These proceedings bear the event recorded by Dr. R.C. Jindal, Medical Superintendent of the hospital who was executing the said order of the Estate Officer and record that the order was read to Sh. Kewal who was present on the site but he refused to sign the document. The proceedings were recorded in the presence of Sh.
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 17
J.P. Mittal, Executive Engineer GTB, PWD and Sh. Ram Chander, a local resident who have appended their signatures thereon as well as in the presence of police officials and two witnesses. A site plan was enclosed. 1991 39. The plaintiff has placed reliance on a communication dated 26th April, 1991 intimating apprehensions of the attempt by some persons to encroach upon the subject land. 1996 40. In the case in hand, IHBAS has contended that Sh. Kewal Ram made an effort in the year 1996 to encroach upon the subject land despite having lost upto the Division Bench of this court and the other proceedings. 41. In this regard, a notice dated 20th December, 1996 was sent by Sh. Narendra Kumar, the Estate Officer informing Kewal Ram that he was illegally occupying the land belonging to the present plaintiff measuring about 21 bighas 10 biswas in khasra no. 317/17, min16/20, 21, 10, 11 at Village Tahirpur, Shahdara and was required to vacate the land with his belongings forthwith failing which the land would be taken over by the Institute on 23rd December, 1996 after removing his belongings.
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 18
IV. Judicial History (from 1996 till date) (viii) RCA No.19/1996 42. It appears that the aforesaid notice dated 20th December, 1996 was challenged by Kewal Ram by way of an appeal being RCA No. 19/96 under section 9 of the PP Act. This appeal appears to have been filed on 23rd December, 1996. The appeal (subsequently registered as PPA No. 4/2008) was titled Kewal Ram vs. Estate Officer, Institute of Human Behaviour and Applied Sciences (plaintiff herein). 43. Sh. Kewal Ram had challenged the authority of the Estate Officer who had issued the communication dated 20th December, 1996 on the ground that the same was in violation of the PP Act as well as for violation of principles of natural justice. 44. Sh. Kewal Ram was therefore aware in 1996 of the fact that the present plaintiff (IHBAS) was asserting right, title and ownership over the land. 45. In this appeal, on 11th February, 2000, the court of the learned ADJ noted that though the respondent was present, the appellant did not appear to be interested in the appeal which was therefore dismissed for default of appearance.
46. The contesting defendants would be possessed of the grounds of appeal; the order impugned in this case and the nature of the dispute. No disclosure of even the filing of this appeal or of
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 19
any of these documents has been made by them. 47. However, Mr. Sultan Singh, learned counsel has placed a certified copy of a judgment dated 4th April, 2009 by Dr. R.K. Yadav, Distt. Judge VII dismissing PPA No.4/2008 on merits. The said judgment has noticed the entire litigation between the parties including the judgment dated 31st March, 1975 of Anand, J and the dismissal of the LPA No. 113/1975 on 10th April, 1980 by the Division Bench. (ix) Suit No.293/1998 48. Despite the above, the efforts by Het Ram and Kewal Ram to somehow or the other perfect a claim over the land continued. Suit No. 293/1998 was jointly filed by Sh. Kewal Ram and Sh. Het Ram against (i) the Union of India, Ministry of Urban Development, Nirman Bhawan, New Delhi and (ii) the Land & Development Officer, Nirman Bhawan, Maulana Azad Road, New Delhi. For the first time, the following claim was made by them in this suit:- “(A) pass a decree of declaration in favour of the plaintiffs and against the defendant and their servants thereby declaring the plaintiffs were owners by way of their adverse possession in respect of the land admeasuring about 39 bighas within khasra no. 317/17/15/12/ 14/22 min and 317/17/21/10/11 situated in Village Jhilmil Taharpur, Shahdara, Delhi.
(B) Direct the defendants and their officials to affect substitution of the names of the plaintiffs in respect of the above lands admeasuring about bighas at this khasra no. 317/17/15/12/13/18/14/22 min
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 20
and 317/17/21/10/11 situated in Village Jhilmil Taharpur, Shahdara, Delhi instead of the names of the defendants on account of acquiring the right to ownership by the plaintiffs.” (Emphasis supplied) 49. So far as the cause of action for filing Suit no. 293/1998 is concerned, Kewal and Het Ram in para 9 of the plaint, state that the same accrued when they had approached the defendant (Union of India and the Land and Development Officer) to declare them as owners of the suit property and when they lastly refused to do so on 26th December, 1998. 50. In para 11 of the plaint, interestingly, very carefully restricting the jurisdiction to less than the pecuniary jurisdiction of this court, it was averred that “for the purposes of jurisdiction, the suit was valued at Rs.19.4 lakhs and for the relief of declaration of the value is Rs.6248/- on which the requisite court fee has been paid. The value of the suit for the purport of mandatory injunction relief, in Rs.130/- on which also the requisite court fee has been paid.” For the purposes of court fee, it was stated by these persons that being agricultural land, the same cannot be more than Rs.400/-.
51. Suit No. 293/1998 was decreed by Sh.B.S. Choudhary, ADJ of Delhi by a judgment dated 8th April, 1999. It was held that the “plaintiffs (Kewal Ram and Het Ram) have become the owners of the suit land by way of adverse possession which has been well established as that of more than 50 years”.
IA Nos.4518 & 8011/2006 in CS(OS) No.670/2006 21
52. The court has given a further direction in the judgment dated 8th of April, 1999 to the effect that ”on the application of the plaintiff, the defendants/their revenue authority will incorporate the name of the plaintiff as in the column of the ownership as per the decree by this court and the incorporation may also be made effect by substituting the name of the plaintiff in their records as per rules”. 53. Het Ram and the legal heirs of Kewal Ram have concealed the pleadings of the parties and documents in this case as well. (x) Applications by IHBAS in decided Suit No. 293/98
54. In the above decided Suit No.293/98 an application dated 8th April, 1999 under Order 1 Rule 10 of the CPC was filed by IHBAS for its impleadment as a party in the disposed of Suit No. 293/98. In this application, IHBAS pointed out that on 26th December, 1996, fencing of the subject land was carried out by its officials; that the appeal under Section 9 of the PP Act being RCA No. 19/1996 was being pursued by Kewal Ram even in 1998 but the proceedings therein were not revealed before the trial court. IHBAS also referred to the disclosure by the present defendant no. 2 in Suit No.293/1998 that possession of the land was with Delhi Admn Div III on behalf of the Superintendent (Medical Services), Delhi Admn., for construction of the Hospital for Mental Diseases which fact was not considered.
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Detailed averments with regard to principles governing the perfection of title by adverse possession were also made; reference was made to the possession proceedings in 1987 and the efforts of Het Ram and Kewal to reoccupy the subject land in 1991. In this background, a prayer was made for impleadment of IHBAS in the said decided suit. 55. It appears that on 7th May, 1999, IHBAS also filed an application under Section 114 of the CPC seeking review of the judgment and decree dated 8th April, 1999 contending that Sh. Het Ram and Kewal had played fraud upon the court and obtained the decree dated 8th April, 1999 by impleading wrong parties in an effort to grab land worth crores of rupees belonging to the government. 56. At the same time, the present plaintiff also filed an application under section 340 of the CrPC stating that Het Ram and Kewal Ram had made false averments and false statements on oath before the court regarding ownership by adverse possession and committed contempt by misusing the process of law and polluting the stream of justice. A prayer was made for making a preliminary inquiry into the several offences committed by them and also a reference to this court for initiating proceedings for criminal contempt of court against the plaintiffs.
57. It is stated before me that the application under Order 1 Rule 10 CPC stands dismissed by the court on the ground that it was
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functus officio. A submission was made by both parties that the matter in the High Court was reserved for orders and consequently the applications be consigned sine die. An order was accordingly recorded on 22nd November, 2002 on the other applications, by the learned ADJ directing that the other applications be consigned sine die with liberty to revive as and when necessary. (xi) Suit No. 47/2000 (renumbered CS No.18/2005) 58. Sh. Het Ram (the present defendant no. 4) filed the Suit No. 47/2000 as the sole plaintiff for the first time arraying IHBAS (the present plaintiff), as a defendant in any case. Het Ram claimed that he had become owner of the suit property by adverse possession. In this case, an interim order of status quo was passed on 8th April, 2000. The present plaintiff (arrayed as the sole defendant) was restrained from interfering in the claimed possession of Het Ram in the suit land and obstructing Het Ram‟s claimed ingress and egress over the land. 59. The present plaintiff has contested the plea set up by Het Ram. Reference was again made to the afore-detailed proceedings under the PP Act and the several judgments in the cases. IHBAS also disputed the possession of and the cultivation claimed by Het Ram on the subject land urging that the same may be wild growth and was not crop cultivated by him.
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60. Sh. Het Ram complained that despite the order dated 8th April, 2000, he was being obstructed and filed an application under section 151 of the CPC wherein a prayer was been made for directions to the local police to give requisite aid to him for ingress and egress to the suit property for the purposes of irrigation of the suit land. The trial court however deferred decision on the plaintiff‟s application under order 39 rule 2(a) of the CPC by its order on 1st May, 2000 and passed the following directions to the local police:- “4. So far as the application u/s 151 CPC is concerned, the prayer of this application from the side of the plaintiff* have been that, the local police be directed to give requisite aid to the plaintiff to have his ingress and egress to the property in the suit, so as to irrigate the crop standing there. During the course of the arguments, I am told that the local police in fact is obstructing the entrance of the plaintiff in the suit land and is not allowed to get his land irrigated even when, there was a restrained order against the defendants from this court. I feel police is not to interfere into the rights of the parties nor it is supposed to help either of the parties to the suit but police is supposed to get the order of the court implemented in its letter and spirit. I hope that local police will not take any initiative to create hindrance in the compliance of the order of this court till it is varied or set aside. I am not inclined to direct the local police to give help to the plaintiff as prayed in the application, but I hope police will obey the order of this court. The application is disposed of accordingly. Let, the matter be put up for arguments on application u/o 39 Rules 1 and 2 CPC on 15.05.2000. Till, then, rule will be otherwise.” (*Het Ram)
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61. It is important to note that even on 1st May, 2000, Het Ram did not claim that there was any construction on the suit property but made reference only to crops, land and irrigation. 62. Thereafter an order dated 12th August, 2000 in the Suit No. 47/2000 (now CS No.18/2005) was passed by Sh. B.S. Chaudhary, ADJ deciding the application under Order 39 rule 1&2 of the CPC making observations (similar to those recorded in the judgment dated 8th April, 1999) to the effect that Het Ram was in possession of the suit property and directing the parties to maintain status quo during the pendency of the suit. It was directed that Het Ram shall be allowed to enter into the suit property in the portion which according to the revenue record was with Het Ram. It was also observed that the „whole land‟ is undivided and the concerned police was directed to ensure that the order was complied with. Het Ram was also prohibited from interfering with the constructed portion with IHBAS. (xii) CR No. 476/2000
63. The above order dated 1st May, 2000 was assailed by IHBAS by way of CR No. 476/2000 before this court. During the pendency of the revision petition, the trial court passed an order dated 12th August, 2000 granting the application under Order 39 Rule 1 & 2 of the CPC of the plaintiff. This fact was noticed by this
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Court in CR No. 476/2000 on 22nd August, 2001 and it was observed that the interim injunction application had been disposed of by an appealable order (dated 12th August, 2000) and as a result, the revision petition was rendered infructuous. The same was disposed of as such. (xiii) FAO No. 391/2000 64. The present plaintiff assailed the order dated 12th of August, 2000 by way of FAO No. 391/2000 before this court which remained pending for a considerable period. Finally, an order dated 16th February, 2004 was passed with the agreement of both parties that the trial court should expedite disposal of the pending suit proceedings within a period of six months. Extension of the period for disposal of the suit has been necessitated and applications to this effect stand granted. It was also agreed on 13th October, 2004 that the interim order of 12th of August, 2000 shall continue till disposal of the suit. (xiv) Cont. Case (C) No. 769/2004 65. Reference has also been made in the arguments to the Cont. Cas.(C) No. 769/2004 filed by IHBAS against Shri Het Ram.
66. In this case, an interim order dated 9th November, 2004 was passed requiring the respondent to remain personally present and restraining him from cultivating the land which was the subject matter of the order dated 12th August, 2000.
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67. On 3rd March, 2005, on the request of the present plaintiff, directions were given to the trial court to consider the request on behalf of IHBAS with regard to demarcation proceedings. The same observations were reiterated on 6th April, 2005 by this court. 68. The defendant has placed reliance on the order dated 11th December, 2006 disposing of CCP No. 769/2004 passed by this court with the following directions :- “8. In view of the above, I am of the opinion that even though a case for contempt is not made out, it would be in the interests of all if the petitioner approaches the revenue authorities for appropriate orders including for demarcation. The said application/request shall be considered in accordance with law and a speaking order issued after granting reasonable opportunity to the respondent/plaintiff in the proceedings. The Local SDM or concerned officer shall ensure that the process shall be completed within eight weeks of the petitioner lodging his request. The parties are bound by terms of the injunction issued on 12th August, 2000 which is subject matter of these proceedings. It is clarified that injunction order issued by this Court on 9th November, 2004 is hereby vacated.” (xv) CS(OS) No.670/2006 (present suit)
69. The present suit has been filed on or about 21st April, 2006 complaining that by the order dated 13th August, 2004, this court directed that parties are directed to respect the order dated 12th August, 2000 inasmuch as “ingress and egress of the appellants (as corrected subsequently to read as „respondent‟–Het Ram) shall not be interfered with”. The plaintiff submits that Het Ram started
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committing contempt of this court on 17th October, 2004 as accompanied by 10/15 persons with tractor and equipment and damaged a portion of the boundary wall and started digging the suit land. 70. Reliance in support of its rights is placed by IHBAS on the above notifications. Referring to action taken by IHBAS, it was urged that Cont. Cas(C) 769/2004 was filed; that on 29th March, 2006; 4th April, 2006 and 13th April, 2006 enquiries were received from unknown sources with regard to the suit property and consequently the plaintiff was apprehending that Het Ram and the legal heirs of Kewal Ram in connivance with each other were attempting to sell the suit property. It was inter alia urged that the claim of ownership based on adverse possession made by these persons in Suit No.293/1998 was contrary to the plea of tenancy set up by them and was legally untenable. In this background, the plaintiff has sought the following prayers:-
“a. Pass a decree of declaration in favor of the plaintiff and against the defendants thereby declaring that the decree passed by Sh. B.S. Chaudhary, Lt. ADJ, Patiala House, Delhi in suit No. 293/1998, titled “ Kewal Ram and Ors versus Union of India & others is a nullity as the plea of ownership on the basis of adverse possession in Suit 293/1998 being directly contrary to the plea of tenancy, could not have been permitted to be raised had the plaintiff revealed the
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factum of the earlier suit and the judgment of Division Bench passed in LPA No. 113/1975. b. Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants or their representatives, agents and attorneys from causing any wrongful interference in the peaceful possession of the suit property. c. Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants or their representatives, agents and attorneys from creating any third party interest by sale, loss or damage, trespassing, demolition, additions, alterations, constructions and erections on the suit property, d. Direct the defendants 1, 2 and 3 to execute necessary documents in the name of the plaintiff Institute, thereby, perfecting the title of the plaintiff with respect to the suit property. e. Pass an ad-interim ex-parte injunction restraining defendant No.1 to defendant No.3 from executing any deed and documents thereby creating any right, title or interests in the suit property in favor of defendant No.4 and legal heirs of defendant No.5 or against any third party.” (Emphasis supplied) Thus apart from the prayer with regard to the challenge to decree dated 8th April, 1999 in question, the plaintiff has made other prayers in the plaint. 71. The plaintiff has disputed that the defendants were in possession of the suit property or could claim a title therein. Alongwith the suit, the plaintiff has filed the IA No.4518/2006 (under consideration) for interim injunction.
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(V). Contentions 72. Appearing for the plaintiff, Mr. Sultan Singh, learned counsel has submitted that Het Ram and Kewal Ram have made desperate attempts to encroach over the land. It is contended that they have indulged in judicial adventurism to fraudulently cause favourable orders to be passed, and, utilising the shield thereof, to occupy public land.
73. Mr. Singh has contended that IHBAS was not a party to CS No.293/1998 or the other litigation initiated by Kewal Ram and/or Het Ram and is not bound by any adjudication therein. Mr. Singh, has vehemently urged that Kewal Ram and Het Ram initially set up a plea of tenancy against payment of rent to the Government and issuance of receipt by it which pleas they have pressed till recently. Concealing this plea, as well as the judgments of the courts on the same upto the Division Bench of this court, a spate of litigation was filed to somehow or the other usurp the land. It is further urged that Het Ram and Kewal Ram despite knowledge of the true owner of the property, deliberately did not impleaded the real owner, the Delhi Government & IHBAS, the necessary parties, in any of the litigation; they have mis-represented details of land and set up a false claim of cultivatory possession. Not only were these persons never in possession of the suit property, but they have no right, title and interest in the property. The plea that Het Ram and Kewal Ram
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have been in adverse possession of the property and acquired title by prescription is factually incorrect and legally untenable. It is urged that the adjudication in favour of Het Ram or Late Shri Kewal Ram was a result of a fraud practised by these persons and the judgment and orders in their favour and are a nullity and non-est in law of no consequence so far as the rights of the plaintiff are concerned. It is urged that IHBAS is entitled to the injunction prayed for. Extensive submissions have been made on the public interest in the hospital expansion which is involved in the matter and is being adversely impacted by the mala fide actions of Het Ram and Kewal. 74. Mr. Patwalia, learned senior counsel appearing for Het Ram has vehemently contended that fore fathers of Het Ram were in possession of the suit property and Het Ram derived possession therefrom. The possession of the Het Ram was adverse to that of the real owner and given the adverse nature of possession of Het Ram, he had acquired title by prescription in the suit land. The contention is that the title of Het Ram and Kewal Ram stands recognized and declared by the judgment and decree dated 8th of April, 1999 in CS No.293/98, which has attained finality. An objection is pressed that the challenge to the decree is barred by limitation.
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It is urged that the suit is not maintainable and no interim injunction can be granted in favour of the plaintiff. 75. Mr. Arvind Nayar, learned counsel also appearing for Het Ram has vehemently contended that IHBAS filed applications in the decided CS No.293/98; challenged orders passed in CS No.47/2000 by way of civil revision and appeals; conceded expeditious disposal of CS No.47/2000 and by application of doctrine of election of remedy, cannot maintain the present suit. It is urged that IHBAS has indulged in forum shopping by virtue of the several remedies invoked by it.
76. IHBAS has vehemently disputed possession over the suit land which is urged to be in the nature of an open plot of land. Mr. Singh has objected that Het Ram and Kewal Ram were never in adverse possession of the suit property and have never asserted title against the real owner. The submission is that consequently, there is no questions of acquisition of title by prescription by Het Ram. IHBAS has also vehemently contested the bar of limitation raised by Het Ram and contended that it gets a fresh cause of action to challenge the judgment and decree dated 8th April, 1999 each time Het Ram or Kewal Ram relied upon the same. So far as challenge to the judgment and decree dated 8th April, 1999 is concerned, IHBAS contends that it is not barred by limitation. It is
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urged that no injunction can be granted against IHBAS which is a true owner of the property and that overriding concerns to public interest militate against grant of any injunction to the plaintiff. Extensive submissions have been made pointing out the court orders and the public interest which is involved in the hospital expansion and which is being adversely impacted because of the mala fide actions of Het Ram and Kewal Ram. 77. Mr. Singh has urged at length that none of the judgment and orders relied upon by Het Ram can be worked inasmuch as Het Ram has given incorrect land details and concealed correct facts while causing the same to be passed. It is urged that a plea that the judgment has been fraudulently obtained and has a nullity and no nest can be raised at any stage even in collateral proceedings. 78. Before this court, Het Ram has set up a defence that he has acquired title by adverse possession of the suit land. This was the claim in Suit No. 293/98 of Het Ram and Kewal Ram, but not against IHBAS. Therefore, before proceeding in the matter, it is necessary to examine the nature of the suit property, requirement of legal possession, essential ingredients of acquisition of title adverse possession and the effect of the judgment dated 8th of April, 1999 as well as other orders relied upon by the parties.
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79. In view of the rival contentions, it is necessary to examine the litigation with regard to the property in dispute. For the purposes of convenience, the consideration by the court in the following manner:- VI. Nature of the suit property VII. Necessary pleadings to support possession VIII. Can mere occupancy of another‟s property be legally protected IX. Possession of a plot of land – whose X. Fraud has to be considers from the following aspects:-
(i) Non-impleadment of necessary party
(ii) Details of Suit Land
(iii) Claim of Cultivation
XI Doctrine of election XII. Claim of Het Ram of acquisition of title for Adverse possession which has to be considered from the following aspects:-
(i) General Principles
(ii) Nature of pleadings to claim acquisition of title by adverse possession, evidence and nature of inquiry by the court (iii) Burden of proof and nature of enquiry (iv) Plea of adverse possession – when taken by Het Ram and Kewal Ram? (v) Nature of Possession to support a claim of acquisition of title by adverse possession
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XIII. Bar of Limitation XIV. Overriding concerns of public interest VI. Nature of the suit property 80. In view of the rival claims, before proceeding, it is necessary to examine the nature of the property. It is an admitted position that the land in question was an open piece of land which is evidenced in the several pleadings wherein Kewal Ram and Het Ram, have claimed to be in cultivatory possession of the land as tenants against payment of rent and receipts which has been staunchly denied by the plaintiff. 81. In the order dated 19th November, 1973, the Estate Officer had specifically observed that the respondents had not been able to file any documents to show that they were lessees or the legality of the land claimed to be under their occupation. The Estate Officer observed that :- “However, the Civil Court held that the respondent had the right not to be evicted without the due process of law. The respondents on the contrary had not been able to file any documents to show that they were the leases and that their occupation originated in legality or otherwise they had any right to remain in possession of the property aforesaid. xxx
2. I have heard both the parties and examined the record as well. The only question for determination before this court is whether the respondents are unauthorised occupation or whether they can be evicted under the P.P. Act. It is clear from the decisions of the Civil Court that the properties belong to the Government which
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were never legally and validly leased out the respondents and that they were the unauthorised occupation of the same. The applicability of the P.P. Act to my mind is to be replied against the respondents because the proceedings under the P.P. Act are the due process of law in respect of government properties which have been unauthorisedly occupied by the respondents. In view of the above, I hold that the respondents are in unauthorised occupation of the properties detailed above and I therefore, hereby make the notice absolute and the respondents are ordered to vacate the lands mentioned against their names within 30 days from the date of publication of this order, failing which the respondents or any other persons found in possession of the aforesaid properties, shall be evicted by the use of force.” (Underlining supplied) 82. So far as the plea of appellants including Het Ram and Kewal in PPA No. 88/1973 is concerned, the judgment dated 28th March, 1974 notes that “it has been contended by everyone of them that he has been a lessee of the land for more than 20 years, then prior to his possession, his ancestors were in possession of the same as lessee, that he is not in unauthorized occupation and therefore, should not be evicted under the provisions of the Act.” 83. The nature of the property being vacant land was also affirmed by Het Ram and Kewal Ram in the grounds of appeal dated 29th May, 1975 in LPA No. 113/1975 when they stated as follows:-
“4 . ………The concerned decree is wholly in favour of the present appellants and if there are any findings against the present appellants in the judgment on any issue those are not resjudicata and the appellants can
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prove in any proceedings that they are in possession of the concerned land as tenants. xxx 6. That the learned Single Judge has failed to consider this aspect of the matter that the appellants are in possession of the concerned land since last more than 20 years as tenants. The receipts to counterfoils concerning the payment of rent to the concerned authority clearly reveals that the appellants are not in unauthorised occupation of the land in dispute.” (Emphasis supplied) 84. Het Ram and Kewal Ram do not state anywhere that they have raised any construction on the suit property. 85. The communications dated 27th October, 1987 from Sh. B.L. Anand, as well as the possession taking report dated 28th October, 1987 and 29th October, 1987 clearly show that reference is made to „land‟ alone. 86. In the decree dated 17th December, 1971, the court disbelieved Het Ram and Kewal Ram‟s pleas of tenancy of the land and it was held that they could be evicted by following due process of law. These findings were sustained by the judgment dated 31st March, 1975 in CW No.550/72 and decree dated 10th April, 1980 in LPA No.113/75.
87. The learned trial court in the judgment dated 17th December, 1971 had held that the subject property was open land. I also find that there is also not even a remotest plea or claim with regard to any construction on the 86 bighas of land which were the
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subject matter of the PP Act proceedings, the writ petition or the Letters Patent Appeal No. 113/1975 or its partition/division between the appellants. 88. The Local Commissioner report dated 10th of May, 1991 relied upon by Het Ram categorically confirms that even on 9th May, 1991, there was no construction of any kind on the land by Het Ram and that Het Ram was asserting a claim of cultivation over tracts of land. 89. On 5th May, 2000 in CR No. 476/2000 Het Ram made a statement that he would not change the nature of the suit land. The property in question is therefore admittedly and unquestionably a plot of land. VII Necessary pleadings to support possession
90. A similar claim of possession over land arose for consideration before this court in the judgment reported at 1994 (30) DRJ 596 : 1994 III AD(Delhi) 1035 Sham Lal vs. Rajinder Kr. & Ors. The plaintiff had filed a suit asserting that he was in open, peaceful and uninterrupted possession of the suit property for over 50 years; had grown vegetables and laid a flower bed on the suit land; had 17 buffaloes with a cattle shed on the land. The suit for permanent preventive injunction was filed in view of the threat of dispossession from the defendant and a prayer was made for protecting the plaintiff‟s possession. The court noticed that the
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plaint had been artistically drafted confining it to averments of only such facts as were convenient and astutely not disclosing relevant facts which did not suit the plaintiff. The material facts on which the plaint was silent included the exact point of time and manner in which the plaintiff entered into the possession of the suit property and the capacity in which he occupied and used the same. The court also noticed that the plaintiff did not say a word about the person in whom the ownership of the property vested or if the plaintiff was paying land revenue and/or taxes payable for the land. Though this case was concerned with occupancy of a person who had shown himself as a caretaker/chowkidar of the property, however, the observations of the court in paras 13 to 15 in the judgment by R.C. Lahoti, J (as his Lordship then was) shed valuable light on the claim made by Het Ram before this court and deserves to be extracted. The same read as follows:-
“(13) Possession is flexible term and is not necessarily restricted to mere actual possession of the property. The legal conception of possession may be in various forms. The two elements of possession are the corpus and the animus. A person though in physical possession may not be in possession in the eye of law, if the animus be lacking. On the contrary, to be in possession, it is not necessary that one must be in actual physical contact. To gain the complete idea of possession, one must consider (i) the person possessing, (ii) the things possessed and, (iii) the persons excluded from possession. A man may hold an object without claiming any interest therein for himself. A servant
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though holding an object, holds it for his master. He has, therefore, merely custody of the thing and not the possession which would always be with the master though the master may not be in actual contact of the thing. It is in this light in which the concept of possession has to be understood in the context of a servant and & master. (14) To have the advantage of law laid down in the rulings relied on by the learned counsel for the plaintiff he shall have to show plaintiff's settled and peaceful possession over the suit property, though he may not show his title. In the case at hand the plaintiff has utterly failed in bringing any material on record enabling a holding in his favor on the point of possession or even right to possess the suit property. Merely because the plaintiff was employed as a servant, or chowkidar to look after the property it cannot be said that he had entered into such possession of the property as would entitle him to exclude even the master from enjoying or claiming possession of the property or as would entitle him to compel the master staying away from his own property. (15) The plaintiff was expected to have made a bold and clean disclosure of the facts in the plaint: Having entered into possession initially as a servant or Chowkidar if he had commenced prescribing hostile title by entering into possession of the suit property, then he should have mentioned the point of time with which that event had occurred. As already stated, the plaint does not go beyond making a bald assertion of the plaintiff being in possession.” (Emphasis supplied)
91. The position is identical in the present case. In the afore-noticed litigation, Het Ram and Kewal Ram set up the bald plea of occupying the land as tenants against payment of rent receipts; do not disclose any date on which they entered into possession; the
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person/authority to whom they paid the rent; the particulars of the real owner, or when, if at all, they asserted title as owners of the land or exclusive possession thereof. VIII. Can mere occupancy of another’s property be legally protected 92. It is trite that every occupancy by itself also does not create either any title or a right to remain in possession. It is only if the entry into possession of the property was lawful and there is a legal right to remain in possession; or, if a person is in settled possession that the court would grant the equitable relief of injunction to against forcible dispossession. A person in settled possession can be dispossessed only after due process of law. It has been held that in certain cases, a person can be evicted by use of reasonable force, in others, by due process of law. In this regard, the following principles were laid down by the Supreme Court in the judgment reported at (2004) 1 SCC 769 Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs and Anr.-
“10. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if be can do so peacefully and without the use of
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unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
11. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration - : 1968CriLJ806 , Puran Singh and Ors. v. The State of Punjab - : AIR1975SC1674 and Ram Rattan and Ors. v. State of Uttar Pradesh - : 1977CriLJ433 . The authorities need not be multiplied. In Munshi Ram &
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Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is, entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase settled possession does not carry any special charm or magic in it nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the
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following tests which may be adopted as a working rule for determining the attributes of 'settled possession': i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
12. In the cases of Munshi Ram and Ors. (supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in IIoram v. Rex - : AIR1949All564 , wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in: while the former can be obstructed and turned out by the true owner even by using reasonable force, the
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later, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property.” (Emphasis supplied) 93. A Full Bench of this court was considering a claim by the petitioner for permanent injunction restraining the municipal corporation from interfering or disturbing him from a kiosk which was allotted to him in an auction on a licence in AIR 1978 Delhi 174 Chandu Lal vs. Municipal Corporation of Delhi. On the issue of the rights of the corporation to take possession of the kiosk after termination of the licence, the Full Bench of court has observed as follows:- “25. …….After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain this right. He is entitled to resist in defense of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser. If, however, the licensor uses excessive force, he may make himself liable to be punished under a prosecution, but he will infringe no right of the licensee. No doubt a person in exclusive possession of the property is prima facie to be considered to be a tenant, nevertheless he would not be held to be so if the circumstances negative any intention to create a tenancy.”
94. Light on this issue is thrown on the above issue also by the observations of the Supreme Court while examining the claim by a person in exercise of right of private defence of property under sections 96, 97, 100 and 101 of the Indian Penal Code, 1860. In this
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regard, the following principles laid down by the Supreme Court in (2005) 12 SCC 657 Bishna alias Bhiswadeb Mahato & Ors. vs. State of West Bengal :- “85. Private defence can be used to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention. So far as defence of land against trespasser is concerned, a person is entitled to use necessary and moderate force both for preventing the trespass or to eject the trespasser. For the said purposes, the use of force must be the minimum necessary or reasonably believed to be necessary. A reasonable defence would mean a proportionate defence. Ordinarily, a trespasser would be first asked to leave and if the trespasser fights back, a reasonable force can be used.” (Emphasis supplied) 95. It is trite, therefore, that mere occupation of another‟s property simplicitor could not entitle a person to an injunction against dispossession. 96. The notice dated 16th September, 1972 under Section 4 of the PP Act was issued by the Estate Officer in respect of land. (IX). Possession of a plot of land - whose
97. It is now necessary to examine the plea of Mr. Sultan Singh, learned counsel for the plaintiff, that in law, possession of vacant land is presumed to be that of the owner. The submission is that the plea of cultivation set up by Het Ram is false and in any case, does not tantamount to legal possession of vacant land. In support of this submission, reliance is placed on the pronouncement of Gujarat High Court reported at AIR 1998 Gujarat 17 Navalram
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Laxmidas Devmurari vs. Vijayaben Jayvantbhai Chavda. 98. The foregoing narration would show that Het Ram-defendant no.4 and Late Kewal Ram set up bald pleas of being in cultivatory possession of the bare land without anything more. The discussion hereafter would show that possession is not something which is to be construed in the lose manner as suggested by this plea.
99. In AIR 1998 Gujarat 17 Navalram Laxmidas Devmurari vs. Vijayaben Jayvantbhai Chavda, the Gujarat High Court was considering a claim by the respondent for declaration of title to the suit property and injunction directing the appellant to remove a water tank, shed etc constructed over the same. The respondent had set up a plea that only one of the shops constructed on plot of land, which belonged to her husband, had been let out to the appellant. The open plot of land was in her possession and the appellant was not entitled to make use of any other part of the plot. The respondent had filed the suit making a grievance that despite this fact, the appellant had constructed a roof in front of the rented shop constructed a water tank and shed for keeping a motor pump to be used for the purpose of drawing water in the suit land and damaged the compound wall, without her knowledge and consent. A prayer was made in the suit seeking declaration and injunction that the appellant had no right to use or enter into the suit land
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except the house and shop let out to him. The respondent had also sought an injunction directing the appellant to remove the illegal constructions made by him over the suit land and claimed a permanent injunction restraining the appellant from disturbing the respondent(plaintiff) from using the suit land. The appellant/defendant had also set up a prohibition under Section 34 of the Specific Relief Act and contended that the suit for declaration simplicitor without seeking the relief of possession was not maintainable. This suit was decreed by the trial court. 100. It is noteworthy that in the case in hand, IHBAS-the plaintiff has sought similar prayers. The contesting defendant before me has raised the same objections as the appellant in AIR 1998 Gujarat 17 Navalram Laxmidas Devmurari vs. Vijayaben Jayvantbhai Chavda (supra). Inasmuch as such pleas are raised very often, the valuable observations and findings of the court deserve to be considered in some detail and are being reproduced in extensor hereafter:-
“11. The concept of possession is an abstract one. The ordinary presumption is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed. As indicated above, an owner of an open land is
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ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession. The presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. The presumption applies to all kinds of lands. Where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.
12. …… As the appellant has miserably failed to establish the ground on which he claims to have come in possession of the disputed land, I am of the view that presumption that possession follows title will come into play. Except construction of water tank and shed over the open land and construction of roof in front of the shop the appellant has not done any substantial acts of possession over the land which may excite the attention of the respondent that she has been dispossessed. It may be mentioned that the construction is over a small piece of land which totally admeasures 995-1 sq. yds. The small piece of land over which the construction was made, was of no present use to the respondent and being convenient in many ways to the appellant, the latter had made use of it in various ways without notice of the respondent. Such user as this, cannot be construed as an act of dispossession of the respondent. User of this sort under similar circumstances is common in this country and excites no particular attention. It is neither intended to denote or understand as denying on one side or the other a claim to dispossession of the land. Whether such user amounts to dispossession or not has been considered by the Court in the case of State of Gujarat v. Patel Chhotabhai Bhaijibhai. In the said case, the land belonged to the Government.
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The respondent had been tethering cattle for more than 60 years. It was pleaded by the respondent that he had become owner of the land by adverse possession, as he was using the same for tethering cattle. After making reference to the case of Framji Cursetji v. Goculdas Madhowji ILR (1992) 16 Bom 338, the Court has held that evidence to show user of the site by tethering cattle for more than 60 years would not constitute possession. Again, in the case of Memon Mohmed Ismail Haji (supra), the plaintiff had filed suit for mandatory injunction for removal of the foundation dug by the plaintiff and for prohibitory injunction restraining the defendant from doing any construction on the suit land. The plaintiff had all along asserted that possession of the open land was with him. The injunction prohibiting defendant from entering into the land was also sought. The suit was dismissed by Trial Court as well as first Appellate Court. It was found that the disputed property therein was an open land where some construction material had been placed and not only foundations were dug, but construction work was also being done. It was noticed that the first Appellate Court had negatived claim of the defendant that they were in legal possession of the land, as they were using part of it for the purpose of drying saries. However, the first Appellate Court had treated act of drying saris as an act of dispossession of the plaintiff. The High Court has held that all along the defendant used open land as any neighbour could use for drying saris and if the plaintiff s suit was on the allegation that neighbours were now committing acts of waste of his property by digging foundation and they be restrained from doing so, the averments in the plaint could never be treated as averments of the plaintiff having been dispossessed. While allowing the Second Appeal the Court has observed as under:---
"The plaintiff all along asserted that possession of the open plot was with him as he was a title holder. He even never sought any declaration of his title and claimed only an injunction because such open plot would always be in his possession as a title holder. The defendant tried to assert adverse title to this open land and he failed. Therefore, the
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defendant had no possession whatever of this open land. Even on his own showing, at the date of the suit he was found only to have started doing waste of the plaintiff's property. The neighbour may not object so long as the user was of drying Saris on this land. A neighbour is surely entitled to object when his land is sought to be wasted and such adverse claim is sought to he asserted on the suit land. Therefore, the relevant injunctions were claimed against these trespassers on the footing that the plaintiff had remained in possession of this open land and the defendant-trespasser who was only trying to commit waste should be prevented from committing such waste, by removing whatever he had done and that he should be restrained from entering in this land. Therefore, the averments were consistent with his being in possession of the land and the defendant-trespasser being completely out of possession. These allegations were completely misread by the Lower Appellate Court and contrary to its own finding that drying of saris would not amount to legal possession, it has recorded a perverse finding that this trespasser was in possession and on that ground, the plaintiff has been non-suited." 13. From the principle laid down in the above-quoted decision, it is evident that mere user of part of the open land would not amount to dispossession of the owner and owner is entitled to object when the property is sought to be wasted and or when adverse claim is sought to be asserted with reference to the open land. In the case of Framji Curseti (supra) in addition to tethering cattle some construction had also been made. But, inspite of that it was held that the user by tethering cattle and the construction of a temporary structure would not amount to possession in case of open land.
14. At this stage it would be advantageous to notice another unreported judgment rendered in Special Civil Application No. 6390/84 by M.B. Shah, J. (as he then was) on 2/5/6-3-85, Therein the petitioner had filed H.R.P. Suit before the Small Causes Court at Ahmedabad for a declaration that he was tenant of the
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suit land. He had also prayed for a permanent injunction. During the pendency of suit, an application Exh. 5 was filed by him claiming temporary injunction. The declaration and permanent injunction were claimed on the ground that he was tenant in possession of land admeasuring 1300 sq. yds. out of final plot No. 1099 at Naranpura and had not only constructed kachcha shed on it, but was also keeping cattle, manure and other articles in the land. The Small Causes Court found that the petitioner did not prove prima facie case and was not tenant of house along with open piece of land admeasuring 1300 sq. yds. In that view of the matter, the Small Causes Court rejected application Exh, 5. Thereupon the petitioner preferred an appeal before the Appellate Bench of the Small Causes Court. After appreciation of evidence, the Appellate Bench dismissed the appeal. The petitioner, therefore, approached High Court by way of filing petition under Article 227 of the Constitution of India. The High Court considered the question whether the petitioner could be said to be in possession of the land in dispute merely because he was tethering cattle, storing cow dung over some part of the land and that some kachcha shed of 9' x 9' was constructed by him over the land. After making reference to the cases of (i) State v. Chhotabhai (supra) and Framji Cursetji (supra), it is held as under :-- "In the present case also, there is no evidence on record to show that the petitioner is in exclusive possession of the land in dispute, this type of" casual unnoticed user of open piece of land cannot be considered as exclusive possession of the land and conferring right over the land in the person using it. It is an admitted fact that the respondent is the owner of land and the doctrine that possession follows title requires to be applied, as it is vacant land. The panchnama clearly shows that on the three sides of the land there is fencing and this also indicates that the respondent is in possession of the land.
So taking into consideration the fact that the petitioner has failed to prove his prima-facie right, title or interest over the land in dispute or even exclusive
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possession of the land, the learned judge has rightly not granted injunction as prayed for by the plaintiff." From the principle of law enunciated in the above quoted case, it is evident that casual unnoticed user of open piece of land cannot be considered as exclusive possession of the land and conferring right over the land in the person using it.” (Emphasis supplied) 101. In the decision of the Division Bench of this court in the judgment dated 8th April, 2005 in Regular First Appeal No.134/1982 Shahabuddin Vs.State of U.P. MANU/DE/0546/2005 to support a claim of acquisition of title by adverse possession on the plea of actual physical possession, reliance was placed by the appellant on revenue record for 37 years. The claim of the appellant rested mainly on the assertion of continuous possession of the suit property from the time of his forefathers (just as Het Ram and Kewal). In this case, the learned trial Judge had returned the finding that possession of vacant land follows title and that the land being in long possession uncultivated/banjar/fallow showed that there was a presumption of possession of the land in favour of the respondent. 102. The appellant had claimed possession resting on a plea of tethering cattle on open land in the judgment reported at Shahabuddin vs. State of UP & Ors. (supra), it was observed as follows :-
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“16. Law draws a distinction between possession and occupation. Mere occupation of another's property is not by itself construed as "possession" in the eyes of law. xxx 46. Tethering of cattle on open land would not amount to absolute or exclusive possession. The cattle must be moved for grazing and put under cover at night. Admittedly the land was banjar land and would not provide for grazing of cattle. Furthermore the tethering of cattle would result in availability of cattle dung which may have been utilised for making the dung cakes. xxx 57. In view of the aforestated position in law, we are of the view that it is a fact that the suit land was vacant land and was lying uncultivated. Even as per the documents produced by the appellant i.e. from the jamabandi of 1935-36, the land was uncultivated till 1971. Even if the defendant had been tethering his cattle on the open land or being preparing dung cakes, the same did not amount to absolute or exclusive possession in law. The learned trial judge has held the nature of such possession to be "furtive" or at the most permissive possession of which nobody took notice". (Underlining supplied)
103. From the above judicial precedents, it is evident that so far as open land is concerned, such open plot would always be in the possession of the owner as a title holder. Mere unnoticed user of such land by a neighbor or a trespasser which is not in the nature of a substantial act of possession and would not tantamount to dispossession of the owner. In Navalram Laxmidas Devmurari
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(supra) the appellant had constructed a water tank and shed over a small piece of land out of the larger plot not being used by the plaintiff and it was held that such user could not be construed as an act of dispossession of the respondent. 104. In Govt. of Gujarat vs. Patel Chhotabhai Bhaijibha (relied upon in AIR 1998 Guj 17), it was held that evidence of 60 years of user of the site tethering of cattle would not constitute legal possession of the land. The judgment of this court in Shahabuddin (supra) was to the same effect. The fact that the land was „banjar‟ was also a consideration. 105. Even possession by itself may not be sufficient to obtain the relief of injunction. In order to become entitled to the relief of possession, in the case of cultivable land, one of the important tests is whether after having taken possession, the trespasser had grown any crop. The claim of the private defendant in the present case has to be examined against these well settled principles. (X) Fraud
106. Mr. Arvind Nayar, learned counsel appearing for the defendant no. 4 has urged at length that the judgment dated 8th of April, 1999 passed in the Suit No. 293/1998 has attained finality; binds the present plaintiff and governs the rights of the parties in
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respect of the suit land. A plea of bar of res judicata against the challenge to the judgment dated 8th April, 1999 is pressed. 107. The plaintiff contests this plea of the private defendant, on a basic submission that it was not a party to CS 293/1998 where the judgment dated 23rd December, 1998 was passed. It is urged that the real owner was not impleaded deliberately in the litigation by the private parties. The suit land was not correctly described. It is further submitted that the judgment dated 23rd December, 1998 was obtained by practicing fraud by Het Ram and Kewal Ram and therefore is a nullity and of no legal consequence and effect. The submission is that the plea of res judicata is not applicable to the instant case. It is contended that for all these reasons, the judgment cannot bind the plaintiff. 108. Given the challenge by the plaintiff, it has to be seen as to what would be the standards on which the pleas have to be tested, and in case it is concluded that the judgment was obtained fraudulently, what would be the effect thereof on the present adjudication. Therefore, before proceeding to examine the facts leading to the filing of the present case, it is necessary to notice certain essential principles laid down by the Supreme Court on the issue of fraud by a party on the court.
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109. In AIR 1956 SC 593 Nagubai Ammal & Ors. vs. B. Shama Rao & Ors., (paras 15 & 16) the Supreme Court had occasion to rule on the difference between collusion and fraud and observed as follows :- “15. Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent."Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose". (Wharton's Law Lexicon, 14th Edition, page 212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest……….” (Emphasis supplied)
110. In para 12 of the judgment reported at (2005) 7 SCC 605 Bhaurao Dagdu Paralkar vs. State of Maharashtra & Ors.(G-V), the court has carefully drawn a distinction between fraud in public law and fraud in private law. A reference has been made to a colourable transaction to avoid
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statutory provision as well as concealment of that which should be disclosed tantamounting to fraud. 111. The Supreme Court has also reiterated the principles laid down in its earlier pronouncements in the judgment reported at (1992) 1 SCC 534 Shrishti Dhawan vs. Shaw Brothers wherein it was held that if the misrepresentation caused the court to assume jurisdiction, it is a public fraud. The court observed as follows:- “xxx 19. …….. What, then, is an error in respect of jurisdictional fact? A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a Court, tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and Wade Administrative Law; bad. ………….Error in assumption of jurisdiction should not be confused with mistake, legal or factual in exercise of jurisdiction. In the former the order is void whereas in the latter it is final unless set aside by higher or competent court or authority. An order which is void can be challenged at any time in any proceeding. xxx” (Underlining by me)
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112. The following observations on “fraud” by the Supreme Court placing reliance on Black‟s legal dictionary; Oxford; and Halsbury‟s Laws of England in Shristi Dhawan (supra) deserve to be considered in extenso and read as follows :-
“20. …………According to Halsbury's Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the represented by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English Derry v. Peek [1889] 14 App. Cas. 337 case what constitutes fraud was described thus, fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false……..” (Emphasis supplied) 113. Mr. Sanjay Poddar, learned senior counsel for the Govt. of NCT of Delhi (Land & Building Deptt.) defendant no. 1 has stated that in the instant case as well, that Het Ram and Kewal have fraudulently caused the court to entertain a case which was not maintainable given the applicability of the Public Premises (Eviction of Unauthorised Occupants) Act.
114. On this issue, my attention has also been drawn to the pronouncement of the Supreme Court reported at (2004) 11 SCC
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364 Commissioner of Customs Kandla vs. Essar Oil Ltd. & Ors. “29. By “fraud” is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such other. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. [See Vimla (Dr) versus Delhi Admn, and Indian Bank versus Satyam Fibres (India) P Ltd.]” 31. “Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representation proceeding may not have been bad. (Underlining by me)
115. Suppression of a material document tantamounts to a fraud on the court. In para 31 of Essar Oil Ltd. (supra), the court has specifically observed that a misrepresentation by itself
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tantamounts to fraud; even an innocent misrepresentation may give reason to give relief against fraud and that fraud is an anathema to all equitable principles. The principle is that any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including that of res judicata. In so observing, the court placed reliance on its prior pronouncement reported at (2003) 8 SCC 319 Ram Chandra Singh vs. Savitri Devi. 116. In AIR 1955 SC 340 Kiran Singh vs. Chaman Paswan the court observed that fraud would relate to assumption of a fact which goes to the roots of jurisdiction of the court which would vitiate the complete proceedings and that such a plea could be set up even in collateral proceedings. 117. In the light of the submissions made before this court and the above legal principles, the plea of the fraud on the part of Het Ram and Kewal Ram has to be considered from four aspects, being, firstly non-impleadment of necessary party; secondly, non-disclosure of complete details of land; thirdly, claim of cultivation; and fourthly, concealment of material fact. (i) Non-impleadment of necessary party
118. It is urged by Mr. Sanjay Poddar, learned counsel and Mr. Sultan Singh, learned counsel that IHBAS and the Delhi Govt. were necessary and proper parties to the litigation in all proceedings
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initiated by Het Ram and/or Kewal Ram with regard to the subject land. Their non-impleadment in the cases was deliberate, is fraudulent and fatal to the outcome and the orders and judgments so caused to be passed are a nullity and non-est in law. 119. Let us examine the objection with regard to non-impleadment of necessary party before the other issues raised. In 1969, when the first Suit No. 693/1969 and other suits were filed, Het Ram and Kewal Ram had impleaded Union of India as defendant no.1. The memo of parties or the pleading in the suits have not been filed by the private defendants who would possess the same but the copy of the court orders placed by the plaintiff would show that the Delhi Government or the hospital were not parties. 120. While dismissing PPA No.88/1973, in the judgment dated 28th of March, 1974, Justice G.R. Luthra, the then learned Addl. District Judge has extensively discussed the reliance by the appellants including Het Ram-defendant no. 4 and Kewal-defendant no. 5 on the judgment dated 18th December, 1971 of the civil court and concluded as follows:-
“7. The appellants brought suits for issue of a perpetual injunction restraining the Union of India and others from interferring with his possession with respect to the land which was subject matter of the proceedings before the Estate Officer. One of the issues framed in that case was to the effect, “If the appellant was a tenant in respect of the land”. It was held by the Civil Court vide Judgment dated
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17.12.1971 that the appellant was not a tenant but was unauthorised occupant. It was, however, held that inspite of the fact that the appellants were tresspassers they were not liable to be dispossessed except with due process of law. Accordingly, injunction that was granted was that the Union of India and others were restrained from interferring with possession of the appellants except by due process of law. The Estate Officer had held that the appellants were bound by the said judgment…………. “8. I, however, do not agree with the learned counsel. The appellant had prayed for an unqualified perpetual injunction restraining the Union of India and others from interfering with their possession which implied a declaration that they were tenants and not tresspassers. That also implied that they wanted the injunction restraining the UOI and others from interfering with their possession unless their tenancy rights were and could be terminated. Injunction that was granted was in respect of their position as tresspassers and to the effect that they could not be evicted except in due process of law. Therefore, the appellants could go in appeal against the finding that they are not tenants but are unauthorised occupants which they did not do on account of which principles of resjudicata debarred them from now urging that they are tenants.” (Emphasis supplied) 121. On the plea of the tenancy even in CW No. 550/1972, it was held by H.L. Anand, J in the decision dated 31st March, 1975 as follows :-
“What is more, the petitioners really had no possible cause to show and could not have even set up the plea that they had been in authorized occupation of the land in dispute. This is so because it was admitted that prior to the initiation of the proceedings, the petitioners had filed a civil action against the authorities seeking a perpetual injunction restraining the authorities from dispossessing the petitioners otherwise than in accordance with law on the plea that
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the petitioners have been in occupation of the land in dispute since over 20 years as tenants. The trial court dispelled the plea of the petitioners that they were tenants and held that they were unauthorized occupant had it however held, that even an-unauthorised occupant, had a limited right not to be disturbed except in accordance with law and, therefore, on that plea granted the relief sought by the petitioners and decreed the suit of the petitioners restraining the authorities from interfering with the petitioners possession except in accordance with law. The petitioners being party to the aforesaid suit the finding of the trial court that the petitioners had been in unauthorized occupation of the land was binding on the petitioners and would operate as resjudicata in the proceedings under the Act an as to……….. the petitioners to set up such a plea. The contention…. District Judge, as indeed before this court, that such a decree would not operate as resjudicata because by the decree the petitioner‟s suit had succeeded and the petitioners, therefore, could not have filed an appeal against it is, however, unsustainable and was rightly dispelled by the learned Addl. District Judge. The petitioners had sought relief from the civil court on the basis that the petitioners were tenants in respect of the land in dispute. The decision of the question whether the petitioners were tenants or were in unauthorized occupation was, therefore, necessary for the relief which the petitioners sought. That being so, it could not be said that the refusal by the civil court to grant them the relief on the basis that they were authorized occupants either as tenants or otherwise would not disentitle the petitioners to assail the decree to that extent and that being so, the decree would certainly operate as resjudicata. The principle of the decision in the case of Mohamad Mir vs. Ghulam Mohmudin and others AIR 1954 Jammu & Kashmir 32 which was invoked by the petitioners before this court, as indeed before the learned Addl. District Judge, was, therefore, of no avail to the petitioners. In the face of the aforesaid decree the petitioners were, therefore, not entitled to set up a plea that they were in
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authorized occupation of the land and that being so, any relief to the petitioners in the present case on the basis of the two grounds urged above would amount to granting a futile writ because if the proceedings are quashed, the fresh proceedings would only be an exercise in futility so far as the petitioners are concerned because, being bound by the aforesaid decree, they cannot be heard to say that they were not unauthroised occupants and if they are unauthorized occupants, they are liable to be evicted.” (Emphasis supplied) 122. On this issue, in the judgment dated 10th April, 1980 in LPA No.113/1975, the Division Bench of this court had observed as follows:- “The material finding in the suits was that the appellants were not tenants of the lands in their possession, but they could be dispossessed not by force or executive action, but only in due course of law.” xxxx
“ On these considerations it is quite clear to us that the relief of injunction based on title was refused to the plaintiffs who are appellants before us. After having alleged that they were tenants it was that kind of injunction which was asked for by the appellants who were the plaintiffs in the civil suits. Explanation V to section, therefore, applies and it must be held that the relief claimed in the plaint was that of an injunction based on title without the qualifying words showing that the plaintiffs could be evicted in due course of law. Since the relief has not been granted expressly by the decree, it must be deemed to have been refused. In that sense, the decree is in harmony with the judgment and the pleadings. It reflects the finding that the plaintiffs were not tenants. This is why the injunction is toned down and merely protected the possession only till the authorites evict
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the appellant in due course of law. We are unable to accept the contention of the appellants that they could not have filed an appeal agaisnt the adverse finding regarding tenancy and hence the judgment in the civil court was not res judicata against them. In our view, they could have filed an appeal on the ground that an absolute injunction on the ground of title had been refused to them. They could have got the decree modified to make it absolute by omitting the words ”except in due course of law”. The decree as construed by us was thus res judicata on the point of tenancy also.” (Emphasis furnished) 123. My attention is drawn to the pronouncements in (2004) 1 SCC 317 Khetrabasi Biswal vs. Ajay Kumar Baral & Ors. In para 6, the Supreme Court has observed that:- “6. The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect.” 124. This very issue of non-impleadment of a necessary and proper party despite knowledge came up for consideration before the Supreme Court in the judgment reported at (2004) 10 SCC 665 Dattatreya & Ors. vs. Mahaveer & Ors. (G-X). The relevant observations of the Supreme Court on this aspect in para 10 may be usefully extracted and read as follows:-
“10. …..By not impleading the present respondents as parties in writ petition No. 5495 of 1992 the appellants deprived the respondents of an opportunity to challenge that order; rather they were kept in dark about the whole proceeding. Any order to consider the application of the appellants moved in 1985 was likely to affect the order dated 3.7.1979 passed in favour of respondents. The
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appellants knew it, being parties in the earlier proceedings of 1974. The fact thus remains that the material facts were not brought to the notice of the court and the persons who were ultimately to be effected were avoided to be impleaded as parties. It was merely not a question of non-impleadment of necessary parties technically and strictly in accordance with the provisions of the Code of Civil Procedure rather was very much a question of proper parties being there before the court particularly in proceedings under Article 226 of the Constitution. ………. The appellants cannot be allowed to claim any bonafides in not impleading the respondents as parties in that writ petition or about non-disclosure of the earlier order dated 3.7.1979 in respect of the same land and within their knowledge on the ground that it was not necessary to disclose it. As observed earlier, they knew well that if any order is passed in their favour the respondents would be the effected persons. The respondents were deprived from raising this point before the learned single Judge regarding a pre-existing order relating to the same land and non-disclosure of the same. The conduct of the appellants had been far from being fair if not fraudulent. It was a deliberate suppression of material fact which caused prejudice to the respondents. Fair play is the basic rule to seek relief under Article 226 of the Constitution.” (Underlining supplied)
125. It has been held that non-joinder of a necessary party goes to the root of the matter and violates the principle of audi alteram partum. It has been held that an order issued against a person without impleading him as a party, and thus, without giving him an opportunity of hearing must be held to be bad in law. (Ref : (1984) 4 SCC 251 Prabodh Verma vs. State of U.P.; (2004) 2 SCC 76 at para 27 Ramrao vs. All India Backward Class Bank
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Employees Welfare Assn.; (2010) 10 SCC 707 Girjesh Shrivastava & Ors. vs. State of Madhya Pradesh & Ors.). 126. In AIR 1963 SC 786 Udit Narain Singh Malpaharia vs. Additional Member, Board of Revenue, Bihar, this well settled principles of law was reiterated. It was stated that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. In (2010) 10 SCC 744 Competition Commission Of India vs. Steel Authority of India Ltd., the court ruled that though non-joinder of proper parties may not be fatal to the proceedings, non-joinder of necessary parties may prove fatal. 127. Suit No. 293/1998 was filed jointly by Het Ram and Kewal on 23rd December, 1998 against Union of India and the L&DO for the first time ever laying a claim of acquisition of title by prescription. This by itself clearly shows that the plaintiff had knowledge of the 1965 notification under Section 22 of the DDA Act whereby land was placed at the disposal of the Land & Development Office, Govt. of India for further transfer to the Delhi Administration. Yet Delhi Government does not appear to have been impleaded.
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128. The transfer of management and control of the Hospital for Mental Diseases by the Government of NCT of Delhi to IHBAS was by way of the public notification dated 22nd December, 1993. Het Ram and Kewal Ram would thus have had full knowledge of the rights of IHBAS. Yet in the suit filed in 1998, did not implead the true owner IHBAS as a party. Most importantly, they do not even remotely disclose the public notifications. 129. The suit was filed on the ground that the “defendants” therein had refused to substitute the names of the plaintiffs in their records. This plea was reiterated in para 9 setting out the cause of action. 130. The plaint in Suit No. 293/1998 read in its entirety, discloses that Het Ram and Kewal Ram sought enforcement of a “right of adverse possession” against “these authorities”. 131. More importantly, the 20th December, 1996 notice issued by Shri Narendra Kumar, Estate Officer, was challenged by way of RCA No.19/1996 (PPA No.4/2008) titled Kewal Vs. Estate Officer, IHBAS.
This appeal PPA No. 4/2008 (earlier RCA No. 19/1996), filed by Kewal Ram against IHBAS and PPA No.21/1999 Kewal vs. Estate Officer, IHBAS (dismissed only on 11th February, 2002) were
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pending. Kewal Ram was therefore well aware in 1998 when S. No.293/1998 was filed of the rights, claims and objection of IHBAS. Yet no disclosure thereof is made in the plaint. IHBAS is also not impleaded as a party. 132. It is clearly evident that Het Ram and Kewal Ram had full knowledge of the rights and claim of title, ownership and possession by IHBAS and the Delhi Government which were clearly necessary and proper parties in a suit concerning title and rights in the suit property. Yet neither the present plaintiff nor even Government of NCT of Delhi were impleaded as defendants in this case. Thus the true owner was deliberately not impleaded as a party in the suit filed in 1998. 133. The few available details of the Suit No.293/1998 set out at the beginning of this judgment (in the chronological judicial history) show that the persons who stood impleaded as defendants in Suit No. 693/1969 or in the execution proceedings in 1982 were not made parties in the 1998 suit.
134. In the plaint (in Suit No. 293/1998), it was contended that the government authorities were interfering with the possession of the plaintiff in respect of the land. In para 4 of the plaint, Het Ram and Kewal Ram placed reliance on the judgment dated 17th December, 1971; and the said local commissioner‟s report dated 9th May, 1991 in support of their contention that they were in
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cultivatory possession of the suit land. 135. The L&DO - defendant no. 3 before this court has placed a statement filed by it in the Suit No. 293/98 that the land was resumed from DDA on 7th May, 1965 and handed over to the Delhi Administration Division III (on behalf of Superintendent (Medical Services). The remaining land was perhaps in the ownership of DDA, and that DDA and PWD appropriately be impleaded in the case. 136. In para 2 of the judgment dated 8th April, 1999 in the suit of 1998, it is noticed by the learned Judge that the UOI had unequivocally stated in a reply that the land in the suit stood handed over to Delhi Admn. Division III and that the defendant no. 2 had no concern whatsoever with the suit land. Yet, no order for its impleadment was made. 137. In the instant case, Het Ram and Kewal Ram have not litigated against the real owner at any point of time. Despite full knowledge, they have deliberately not impleaded the necessary parties in the suits in 1998 and the decree, dated 8th of April, 1999 has not been passed against the correct and necessary party. In view of the principles laid down in the binding judicial precedents noted heretofore, decree obtained by practice of such fraud cannot bind IHBAS the necessary party.
138. The judgment rests on the observation that “there was no objection by the real owner”, without returning a finding as to
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who was the real owner. (ii) Details of Suit Land 139. Learned counsel for the plaintiff and Govt. of NCT of Delhi have pointed out the contradictory land claims laid by Het Ram & Kewal Ram at various places with respect to the land. For purposes of convenience and clarity, even at the cost of some repetition the same are set down hereafter:- (i) Suit No.693/1969 & 703/1969 (i) Two separate suits being Suit No.693/1969 & 703/1969 were filed in 1969 by Kewal Ram and Het Ram seeking permanent injunction restraining the defendants from their claimed possession of the separate plots of land. The plaints in these cases have not been placed before this court. However, the order dated 17th December, 1971 in Suit No.693/1969 Kewal Ram Vs. UOI shows that Kewal Ram had laid a claim over land in Khasra Nos.317/17 min 16/20, 21, 10, 11 (measuring 21 bighas 10 biswas) in Village Tahirpur. Similarly, the copy of order dated 17th December, 1971 in Suit No.703/1969 Het Ram Vs. UOI shows that the case related to land in Khasra No.317/17 min 15/12, 13, 18, 19, 22 (measuring 21 bighas 8 biswas) Village Tahirpur. (ii) Suit No. 293/98
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The plaintiff has placed an illegible photocopy of the plaint signed in November, 1998 in Suit No.293/98 jointly filed by Kewal Ram and Het Ram with regard to 39 bighas of land within khasra no.317/17/15/12/13/18/14/22 min and 317/17/21/10/11 situated in Village Jhilmil Tahirpur, Shahdara, Delhi seeking a decree of declaration that they were owners by way of their adverse possession in respect of the “said land” and a further direction to the defendants and their officials to effect substitution of the names of the plaintiffs in respect of the “said” land. The judgment dated 8th April, 1999 was thus passed against the Union of India, Ministry of Urban Development and its Land & Development Officer. (iii) Suit No.47/2000 (a) Kewal Ram is not a party to the Suit No.47/2000 (now CS No.18/2005) which has been filed by Het Ram alone. The dishonesty in the pleadings is writ large from the following assertions in the plaint which deserve to be extracted:-
“1. That the plaintiff filed Suit No.703/1969 for permanent injunction against DDA, Union of India, Land & Development Office and CPWD with respect to the land comprised in Khasra Nos.317/17 min 15/12, 13, 18, 14, 22 measuring 21 bighas 8 biswas which is un-demarcated and undivided alongwith land in Khasra Nos.317/17,21,10,11 measuring 21 bighas and 10 biswas situated in village Tahirpur, Shahdara, Delhi. For the undivided and undemarcated land in Khasra Nos.317/17,21,10,11, one Kewal Ram filed a similar suit,
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like the plaintiff, for permanent injunction against the aforesaid defendants.” (b) Even though Kewal Ram is not co-plaintiff in Suit No.47/2000, Het Ram deviously makes a reference to the land over which Kewal Ram had made a claim. The rest of the plaint is carefully silent with regard to the separate claims laid by these two persons in the 1969 suits. The prayer clause is dishonestly and cleverly couched as follows:- “(1) decree the suit for permanent injunction and thereby permanently restrain the defendants, their officers, employees, servants, agents etc etc from interfering in the peaceful cultivatory possession of the plaintiff over the suit land comprised in Khasra Nos.317/17/15/12/13/18/14/22 min and 317/17/21/10/11 situated in village Jhilmil Tahirpur, Shahdara, Delhi as shown in the site plan; 140. To say the least, this prayer which includes land in respect of which Kewal Ram had laid a claim, is not only brazen but completely dishonest. In the above pleadings and prayer made by Het Ram by way of CS 47/2000, the intention to mislead, confuse and take undue advantage of any orders passed in this suit, to usurp land including such land over which Kewal Ram had at one point laid a claim is writ large. The reference to multiple plaintiffs when Het Ram is the sole plaintiff smacks of the malafide intention.
141. Neither Het Ram nor Kewal Ram have ever set out the location of the suit land by any boundaries. The notifications
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mentioned in the previous part of this order clearly delineate the boundaries which are relied upon. In CS 47/2000, Het Ram merely refers to “suit land” deliberately which description is hopelessly incomplete and unsupported by any site plan or map which would show the reference to which land or the boundaries thereof. 142. Before this court, a certified copy showing a plot of land has been filed by Het Ram which does not reflect what is the demarcation of the land. It does not even show as to which are the proceedings in which this plan was filed.
143. Het Ram has filed IA No.15078/2011 under Section 151 of the CPC on 11th November, 2010 in these proceedings. In para 31 of this application, Het Ram claims to have sent a precautionary notice to the plaintiff, the SHO, Dilshad Garden, Delhi and the SDM, Seemapuri dated 28th September, 2010. The copy of the notice has been enclosed which shows that it refers to “land of the undersigned comprised in khasra no. 317/17 min, 16/20, 21, 11 measuring 21 bighas 10 biswas in Jhilmil, Village Tahirpur”. No other land is referred to by Het Ram. He states in this letter that “said land is in possession of the undersigned and has not been cultivated since order of stay was passed by Hon’ble High Court on 9th November, 2004 in Cont.Cas(C) No.769/2004”. In the second sub-para of this letter, Het Ram claims that he has the right to cultivate the “said property”
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under the orders dated 8th April, 2000 and confirmed vide order dated 12th August, 2000. Het Ram writes that he was informing the notices that he “shall proceed to cultivate the abovesaid land with effect from 5th October, 2010”. 144. From the above narration, it is also apparent that no claim at all had been laid by Het Ram to occupancy or possession of khasra no.317/17 min 16/20, 21, 10, 11 measuring 21 bighas 10 biswas. On the contrary, Het Ram had admitted that Kewal Ram had laid a claim over land in khasra no.317/17, 21, 10, 11. So far as khasra no.317/17 min, 16/20 is concerned, neither Het Ram nor Kewal Ram had asserted any title, possession or cultivation. It is not mentioned in the plaint in CS No.47/2000 anywhere. 145. It is also important to note that in the plaint in Suit No.47/2000, Het Ram has mentioned the khasra no.317/17, 10 in the context of Kewal Ram whereas khasra no.317/17 min 10 is not mentioned at all in the letter dated 28th September, 2010 by Het Ram. 146. In view of the plea now propounded and the above discussion, the land is “un-demarcated” and “undivided”. Therefore, it certainly cannot be contended or held that Het Ram or Kewal Ram were in possession of or cultivating any specific piece of land.
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147. It may be noted that a report dated 29th March, 2007 of the SDM, Seemapuri purporting to be upon a demarcation conducted pursuant to orders dated 5th March, 2007 of this court, states that it was conducted in the presence of Het Ram and Sh. Kiran Chand who refused to sign the report when their counsels were present. It records that khasra no. 318/17 min is wholly built up in the form of police station Dilshad Garden, DDA Flats and the rest of the raqba is inside the GTB Hospital boundary. So far as the land of khasra no.317/17 min was concerned, the same was lying within the boundary of the GTB Hospital. On the spot the land was lying vacant in the form of banjar and that there was no sign of cultivation of crops. Only a bench claimed by IHBAS was lying on the vacant piece of land which was fenced by boundary walls of IHBAS. The SDM had reported that there was no possession of any private persons/party on the land. 148. Het Ram has filed objections to this report which are pending, to the said report contending that the same was collusive and detailed reference to court proceedings has been made. Even in these objections, there is not even a whisper of a suggestion with regard to the nature of the claimed occupancy or cultivation on the subject land.
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149. On merits, Het Ram has emphatically relied only on the judgment dated 8th April, 1999 passed by Shri B.S. Choudhary, ADJ in Suit No.293/1998. 150. The judgment dated 8th April, 1999 is premised on the sole claim of the plaintiffs herein that they have been in continuous use and occupation of the land for the last more than 50 years. In support of this claim, reference is made to revenue records in the nature of jamabandies for the years 1959-60; 1963-64; 1967-68. The judgment of the learned ADJ notes that the jamabandies recorded that the possession of the plaintiffs was entered as “najayaj kabiz”. The same has been translated by the trial court to read as “continuous possession since long” whereas literally translated, the expression „najayaj kabiz‟ refers merely to an unauthorized occupant. This expression nowhere refers to continuity of the occupation. 151. Before this court also Het Ram and legal heirs of Kewal Ram have not placed any rent receipts or revenue records claimed to be in their possession to support their plea of tenancy; possession or claim of cultivation. There is not a single document placed by them to support the plea of either title or possession.
152. On the contrary, IHBAS has placed the jamabandi of the year 1967. This record reflects the owner as the Government
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(“sarkar daulat madar ”) and the alleged occupant as „najayaz kabiz‟. 153. In this regard, an odd entry in isolated record of unauthorized occupation for a certain period would not support a case of uninterrupted possession. There is not a single document, even of any revenue record of any date prior or subsequent to 1967-68 suggesting even unauthorised occupancy of Het Ram or his predecessors. 154. The legal position on reliance on revenue records, an electricity bill etc to support such claim has been considered by the courts. In para 33 of Shahabuddin vs. State of U.P. & Ors. (supra) it was held as follows :- “33. It is seen that persons claiming title by virtue of adverse possession have placed reliance on evidence in the nature of mutation in revenue records, electricity bills etc. Such documents, by themselves, do not establish the nature of possession as adverse possession. It has been held that the documentary evidence has to be co-related to the animus possidendi. Thus, mutation in revenue record of the property in the name of one of the co-sharers would not amount to ouster of others unless there in a clear declaration that title of other co-sharers was denied and disputed. In this behalf, reference may be made to dicta of the Apex Court laid down in [2002]1SCR91 entitled Darshan Singh and Ors. v. Gujjar Singh (dead) by LRs and Anr. and (2004)1SCC271 entitled Md. Mohammed Ali (dead) by LRs v. Sri Jagdish Kalita and Ors. It has also been held that mere non-payment of rent and taxes may be one of the factors for proving adverse possession but it cannot be the sole factor in [1981]1SCR863 Karbalai Begum v. Mohd. Sayeed and Anr.; MANU/PR/0014/1934 Ejas Ali Qidwai and Ors. v. Special Manager, Court of Wards, Balram Pur Estate and Ors.; 57(1995)DLT101 entitled Harbans Kaur and Ors. v.
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Bhola Nath and Anr. AIR 1932 Oudh 46 entitled Suraj Bali v. Lala Mahadev Parsad.” The judgment dated 8th of April, 1999 premised on jamabandies is contrary to this settled legal position as well. 155. After hearing arguments, judgment in the present applications had been reserved. While dictating the order, the contradictions and the concealment with regard to the actual land which was the subject matter of the various litigation was noticed. Consequently, the matter was placed for clarifications. The parties were directed to file written submissions with regard to the land which was the subject matter of the litigation. While the plaintiff and Government of NCT of Delhi-defendant no.1 filed the written submissions pointing out the above-noted contradictions in the claim made by Het Ram and Kewal Ram, the private defendant no.4 for the first time filed written submissions dated 21st October, 2011 taking the following vague plea :- “Khasra No.317/17/15/12/13/18/14/22 min & 317/17/21/10/11 min as claimed by the defendant nos. 4 & 5 jointly undivided un-demarcated and contiguous (total area being 21 bighas 10 biswas of Kewal Ram and 21 bighas 8 biswas of Het Ram as per the revenue record).”
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(iii) Claim of Cultivation 156. It is now necessary to consider Het Ram‟s claim of cultivation on land. It is noteworthy that in Cont.Cas.No.769/2004, an order dated 9th November, 2004 was passed restraining the respondents from cultivating the land which was the subject matter of the order dated 12th August, 2000. This order was also vacated by the order dated 11th December, 2008. 157. Het Ram places heavy reliance on the judgment dated 17th December, 1971; an order dated 5th May, 1989 in some execution proceedings; the local commissioner‟s report dated 5th May, 1991 and the judgment dated 8th April, 1999 before this court. A local commissioner‟s report dated 10th of May, 1991 has been placed on record without disclosing any details of the proceedings or even the order under execution.
158. This local commissioner‟s report (dated 10th of May, 1991) reflects that it was recorded in execution proceedings (details not disclosed) aforenoticed in the presence of Sh. Kewal and Sh. Inder Raj, without notice to the opposite party. This report records a claim made by Het Ram – the decree holder that “he sowed jowar crop but the crop is visible towards field of the road side only and in the rear part there was water logging and the crop was not visible. There was a pumping station situated in the north side with two big
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tanks/ water storage”. According to Shri Het Ram, “the water was pumped out in his field by the PWS officials from the tanks/storage wall in the right and that damaged the crop of the plaintiff.” This local commissioner in the report dated 10th May, 1991 vaguely refers to “sowed jowar crop“ towards field of the road side” without adverting to any reference or identifiable point or land mark to trace the land. More importantly this report of course does not state the identity of the cultivator or the land. It is impossible to discern the location of the crops or the road reference in the report. The official occupation of the land is revealed from the said report which suggests existence of a pumping station and storage tanks at the place. 159. There is not even an averment let alone document to support that Het Ram or Kewal Ram were in occupation of the suit land after the possession taking report dated 28th October, 1987 pursuant to Shri B.L. Anand‟s order till the alleged local commissioner‟s visit.
160. This court would take judicial notice of the fact that cultivation in Delhi is seasonal and the crop being cultivated would vary from season to season. A person who is cultivating on the land would have sufficient documentary evidence to prove and establish the existence of and nature of the crops and cultivation over the years. Having regard to the claim of period of occupancy and the
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several decades of litigation involved, there would be voluminous evidence of multiple bills of seeds; seedlings; quantum of produce; its sale and disposal etc. There would be bills of transportation as well. No evidence at all is forthcoming. 161. In the instant case, the subject land is completely land locked. Therefore there would also be material and documentary evidence of the manner in which irrigation was effected; electricity bills if a pump was being used etc. Not a single document has been produced till date. 162. Het Ram (and even Kewal Ram) have never made a disclosure of details of the crops and cultivation; source/manner/expenditure of and or seeds/fertilization/irrigation of the land for the cultivation in any pleadings. 163. Several applications have been filed by Het Ram seeking right to ingress and egress without placing the location of the land to which Het Ram is to be permitted access except the interim order to remove the fence and level the land and cultivation which clearly manifest that Het Ram did not have possession or absolute possession over the suit property. The material on record shows that a grievance even has been
ade by Het Ram of fencing of the suit land by IHBAS. No court has given permission to Het Ram to cultivate on the subject land. There is no material at all to show that the land was ever leveled or
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cultivation effected. So far as Het Ram is concerned, the above narration also shows that there is not an iota of evidence to the effect that Het Ram was ever in possession as required in law (or settled possession) of any portion of the suit property. 164. It is noteworthy that in Suit No. 47/2000 (renumbered as Suit No.18/2005), Het Ram had prayed that IHBAS be restrained from stopping his ingress and egress to the suit land. It is evident therefrom that Het Ram cannot access the land which he claims rights over unless IHBAS permits the same. 165. The jamabandi of 1967-68 relied upon by Het Ram placed by IHBAS on record, also refers to the land being “banjar” which clearly shows that there was no cultivation. A jamabandi is certainly not a record of rights. 166. A similar claim arose before the Supreme Court in the pronouncement reported at AIR 1979 SC 1303 Jai Dutt vs. State of Uttar Pradesh and Ors., wherein the court held as below :- “There is neither any factual nor legal basis for the appellant's contention that he had acquired some kind of tenure as a tenant by remaining in twelve years' continuous possession of the land in dispute. As noticed by Additional District Judge and the learned Single Judge of the High Court, the Khasra tendered in evidence before the Public Authority, shows that in the years 1362, 1363, 1365 and 1367 Fasli (which we are told roughly corresponds to 1955-56, 1956-57, 1958-59 and 1960-61 A.D.) the land in dispute was lying banjar (barren). That is to say, in the years 1955 to 1961, the appellant was not in occupation of this land. During these years,
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when the land was lying banjar, its possession would be presumed to be of the lawful owner, viz., the State Government. The appellant's possession over the land is shown for the first time in Khasra of the year 1368 Fasli (roughly corresponding to 1961-62) as "bilatasfia, Ziman 10-Ka". The documentary evidence from the revenue records, accepted by the courts below, had thus discounted the appellant's claim that he had been in cultivatory possession of the disputed land for 12 years preceding the issue of the impugned notice under Section 3(1).” (Emphasis supplied) 167. The letter dated 28th October, 2010 would show that though the stay had been vacated on 11th December, 2006, admittedly, Het Ram had not attempted to or carried on any cultivation till 5th October, 2010. This further indicates that the claim of being in occupancy or possession or carrying on cultivation is completely sham. 168. The primary plea of fraud by Het Ram and Kewal Ram may now be discussed. It is important to note that the four appellants (in PPA No. 88/1973) including Het Ram and Kewal Ram were claiming to be in cultivatory possession of 86 bighas and 5 biswas of land situated at village Tahirpur, Delhi. It is also an admitted position therefore that till 10th April, 1980 (when the LPA No. 113/1975 was decided), the defendant nos. 4 and 5 were asserting the plea that they were tenants against payment of rent of open land and that the Union of India was their lessor.
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169. A person asserting acquisition of title by adverse possession has to give full particulars of the real owner, date on which he entered into possession as well as the date from which he started asserting a title to the property which was adverse to the real owner. There is no such pleadings in CS 293/98. 170. Before the court seized with CS No.293/1998, Het Ram and Kewal Ram not only had to give specifics of the lease of their “forefathers”, but also the details of when these acquired interest from their forefathers. They had to specifically plead when such interest turned hostile. Het Ram and Kewal Ram do not disclose even the names of their so called “forefathers”. Or how, why and when, they (Het Ram and Kewal Ram) derived interest from the so called forefathers? They did not explain whether their forefathers had other heirs and how come they alone acquired interest in the land. 171. Even in the written statement dated 21st November, 2006 filed by Het Ram (defendant no.4) and signed by Kiran Chand (defendant no.5 (i) in the present case, not a word is contained about who were the predecessors in interest of Het Ram or Kewal. They had not averred how their predecessors acquired rights or the interest in the land or when, if ever, they were ever put in possession.
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172. It is evident that the decree dated 8th April, 1999 was obtained without impleading the necessary or proper parties or necessary particulars of the land. Het Ram and Kewal Ram also concealed the fact that the real owners were contesting their claim since 1971; and the fact that they had set up a plea of tenancy from the Government. It was also not disclosed to the court as to the person as well as the correct details of the authority interfering in the claimed possession nor the description of the party who had initiated the proceedings. Government notifications in the public realm as well as proceedings under the PP Act and orders passed therein were also concealed. An examination of the plaint in Suit No. 47/2000 would show that Het Ram even in this plaint does not describe the status of IHBAS impleaded as the sole defendant therein nor does he disclose as to who even according to him was the real owner of the property. Het Ram has prayed only for a decree restraining the defendants from interfering in the “peaceful cultivatory possession of the plaintiff”.
173. While passing the judgment dated 8th of April, 1999, the learned ADJ has referred to the judgment dated 17th December, 1971 but failed to consider the claim of the plaintiff therein as recorded even on 17th December, 1971 that this person was claiming cultivatory possession as a tenant against the payment of rent. It also does not notice that the judgment dated 17th
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December, 1971 was rendered only on the principle that the trespasser in settled possession can be thrown out only by due course of law. IHBAS has admittedly taken such proceedings result whereof has attained finality by orders of the Division Bench. 174. In this regard, in the pronouncement reported at (2006) 7 SCC 416 Hamza Haji vs. State of Kerala & Anr., the court observed that the appellant had falsely claimed that he had title to land and the same had not vested in the State and in the alternative, that he bonafide intended to cultivate the land and was doing the same, whereas as a matter of fact he did not have either title or possession over that land. The Supreme Court held that the plaintiff had played a fraud and had put forward a false claim for obtaining a judgment based on perjured evidence and that such person was not entitled to the exercise of extraordinary jurisdiction in his favour. The court has also extensively considered, precedents with regard to the manner in which a decree can be reopened against a party who had obtained the same by fraud in para 10 to 15 and paras 20 to 24 which read as follows:- “10. It is true, as observed by De Grey, C.J., in Rex v. Duchess of Kingston 2 Smith L.C. 687 that: 'Fraud' is an intrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts ecclesiastical and temporal.
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11. In Kerr on Fraud and Mistake, it is stated that: in applying this rule, it matters not whether the judgment impugned has been pronounced by an inferior or by the highest Court of judicature in the realm, but in all cases alike it is competent for every Court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud. 12. It is also clear as indicated in Kinch v. Walcott 1929 AC 482 that it would be in the power of a party to a decree vitiated by fraud to apply directly to the Court which pronounced it to vacate it. According to Kerr, In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient- but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury. 13. In Corpus Juris Secundum, Volume 49, paragraph 265, it is acknowledged that, Courts of record or of general jurisdiction have inherent power to vacate or set aside their own judgments. In paragraph 269, it is further stated, Fraud or collusion in obtaining judgment is a sufficient ground for opening or vacating it, even after the term at which it was rendered, provided the fraud was extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action. It is also stated:
Fraud practiced on the court is always ground for vacating the judgment, as where the court is deceived or misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair.
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14. In American Jurisprudence, 2nd Edition, Volume 46, paragraph 825, it is stated, Where fraud is involved, it has been held, in some cases, that a remedy at law by appeal, error, or certiorari does not preclude relief in equity from the judgment. Nor, it has been said, is there any reason why a judgment obtained by fraud cannot be the subject of a direct attack by an action in equity even though the judgment has been satisfied.
15. The law in India is not different. Section 44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a Court to consider and decide the question whether a prior adjudication is vitiated by fraud. In Paranjpe v. Kanade ILR 6 BOM 148 it was held that it is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud. In Lakshmi Charan Saha v. Nur Ali ILR 38 Cal 936 it was held that the jurisdiction of the Court in trying a suit questioning the earlier decision as being vitiated by fraud, was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree. xxx
21. In Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and Ors. : AIR2003SC4268 , this Court after quoting the relevant passage from Lazarus Estates Ltd. v. Beasley (1956) 1 All ER 341 and after referring to S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs and Ors. (supra) reiterated that fraud avoids all judicial acts. In State of A.P. and Anr. v. T. Suryachandra Rao : AIR2005SC3110 , this Court after referring to the earlier decisions held that suppression of a
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material document could also amount to a fraud on the Court. It also quoted the observations of Lord Denning in Lazarus Estates Ltd. v. Beasley (supra) that, No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. 22. According to Story's Equity Jurisprudence, 14th Edn., Volume 1, paragraph 263: Fraud indeed, in the sense of a Court of Equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientiously advantage is taken of another. 23. In Patch v. Ward 1867 (3) L.R. Chancery Appeals 203, Sir John Rolt, L.J. held that: Fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of the case, and obtaining that decree by that contrivance. 24. This Court in Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors.: AIR 2005 SC 3330 held that: Suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud.” (Emphasis supplied)
175. The plaint of November, 1998 however does not even remotely suggest, let alone refer to the section 4 of PP Act, notice dated 16th September, 1972 or the proceedings thereon including
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the proceedings in Eviction Case No. 15/E/C/72; PPA No. 88/1973; CW No. 550/1974, LPA No. 113/1975, and the eviction orders dated September, 1972 passed thereon or the possession report dated 20th October, 1987. Het Ram and Kewal Ram were fully aware of the several public notices with regard to the subject land. They (with Inder Raj & Ganga Sahai) had jointly walked the long road of litigation. 176. The effect of a plaintiff failing to plead material facts or to place the material documents before the court resulting in a judgment to be passed, came up for consideration before the Supreme Court in the judgment reported at (1994) 1 SCC 1 S.P. Chengalvaraya Naidu (Dead) By Lrs. vs. Jagannath (Dead) By LRs and Ors. 177. So far as the plea of finality attaching to a judgment or decree so obtained is concerned, the following observations of the Supreme Court in S.P. Chengalvaraya Naidu (Dead) by Lrs. Vs. Jagannath (Dead) by Lrs and Ors. are material and clearly apply to the instant case :-
“5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true
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case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” 178. In para 6 of the case, it was further observed as follows:- “6. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage…….. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party.” (Emphasis supplied)
179. The principles were reiterated by the Supreme Court in the later judgment (2007) 4 SCC 221 A.V. Papayya Sastry & Ors. vs. Govt. of AP and Ors. (G-III). In paras 21, 22, 24, 25 & 26 of this judgment, the Supreme Court has carefully noticed that no finality would attach to an order
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obtained from the Supreme Court by fraudulent conduct and stated as follows :- “21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed: “Fraud avoids all judicial acts, ecclesiastical or temporal.” 22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order --by the first Court or by the final Court-- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. xxx 24. In Duchess of Kingstone, Smith's Leading Cases 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment. 25. It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et doles nemini patrocinari debent).
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand
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vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.” (Emphasis supplied) 180. On the scope of the power of court confronted with fraud by a party resulting in passing of a decree, the following observations of the Supreme Court in A.V. Papayya Sastry & Ors. vs. Govt. of AP Ors. have a material bearing on the issue:
“31. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. : AIR1996SC2592 , referring to Lazarus Estates and Smith v. East Elloe Rural District Council 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, this Court stated;
“22. The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court's business.” (Emphasis supplied)
181. On the issue whether finality could be attached to a judgment obtained fraudulently by a party because the Supreme
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Court has put its seal of imprimatur on it, the court in A.V. Papayya Sastry & Ors. vs. Govt. of AP Ors. (supra) further stated as follows :
“38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order. 39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior.” (Emphasis supplied)
182. The above narration would show that it has been repeatedly held that obtaining relief from court by deliberately suppressing a fact which was fundamental to entitlement of relief sought and founding a claim on non-existent facts, amounts to
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practicising fraud on court which vitiates the decision or the order of the court. It has been further held that it can be so held by any court at any stage. There is also no reference in the judgment dated 8th April, 1999 to the plea of the Union of India & L&DO that they had no right, title or interest in the subject land. On the contrary, in the judgment dated 8th April, 1999, the learned Judge was persuaded again only by the fact that the Land & Development Office or the Union of India (defendants in the suit) did not cross examine these persons. The obvious question as whether such conduct would implicate an owner who was not impleaded as a party was not addressed by the trial court. 183. No finding is also returned on the issue as to how, when and against whom Het Ram and Kewal asserted title. Even during the hearings in the present application, Mr. Patwalia, learned senior counsel for the defendants could not point out even a single instance where Het Ram or Kewal had ever claimed or asserted ownership prior to the suit of 1998.
184. The judgments dated 31st of March, 1975 in W.P.(C) No.550/1972 and the judgment dated 10th April, 1980 passed by the Division Bench in LPA No.113/1975 further show that Het Ram and Kewal were themselves claiming tenancy and cultivatory possession on Government of India land for which they were paying rent against
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receipts. This claim stood rejected in the judgment dated 17th December, 1971 passed in Suit Nos.693 & 703/1969. This very plea has been pressed by Kewal Ram even in RCA No.19/1996 (PPA No.4/2008 and finally rejected only on 4th April, 2009). These facts and pleadings were suppressed by Het Ram and Kewal Ram from court. 185. The learned additional district judge seized of CS No. 293/1998, while passing the judgment dated 8th of April, 1999 has completely failed to consider the impact of this plea which shows that Het Ram and Kewal had never claimed ownership but asserted derived rights as tenants. It is a well settled position that once a tenant always a tenant. Certainly a tenant cannot claim title by adverse possession. The plea that Kewal Ram and Het Ram had perfected title by adverse possession would have to fail on this ground alone. 186. It is also noteworthy that the order of eviction passed under the PP Act proceedings and the above judgments by the Division Bench against Het Ram and Kewal Ram had long attained finality.
187. The Supreme Court has also authoritatively held that every court has an inherent power to recall its judgment or order if it is obtained by fraud on the court. Such judgment can be challenged in collateral proceedings.
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188. In para 32 of IA No.15078/2010 filed in the present case, Het Ram has claimed that he alongwith some labourers on 9th October, 2010 entered upon the “suit premises” in order to make the same fit for cultivation which was prevented by the plaintiff. Which or where, according to Het Ram are these claimed “suit premises”? 189. My attention is drawn to IA No.5778/2007 filed under Section 340 of the CrPC purportedly by “defendant nos. 4 and 5”. The application is not signed by any applicant. It is supported by an affidavit of Sh. Het Ram alone. IA No.5778/2007 is also neither signed by any of the legal heirs of Kewal Ram nor is supported by their affidavits. It seeks initiation of criminal proceedings against Sh. R.C. Gupta, SDM, Seemapuri; Sh. Yashpal Singh, Tehsildar, Seemapuri; Sh. Krishan Lal, Kanungo for “furnishing false information/evidence before this court by way of demarcation report dated 26th March, 2007”. The defendant nos.5(i) to (iii) have not joined in the filing of this application. This application thus wrongly mentions the description of the applicants.
190. Before this court, Het Ram has asserted that the witnesses produced by him in Suit 47/2000 (CS No.18/2005) have established his claim in the suit before the district courts. In support of the opposition to the grant of prayer in the applications under consideration, selective reliance is placed on the extracts of
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evidence of the halka patwari as PW-6; of the Patwari-Nazul Section, DDA as PW-3 and the partial statement of PW-3 Dr. Nimesh Desai Medical Superintendent, IHBAS. It appears that this doctor has been in the witness box on several dates between 23rd July, 2005 to 10th August, 2005; 16th January, 2006 and 14th February, 2006. Het Ram has deliberately not produced the full statements of these witnesses. He has consciously withheld the evidence led by him as a plaintiff including his own deposition, documents, if any, and placed only incomplete testimonies of the defendants‟ witnesses before this court. Given his reference to the land with respect to Kewal Ram litigated, Het Ram was bound to have placed the pleadings in all the afore-noticed cases, including copy of the appeal RCA No.19/1996, PPA No.4/2008 and the judgments therein. 191. In the instant case, not only pleadings and material documents but also binding judicial pronouncements, including the judgment of a Division Bench of this court which had attained finality have been deliberately concealed from the court which passed the judgment and decree dated 8th of April, 1999 in CS No.293/1998.
192. The above observations of the Supreme Court in the several judgments noticed above clearly apply to the conduct of Shri Het Ram and Late Shri Kewal Ram in the instant case. The principles laid down in all the judicial pronouncements would show
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that an order, judgment or decree obtained by fraud is a nullity and has to be treated as non est by every court. It would be so treated even if the same is not challenged. 193. Prima facie the judgment dated 8th of April, 1999 is therefore an outcome of deliberate fraud practised by Het Ram and Kewal Ram; it is therefore non-est and a nullity and cannot bind the present plaintiff or the adjudication in the present case. 194. Can a party urge a plea of resjudicata with regard to a judgment caused to be passed fraudulently? This question was answered in Essar Oil Ltd. (supra) in para 31 in the following terms:- “31. ……An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res Judicata. See Ram Chandra Singh versus Savitri Devi (2003) 8 SCC 319.)
32. ……..The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction, which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be
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exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. xxx
35. Suppression of a material document would also amount to a fraud on the court. (see Gowrishankar v. Joshi Amba Shankar Family Trust : [1996]2SCR949 and S.P. Changalvaraya Naidu's case (supra).” (Emphasis supplied) 195. Clearly the equitable doctrine of res judicata would not attach finality to such a judgment and decree as the judgment dated 8th of April, 1999 which results from fraud by the parties. XI. Doctrine of election 196. Mr. Patwalia, learned senior counsel for the defendant nos. 4 & 5 has urged that the plaintiff could have either sought a review or filed the present suit; and having elected the remedy of the review petition before the trial court, the plaintiff is estopped from filing the suit. It has been urged that the plaintiff is also contesting Suit No. 47/2000. It is also contended that IHBAS filed CR No.476/2000 as well as FAO No.391/2000 and therein conceded expeditious disposal of Het Ram‟s suit. The submission is that by operation of the doctrine of election, the plaintiff is estopped from maintaining the present suit. Therefore the present suit is not maintainable.
197. The doctrine of election is a species of estoppel which
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has been explained in several binding judicial precedents. The observations of the Supreme Court in (1994) 2 SCC 647 A.P. State Financial Corpn. vs. M/s Gar Re-Rolling Mills & Anr., explain the doctrine in the following terms :- “15. The Doctrine of Election clearly suggests that when two remedies are available for the same relief, the party to whom the said remedies are available has the option to elect either of them but that doctrine would not apply to cases where the ambit and scope of the two remedies is essentially different. To hold otherwise may lead to injustice and inconsistent results.” In this case the Supreme Court was considering the option available to the State Financial Corporation whether to invoke the remedy under section 29 or to avail the remedy under section 31 of the State Financial Corporation Act.
198. IHBAS has challenged the actions of Het Ram and Kewal Ram inter alia on grounds of fraud. In United India Insurance Co. Ltd. v. Rajendra Singh and Ors., [2000] 2 SCR 264, the claimant obtained an award by practising fraud upon the Insurance Company for compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company had applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company
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approached the Supreme Court. The Supreme Court allowed the appeal and setting aside the orders holding that:- “15. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. 16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wrangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 17. The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice.” (Emphasis supplied)
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199. In (2004) 9 SCC 619 MD, Army Welfare Housing Organisation vs. Sumangal Services (P) Ltd. The Supreme Court held that the interim order passed by the arbitrator was without jurisdiction and therefore it did not attract the principles of estoppel, waiver and acquiescence so as to bar the petitioner from challenging the award. On this issue, it was further held that the principles of estoppel, waiver and acquiescence were not applicable to an order which had been passed without jurisdiction. The well settled principle that the doctrine of election does not apply as an estoppel against statute was also reiterated in this judgment.
200. Mr. Patwalia, learned senior counsel for the defendant nos. 4 has placed reliance on the pronouncement of the Supreme Court reported at National Insurance Co.Ltd. vs. Mastan & Anr.. In this case, it appears that the respondent who was the claimant had chosen not to withdraw his claim under the Workman‟s Compensation Act and before it reached the point of judgment, approached the Motor Accidents Claim Tribunal. What he did was to pursue his claim under the Workman‟s Compensation Act till the award was passed and also invoked the provision of the Motor Vehicles Act (which was not made applicable to claims under the Workman‟s Compensation Act by section 167 of the Motor Vehicles Act). In this background, it was held by the Supreme Court that he was not entitled to do so. In this case, the Supreme Court had
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construed the provisions of Section 167 of the Motor Vehicles Act. In the concurring judgment of P.K. Balasubramanian, J in para 33, it was observed that the exclusiveness of the jurisdiction of the Motor Accidents Claim Tribunal stood taken away by Section 167 of the Motor Vehicles Act in the one instance, when the claim could also fall under the Compensation Act, 1923. On the doctrine of election, the Supreme Court has observed as follows:- “23. The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.
24.In Nagubai Ammal and Others v. B. Shama Rao and Others [AIR 1956 SC 593], it was stated: "It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto." 25.In C. Beepathuma and others v. Velasari Shankaranarayana Kadambolithaya and others [AIR 1965 SC 241], it was stated: " ………The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows:
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"Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."
[See also Prashant Ramachandra Deshpande v. Maruti Balaram Haibatti, 1995 Supp (2) SCC 539]
26.Thomas, J. in P.R. Deshpande v. Maruti Balaram Haibatti [(1998) 6 SCC 507] stated the law, thus: "The doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.” (Emphasis supplied) 201. The above narration would also show that doctrine of election is premised on a election between substantive legally available remedies in respect of the same transaction and involving the same persons who are parties thereto. 202. IHBAS filed the applications under order 1 rule 10 of the CPC in review petition and section 340 of the CrPC in the decided suit (CS No.293/1998). IHBAS was not a party to this suit.
203. The plaintiff‟s application under Order 1 Rule 10 of the CPC in the decided suit is stated to have been rejected on the
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ground that the court was functus officio. A review petition can only be made by the party to the litigation. Obviously these applications were misconceived and legally not maintainable. 204. In para 16 of the written statement filed in the present suit by Het Ram and Kiran Chand-defendant nos. 4 & 5(i), they have objected that the application filed under Order 1 Rule 10 having been dismissed, the review application is not maintainable. It is also averred that the plaintiff was not a party to the suit (CS No.293/98) and as such cannot seek review of the judgment passed therein. Therefore even as per the defendants, filing of such applications would not preclude the party from bringing the suit for its substantive claim against the other party. IHBAS cannot be deemed to have elected abandonment of its substantive remedy of asserting its rights by way of the present suit. 205. The doctrine of election would for the same reason can have no application to the filing of the application under section 340 of the CrPC and certainly cannot bar the filing of the present suit.
206. An objection has been urged that given the identity of the defence put up by IHBAS to CS No.47/2000, it has waived rights, if any, to bring the present suit. In (2004) 8 SCC 229 Krishna Baha vs. Purna Theatre & Ors. (para 9), the Supreme Court pointed out that the principle of waiver although is akin to the principle of estoppels; the difference between the two, however, is that whereas
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estoppels is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. It was further held in para 10 that whenever waiver is pleaded, it is for the party pleading the same to show that an agreement waiving the right in consideration to some compromise came into being. In this regard, reference can also be made to the pronouncement of this court reported at 21 (1982) DLT 11 Jay Rubber India Pvt. Ltd. vs. State Chemicals and Pharmaceutical Corpn. 207. Faced with a suit, the opposite side has the right to file its defence by way of a written statement. So far as any substantive rights possessed by it are concerned, it is open by the party to either raise a counter claim or to file a separate suit in respect thereof. Mere filing of the written statement and defending its rights cannot be treated as the abandonment of the substantive rights and claims which the party filing the written statement has against the other side. 208. Reference in this regard can also be made to the pronouncement of the Supreme Court at (1995) 3 SCC 33 Mahadeo Savlaram Shelke vs. Pune Municipal Corp.
209. It is noteworthy that CS No. 47/2000 (now CS No. 18/2005) has been filed only by Het Ram. The CR No. 476/2000 and
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FAO No. 391/2000 were filed by the present plaintiff only against Het Ram assailing interim orders passed in favour of Het Ram alone against IHBAS in the Suit No. 47/2000. 210. The suit filed by Het Ram (Suit No. 47/2000) has to be considered and decided on adjudication of the issues raised by the parties therein. 211. IHBAS has a legal right to contest and defend the suit and has a statutory right to assail the orders passed in the said suit (CS No.47/2000). 212. Right to file a suit is conferred on a person under Section 9 of the CPC. It is trite that “waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of anther, either, but not both, of which he might claim.(Ref: Sir Johan Romilly M.R. in Vyuyan v. Vyuyan (1861) 30 Beav. 65, 74: 54 E.R. 813, 817). An issue with regard to waiver of limitation arose in (1974) 96 ITYR 390 (SC) The Director of Inspection of Income Tax (Investigation), New Delhi & Anr. Vs. Pooran Mal & Sons and Anr. The Supreme Court extracted the legal principles from the judicial precedents as stated in Crais on Statute Law (6th Edition) at page 369 which was to
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the following effect :- “As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court.” 213. Kewal Ram or his heirs are not a party to the Suit No. 47/2000. Even assuming for the sake of arguments that the plea of the present suit being barred, on account of pendency of Suit No.47/2000 (18/2005) was tenable, the suit qua legal heirs of Kewal Ram is still maintainable. 214. Suit No. 293/1998 was jointly filed by Het Ram and Kewal Ram. The pleas as well as the judgment dated 17th December, 1971 and decrees in the prior Suit Nos. 693/1969 and 703/1969 as well as the proceedings under the PP Act, 1971 and the challenges thereto were identical. It is apparent that Het Ram would be a necessary and proper party, in a suit if brought, against the legal heirs of Kewal Ram for adjudication of the contentions of IHBAS. 215. Even if the applications, civil revision or the appeal would have been allowed, IHBAS would still be required and entitled to pursue a substantive remedy for the reliefs which have been sought
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in the present suit. 216. This petition and appeal cannot be treated as independent substantive proceedings whereby IHBAS has pressed for the reliefs which have been sought in the present suit. 217. The present plaintiff who was not impleaded as a party to the earlier litigation (the Suits of 1969, 1998), is asserting right, title and interest in the suit property and seeking its protection by way of the present suit. 218. Het Ram has also objected to the maintainability of the present suit on the ground that the same tantamounts to forum shopping by the plaintiff and that having repeatedly consented to expeditious disposal of Suit No. 47/2000 in the appeal before this court, IHBAS would thereby stand estopped from maintaining the present suit.
219. It is now necessary to consider the impact of the orders dated 16th February, 2004 in FAO No. 391/2000 and the subsequent orders granting extension of time for completion of the proceedings in Suit No. 47/2000 are concerned, IHBAS has consented only to expeditious adjudication in Het Ram‟s suit. An order directing expeditious trial without adjudicating on the issues or claims raised therein certainly does not tantamount to an adjudication of the rights of the parties. Nor can consent by a party to an order extending time for completion of the trial cannot be deemed waiver
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of the substantive rights of the party with regard to the land involved. IHBAS has at no stage stated that it has abandoned its rights or claims against Het Ram and Kewal Ram or objections to the decree. There is, therefore, no merit in the plea that IHBAS would stand estopped from filing, maintaining or prosecuting the present case on account of the order dated 16th February, 2004 in FAO No. 391/2000 or the orders of extension passed thereafter. On the contrary, these orders manifest the urgency expressed on the part of IHBAS for expeditious proceedings in the suit filed by Het Ram-defendant no. 4 herein. 220. Another limb of this objection pressed is that IHBAS is contesting CS No.47/2000 on the same pleas as asserted in the present case and therefore cannot as well maintain the present case.
221. This objection is to be noted only to be rejected. There is no legal prohibition from a party seeking a substantive decree based on the pleas taken by it in defence to a case filed by the other side. This objection would therefore have no application to the facts of the present case. Before this court, there is nothing to show that the plaintiff at any point of time waived its objection that the decree which had been obtained by Het Ram and Kewal Ram was a decree obtained by fraud and was void or its right to prohibit them from wasting property which had vested in IHBAS.
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222. Mr. Sanjay Poddar, appearing for the defendant-Govt. of NCT has urged that in view of the non-impleadment of the necessary and proper party in the prior adjudication, CS No. 293/1998 would require to be treated as a case decided ex-parte. Reliance has been placed on the following observations in para 15 and 16 of the pronouncement of the Supreme Court reported at (2009) 2 SCC 205 Mahesh Yadav and Ors. vs. Rajeshwar Singh Ors., in this regard:- “15. The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the Court is not powerless to do so. If an application for setting aside the ex parte decree was maintainable at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. When an ex parte decree is passed, the defendant may have more than one remedies. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. He may prefer an appeal from the ex parte judgment and decree. In a given case, he may also file a review application. 16. In Bhanu Kumar Jain v. Arcbana Kumar and Anr. MANU/SC/1079/2004 : AIR2005SC626 , this Court held: “26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended
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to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true.” It was, however, observed: “28. It is true that although there may not be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex parte decree can be filed; one after the other; on the ground of public policy the right of appeal conferred upon a suitor under a provision of statute cannot be taken away if the same is not in derogation or contrary to any other statutory provisions.” 223. The objection taken by Het Ram on a plea of waiver is not maintainable for yet another reason. In AIR 1971 SC 2213 Lachhu Mal vs. Radhey Shyam, the Supreme Court held that the general principle is that every one has a right to waive and to agree to waive only such advantage of a law or rule which has been made solely for the benefit and protection of the individual in his private capacity. Such law or rule or right may be dispensed with without infringing any public right or public policy. (Ref: AIR 1964 SC 1300 Dhirendra Nath Gorai vs. Sudhir Chandra).
It has been held in (2004) 8 SCC 229 Krishan Bahadur vs. Poorna Theatre (para 188) that if a party pleads waiver, it is for such party to show that an agreement waving the right in consideration to some compromise came into being. In this regard, reference can also be made to the judgment at (21) 1982 DLT 11
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Jay Rubber India (P) Ltd. Vs. State Chemicals & Pharmaceuticals Corpn. 224. In the judgment of the Supreme Court reported at (2008) 12 SCC 401 : AIR 2008 SC 2919 Babulal Badriprasad Varma vs. Surat Municipal Corporation & Ors., the court laid down the parameters within which a right can be waived by the party as follows :- “10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.” 225. The relief of injunction is an equitable relief. In (1994) 2 SCC 647 A.P. State Financial Corpn. vs. M/s Gar Re-Rolling Mills & Anr., the Supreme Court observed that “there is no equity in favour of a defaulting party which may justify interference by the courts in exercise of its equitable extraordinary jurisdiction under Article 226 of the Constitution of India to assist it in not repaying its debts. The aim of equity is to promote honesty and not to frustrate the legitimate rights of the Corporation which after advancing the loan takes steps to recover its dues from the defaulting party”. The Supreme Court further observed as follows:-
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“18. …….A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.” 226. The land in question is public premises and needed for an Institute of Human Behaviour & Applied Sciences. There is a huge element of public interest in the matter. The defendants before this court are asserting waiver contending election by IHBAS of having taken the aforenoticed steps. Given the nature of the public property involved and its utilization for a hospital, there is no question of waiver of the right to take substantive proceedings. 227. It is noteworthy that before this court, the learned counsels for the private defendants have not been able to point out any statutory prohibition to the maintainability of the present suit. The objection to the maintainability of the present suit premised on doctrine of election, looked at from any angle, is misconceived and legally untenable.
228. It, therefore, cannot be held that it has waived its rights or “elected” a “remedy” which would prohibit its right to assert its claims against Het Ram as well as Kewal Ram (through his heirs) by appropriate legal proceedings, merely because IHBAS is contesting Het Ram‟s claim in CS No.47/2000 or has exercised its statutory
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right of challenging interim orders passed therein by filing a civil revision and an appeal. XII. Claim of Het Ram of acquisition of title for Adverse possession (i) General Principles 229. The primary claim urged by Het Ram even in the present case rests on a plea of acquisition of title over the suit land by adverse possession. It is, therefore, necessary to examine the essentials of such a claim. On this issue, the principles laid down by the Supreme Court in the authoritative pronouncement reported at (2007) 6 SCC 59 P.T. Munichikkanna Reddy & Ors. vs. Revamma & Ors., shed valuable light. The court reiterated the nature of pleadings required to support the plea of acquisition of title by adverse possession and the burden of proof as well as the nature of rights observing as follows:- “ Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property. This test forms the basis of decision in the instant case.
Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have
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painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one ways: firstly, due compliance on this count attracts Limitation Act and it also assists the court to unearth as the intention to dispossess. The intention to dispossess needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the owner of the property on paper. …………Intention implies knowledge on the part of adverse possessor. The issue is that intention of the adverse user gets communicated to the owner of the property on paper. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the owner of the property on paper.” (Underlining supplied) In this judgment, the court also drew a distinction between „intention to dispossess vis-à-vis intention to possess‟. 230. In para 5, the court observed that “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”.
231. It was further observed in para 6 that “efficacy of adverse possession in law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires
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through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property”. 232. The Supreme Court had authoritatively laid down the tests and the nature of the inquiry by the court as follows:- “8. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially "willful 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 paper owner, 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.” 233. In para 21 of P.T. Munichikkanna Reddy vs. Revamma (supra), the Supreme Court reiterated the principle that „animus possidendi‟ is one of the essential ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence‟.
The principle laid down in the earlier pronouncement in (1994) 6 SCC 591 Thakur Kishan Singh vs. Arvind Kumar to
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the effect that “mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession” was also reiterated. 234. On the aspect of intention in adverse possession law, the court has held that intention implies knowledge on the part of adverse possessor. 235. In para 35 of the pronouncement in P.T. Munichikkanna Reddy (supra), the principle laid down in the earlier pronouncement reported at (2005) 8 SCC 330 Saroop Singh vs. Banto to the effect that “in terms of Article 65, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant‟s possession becomes adverse” was also emphasized. (ii) Nature of pleadings to claim acquisition of title by adverse possession, evidence and nature of inquiry by the court 236. On the issue of nature of pleadings, so far as a claim of acquisition of title by adverse possession is concerned, reference may also be made to earlier pronouncements of the Supreme Court reported at (1995) 6 SCC 309 R. Chandevarappa & Ors. vs. State of Karnataka & Ors., the court held as follows:-
“11. The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in
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possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title ' from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant.” 237. The Supreme Court in the judgement reported at AIR 2004 Punjab & Haryana 353 Hazara Singh & Anr. Vs. Faqiria (D) by L.R. & Ors. has authoritatively held that mere long and continuous possession by itself will not constitute adverse possession. Merely because in revenue record their possession was recorded as „forceful‟ the same cannot be said to be adverse to defendants.
238. The essential and important component of establishment of a plea of adverse possession is the assertion of title of the property by the claimant. The denial of title of the real owner is implicit in the assertion of title by the person claiming the acquisition of title by adverse possession. The question is how must such denial of title be displayed? In (2005) 7 SCC 653
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Devasahayam (Dead) By LRs vs. P. Savithramma & Ors., the court had occasion to consider an eviction petition under the applicable rent statute on the ground of denial of title of the landlord by the tenant. The observations of the court on the aspect of denial of title shed valuable light on this issue in the present case in the context of a claim of title by a person claiming acquisition of title by adverse possession. It was observed by the court thus:- “20. The pleadings as are well-known must be construed reasonably. The contention of the parties in their pleadings must be culled out from reading the same as a whole. Different considerations on construction of pleadings may arise between pleadings in the mufossil court and pleadings in the original side of the High Court. 21. So read, the plaintiffs in its plaint merely ascribed that he continued to be in possession of the tenanted premises after the oral agreement of sale was entered into by and between the parties pursuant to or in furtherance thereof. xxx
23. Under the provisions of the Transfer of Properly Act, a landlord can evict his tenant only upon service of proper notice as envisaged under Section 106 of the Transfer of Property Act. A lease can be determined by forfeiture inter alia when the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. xxx
27. In Sheela and Ors. v. Firm Prahlad Rai Prem Prakash : [2002]2SCR177 whereupon Mr. Nageshwara Rao placed strong reliance, Lahoti, J., as the learned Chief Justice then was, while construing the provisions of
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Clause (c) of Sub-section (1) of Section 12 of the M.P. Accommodation Control Act 1961 observed: xxx "17. In our opinion, denial of landlord's title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant within the meaning of Clause (c) of Sub-section (1) of Section 12 of the M.P. Accommodation Control Act, 1961. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party. A tenant bona fide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by the rent control law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy. Such an act of the tenant does not attract applicability of Section 12(1)(c) abovesaid. It is the intention of the tenant as culled out from the nature of the plea raised by him, which is determinative of its vulnerability." (Emphasis supplied)
239. It is therefore well settled that continuous hostile or unlawful possession simplicitor by itself is not sufficient to establish the claim of title by adverse possession. The party so claiming is legally required to establish that it has asserted a claim of ownership which is hostile to that of the real owner and to the owner and public at large and set up a title coupled with possession, coupled with hostile, open and continuous possession.
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240. The above principles apply to a claim of acquisition of title by adverse possession. Clearly, an occupant setting up a plea of ownership by adverse possession, has to explicitly and in clear terms, have claimed title in absolute and unequivocal terms as against the real owner. (iii) Burden of proof and nature of enquiry 241. The court also authoritatively examined not only the ingredients of adverse possession, the burden of proof on the person so claiming title and the nature of inquiry into the particulars of adverse possession in the judgment in P.T. Munichikkanna Reddy (supra) and laid down the essential principles thus :- “34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession.” From paras 40 to 50 in P.T. Munichikkanna (supra) the Supreme Court has considered the important aspect of the matter that the right to property is considered to be not only a constitutional or statutory right but also a human right.
242. In the decision dated 23rd September, 2008 in Civil
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Appeal No. 1196/1997 Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan & Ors.(AP-V) the principles laid down in P.T. Munichikkana Reddy (supra) as well as earlier pronouncements of the Court were reiterated by the Supreme Court thus:- “13. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy : [1957]1SCR195 while following the ratio of Debendra Lal Khan's case (supra), observed as under: “xxx It is a settled rule of law that as between co- heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to be knowledge of the other so as to constitute ouster.” The court further observed thus: “The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.” xxx (iv) Plea of adverse possession – when taken by Het Ram and Kewal Ram? 243. In the judgment dated 23rd September 2008 rendered in Hemaji Waghaji (supra), the Supreme Court placed reliance on several judicial precedents and reiterated the principles laid down. The judgment in Hemaji Waghaji (supra) reiterates the prior principles as follows :-
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“17. In Md. Mohammad Ali (Dead) by LRs. v. Jagadish Kalita and Ors. : (2004) 1 SCC 271, this Court observed as under: “21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi. 22. ...We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein.” 244. The suit (CS No.293/98) was jointly filed by Het Ram and Kewal Ram and the decree dated 8th April, 1999 passed therein. 245. The issue thus, is whether Het Ram or Kewal Ram ever raised the proper pleas and satisfied this stringent test? If it could be held that they did, then, on what date and in what manner? 246. It now requires to be seen whether the claim made by Het Ram (in the present case or prior) meets these legal requirements. It is noteworthy that in the instant case it is an admitted position that the ownership of the land vested in Govt. authorities. 247. In para 6 of the plaint, in Suit No. 293/1998, Het Ram and Kewal have asserted that the Government has attempted to dispossess them. This fact by itself shows that the real owners were asserting right, title and interest in the subject property.
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While the authorities say that trespass was being prevented or removed, these private persons urge that their possession was being interfered with. 248. Mr. Sanjay Poddar, the learned senior counsel for the Govt. of NCT of Delhi and Mr. Sultan Singh, learned counsel for IHBAS have urged that a plea of acquisition of title by adverse possession has to be against the true, real and right owner only. 249. An order dated 20th December, 1996 was passed by the Estate Officer of IHBAS against Kewal Ram. 250. RCA No.19/96 (subsequently registered as PPA No. 04/2008) was filed by Kewal against Estate Officer, IHBAS under section 9 of the PP Act. This appeal was pending till the dismissal in default on 11th February, 2000 and on merits on 4th April, 2009. As per copy of an order dated 4th April, 2009 passed in the same appeal on merits Kewal Ram had claimed to be a tenant against payment of lease money to the erstwhile Delhi Improvement Trust, succeeded by the DDA. He had further claimed that he was only in cultivatory possession of the subject land. In this appeal, which was filed, Kewal Ram has not set up any plea of ownership by adverse possession.
251. On this very issue, so far as Suit No. 293/1998 is concerned, in para 1 of the plaint, Kewal and Het Ram merely stated that they were in cultivatory possession of land measuring
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about 39 bighas for the last more than fifty years. In para 3 of the plaint in CS No.293/1998, a bald plea was taken for the first time that “Kewal and Het Ram have also become owners of the said land by way of their right of adverse possession as against the defendants and other departments of Government of India and public at large on account of hostility of their rights continuously against these authorities.‟ However, the defendants have been illegally claiming the ownership right in respect of the said land knowing fully that the plaintiffs have become owners of the said property on account of their right of adverse possession.” 252. In Suit No. 293/1998 Kewal Ram and Het Ram made a carefully incomplete reference to Suit No. 693/1969 as well as the aforesaid judgment dated 17th December, 1971 without disclosing the details of their claims or the adjudication therein or the steps taken by the real owners of the suit land under the Public Premises (Eviction of Unauthorised Occupants) Act. The litigation thereafter and the pronouncements of this court are not mentioned.
253. It is well settled that a party who is seeking a relief as a plaintiff has to establish its claim which, in the instant case would include its plea that the defendants in the suits were actually the real owners of the suit property. Het Ram and Kewal do not even describe the defendants in the suits filed by them or how a claim
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based on title was maintainable against them. In fact they deliberately do not even disclose the particulars of real owner of the property in the pleadings in any litigation when, clearly the suit claims were untenable in the absence of the real owner. Even in the written statement filed by Het Ram in the present case, this is not disclosed. 254. Despite the clear dispute with regard to title and authority of the Union of India and the Land & Development Officer in Suit No. 293/1998, the learned ADJ does not deal with or answer the primary question of who is the real owner? 255. A Division Bench of this court (of which I was a member) had occasion to consider the plea of acquisition of ownership rights by adverse possession. In the judgment reported at MANU/DE/0546/2005 Sh. Shahabuddin vs. State of U.P. & Ors., a challenge was laid to the rejection of this plea by the trial court. On the aspect of title in Shahabuddin, it was observed thus:-
“29. It is thus implicit that a claim of adverse possession can arise only against the real owner of the property. In a case where title itself of the plaintiff is disputed, the plaintiff would have to establish lawful title in accordance with law. In such a case, the defendant also would have to establish by clear and cogent evidence as to the manner in which it had expressed hostile intention and a claim adverse to that of the real owner of the property. It
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may not be wrong to state that the defendant or his adverse possession would have to assert as to the name and particular of the person against whom it was claiming title by adverse possession. xxxx
“xxxx There must be on the part of the trespasser, an expressed or implied denial of title of a true owner and animus of exclusive ownership. (Ref. AIR1976Ori218 entitled Basanti Dei v. Bijayakrushna Patnaik and Ors.)”. (Emphasis supplied)
256. In the pronouncement of the Supreme Court reported at 2000 (5) SCC 562 State of Rajasthan vs. Harphool Singh (Dead) through His LRs, the court set aside the findings returned by the high court on the ground that they were not based on any legally acceptable evidence and that the necessary legal ingredients of adverse possession had not been substantiated. It was observed that the claim of the plaintiff of title was held mechanically proved merely on the basis that the plaintiff was found to be the owner. It was reiterated that in order to substantiate a claim of adverse possession, the ingredients of open, hostile and continuous possession with required animus had to be proved against the State for a continuous period of 30 years. Slender material could not be considered perfunctorily and the claim has to rest on legal evidence. In this regard, the court had come down heavily on the findings of the appeal court and observed as follows:-
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“13. ….. While that be the factual position, it is beyond comprehension as to how anyone expected to reasonably and judiciously adjudicate a claim of title by objective process of reasoning could have come to the conclusion that the legal requirement of 30 years of continuous, hostile and open possession with the required animus stood satisfied and proved on such perfunctory and slender material on record in the case. The first appellate court as well as the High Court ought to have seen that perverse findings not based upon legally acceptable evidence and which are patently contrary to law declared by this Court cannot have any immunity from interference in the hands of the appellate authority. The trial court has jumped to certain conclusions virtually on no evidence whatsoever in this connection. Such lackadaisical findings based upon mere surmises and conjectures, if allowed to be mechanically approved by the first appellate court and the second appellate court also withdraws itself into recluse apparently taking umbrage under Section 100, Cr.P.C.(sic), the inevitable casualty is justice and approval of such rank injustice would only result in gross miscarriage of justice.” (Emphasis supplied) Before the learned ADJ deciding CS 293/1998, there was neither pleading nor any evidence. The discussion in the judgment dated 8th April, 1999 is interesting. Despite the defendants having stated that they had no relationship to the suit land, no issue was struck on this plea. There is also no discussion of the impact of the binding findings in the previous adjudication (the suit of 1969; the PP Act proceedings, the judgments in CW No.550/72 & LPA No.113/75) between the parties. The real owner was not even a party.
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There is no material at all to support a conclusion that either Het Ram or Kewal Ram ever asserted a title against the real owner, (or any person) except the claim made for the first time in the plaint in CS No.293/1998. 257. The claim of title hostile or adverse to that of the real owner has to be made before approaching the court of law. It cannot for the first time be raised in pleadings in a suit. 258. Before the courts, Het Ram and Kewal have also not set out any particular date or manner or the person/authority against whom they asserted a title hostile to that of the real owner. There is not an iota of pleading or documentary material placed before any court. There was none in CS No.293/1998. There is none at all in the present case. 259. Het Ram and Kewal Ram have not challenged the Government notifications at any point of time, not even in the present proceedings. Kewal Ram & Het Ram have thus never disputed the Delhi Government‟s ownership of the land and title of IHBAS. No representations sent at any time challenging the correctness of the notification. Instead in CS No.293/98 they set up a plea of ownership by adverse possession against the Union of India.
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260. It would appear that neither Het Ram nor Kewal Ram have asserted title of the land against the real owner; not even in the litigation prior to 1998. 261. Having regard to the judgment dated 8th April, 1999 decreeing Suit 293/1998, I find that it records that only the following issue was framed:- “Whether the plaintiffs are owners in possession upon the suit land by way of adverse possession? OPP” 262. The above narration also makes it abundantly clear that the forefathers of Het Ram and Kewal Ram also had never claimed right or ownership or title to the said property. After them, Het Ram the defendant no. 4 and Kewal Ram (represented by defendant nos. 5(i) to (iii) herein) have also laid no claim of ownership till 1998 or a claim of possession of the land resting on title as noticed in the judgment of the Division Bench on 10th of April, 1980. The defendant nos. 5(ii) and (iii) do not challenge IHBAS‟s claim in the present case.
263. Het Ram appears to have filed an execution petition on 15th September, 1982. Copy of the execution petition, details of the orders passed therein and pleadings have been concealed by him from this court. Reliance is placed on an order dated 5th May, 1989 passed therein which suggests that the execution petition presumably seeks execution of the judgment dated 17th December,
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1971 wherein Kewal Ram and Het Ram had asserted a plea of tenancy of the subject property from the Government of India. Therefore, even till 1989, Het Ram was relying on a plea of occupancy as a tenant against receipts from the Government. 264. The same stand has been asserted in Kewal Ram‟s appeal in 1996 which was dismissed for default of appearance on 11th February, 2000 and on merits by the order passed as late as on 4th of April, 2009 rejecting this plea. 265. Unfortunately, the proceedings in the previous litigation are premised on the incorrect and completely erroneous assumption that the defendants in those cases were required to prove title. The aforenoticed judgment dated 8th April, 1999 proceeds as if the defendants were required to establish their case without even examining as to whether the plaintiff had discharged the onus and burden of proof on it to establish its claim.
266. A claim of ownership against a person or authority not having rights or title in the property is of no consequence so far as acquisition of title by adverse possession is concerned. . The concealment by Het Ram and Kewal Ram with regard to the ownership of the land, and the complete lack of pleadings and materials with regard to the description of the party impleaded as defendant and the real owners of the property and absence of particulars of date/property with regard to person against whom
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they asserted adverse title or possession in the present case prima facie shows that Het Ram and Kewal Ram have never asserted a title hostile to the real owner or adverse possession till date. The essential elements of the plea of acquisition of title by adverse possession by Het Ram (or even Kewal Ram) are thus completely missing. (v) Nature of Possession to support a claim of acquisition of title by adverse possession 267. It is further urged by Mr. Sultan Singh that the suit property was in the nature of an open tract of land and possession thereof, has to go with title. The plaintiffs have urged that an isolated act of trespass or presence on the suit land on any occasion or date would not tantamount to „possession‟ in the eyes of law and would not even create such right to remain in possession which the courts would protect, let alone result in acquisition of ownership by adverse possession. Learned counsels for the plaintiff has submitted at great length that there are no pleadings or material placed by Het Ram or Kewal Ram or his heirs on any record in this regard as well. This is staunchly disputed by Mr. Arvind Nayar, learned counsel.
268. It is trite that every unlawful possession is also not adverse possession. However, The contesting defendant would suggest that occupation of the land on any particular date would
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justify its claim of ownership by adverse possession and that the decree dated 8th April, 1999 would bind adjudication on this question. Therefore, before examining the rival claims, it is necessary to understand the essential ingredients of such adverse possession to perfect a title to the land, including the pleadings necessary to support the same as well as the onus and the burden of proof.
In AIR 1997 SC 2930 D.N. Venkatarayappa and Anr. v. State of Karnataka and Ors., the Supreme Court held that “in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession.” 269. On the aspect of possession to support the acquisition of title by prescription in Shahabuddin vs. State of U.P. (supra) The court held that :-
“26. A person claiming title by adverse possession has to show that he has asserted hostile title as well as done some overt act to assert such claim. Even mere continuance of unauthorised possession by licensee after termination of license for more the an 12 years does not enable a licensee to claim title by
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adverse possession. Ouster of the real owner does not mean actual driving out of the co-sharers from the property. In any case, it will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. xxx 28. A claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the real owner, the burden is always on the person who asserts such a claim to plead and prove by clear and unequivocal evidence that his possession was hostile to the real owner and in deciding such a case the Court must have regard to the animus of the person doing such.” xxx 30. Actual possession without the required animus militates against the claim of title based on adverse possession. Thus, mere unlawful possession does not mean adverse possession. A trespasser's possession is adverse to the true owner only when the adverseness of the trespasser's claim is within an owner's knowledge. 31. So far as property of the State is concerned, the question of a person claiming adverse possession requires to be considered most seriously inasmuch as it ultimately involves destruction of right and title of the State to immovable property conferring upon a third party an encroacher, a title where, he had none. In order to substantiate such a claim of adverse possession, the ingredients of open, hostile and continuous/possession with the required animus should be proved for a continuous period of 3 years.” (Emphasis supplied)
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270. So far as the claim of adverse possession is concerned, it has been authoritatively held that there are human right issues attached to the same. In this regard, in Shahabuddin vs. State of U.P. (Supra), this court had observed as follows :-
“59. Person pleading adverse possession has no equities in his favor. 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. In this behalf, reference may be made to the judgment reported at AIR1996SC869 entitled Dr. Mahesh Chand Sharma v. Smt. Raj Kumari Sharma." 271. The claim by Het Ram has to be examined in the background of these well settled principles. 272. The plea of Het Ram and Kewal Ram in para 7 of S.No.293/1998 was only that there was “no objection by real owner”. Therefore Kewal Ram and Het Ram‟s claim of acquisition of title, rested on a mere plea that the real owner was silent on their claim of occupation and that this was sufficient for a declaration of their title.
Thus it would seem that the learned trial court has been influenced by the plea set up before it that the alleged silence of the defendant in the suit (who was not the owner of the property) to the claimed occupancy of the subject land (not supported by any material or documentary evidence) by the plaintiff, by itself was enough to establish a legal entitlement of protection of the same
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and enough to support a plea of adverse possession. This was factually incorrect. It is certainly not the correct position in law. 273. The judgment passed on 17th December, 1971 in Suit No. 693/1969 has noted that defendant no.2 was struck off the record by an order passed on 17th April, 1968. It was further noted that defendant no. 1 (UOI) and defendant no.3 had contended that the land in the suit was nazul land with the Delhi Development Authority; that it was transferred on 7th May, 1965 for extension of a Hospital for Mental Diseases and its physical possession was made over by the Delhi Development Authority to the CPWD and that Het Ram/Kewal Ram unauthorisedly took possession of the suit land under the garb of the court‟s injunction order in an earlier suit between the parties after 7th May, 1965. It was asserted that the plaintiff was only a trespasser on the subject land.
274. Para 11 of the judgment dated 17th December, 1971 (of Shri Ripu Sudan Dayal, SJ) notes that in Suit No. 703/1969 defendants had led the evidence of DW 3, Shri Ram Nath, Naib Tehsildar of the DDA to the effect that on 7th May, 1965 he took over possession of the suit land lying vacant and uncultivated by beat of drum on the spot. DW 3 has also stated that after taking the possession of the suit land, the land was handed over to the DDA. DW-2 Shri Shanker Singh, Senior Surveyor of the Delhi Land and Development Office corroborated DW3 when he had deposed that
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on 7th May, 1965, he took over the possession of the suit land from the Kanungo Shri Ram Nath of the DDA and handed over possession of the same to Sh. R.K. Jain, Section Officer. Appearing as DW-5, Sh. R.K. Jain stated that on 7th May, 1965 he took over possession of the site for the Hospital for Mental Diseases, Shahdara; that the land site was uncultivated and free from encroachment at that time. DW-6 Sh. H.L. Bhatia, Section Officer, CPWD, D-Division, New Delhi had further deposed that possession of the site in dispute was taken over by him on 17th May, 1965 for the construction of the hospital for mental diseases. Dr. P.B. Bakshi, Medical Superintendent of the Hospital for Mental Diseases had appeared as DW-4 and confirmed that possession of the disputed land was taken over by the CPWD on behalf of the hospital on 7th May, 1965. The judgment (dated 17th December, 1971) notes that DW-7, Sh. P.R. Kalra, Naib Tehsildar, DDA also deposed that the possession of the suit land was transferred by the DDA on 7th May, 1965 to the Land Development Officer and further that at that time the land was lying vacant.
275. It is important at this stage to note some other observations given in the judgment dated 17th December, 1971 passed in Suit No. 693/1969 filed by Kewal Ram (as well as in Suit No. 703/1969 entitled Het Ram vs. UOI & Ors) passed by Sh. Ripusudan, SJ, Delhi. After noticing the evidence of the seven official witnesses with regard to the transfer of the land to the
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hospital as well as the possession, the judgment makes the following:- “12. It is clear from the above that there is no evidence of the defendants clearly to show that the plaintiff was dispossessed. The evidence is only to the effect that certain officers took the possession of the suit land on 7.5.65. That evidence is of no value as the matter relates to open land and any person may say that possession was taken over by him.xxx” The trial court was thus of the view that the witnesses were of no value as the matter relates to open land and any person may say that possession was taken over by him. The learned trial court completely overlooked that the possession claim made by Het Ram and Kewal Ram was over bare land and deserved the same treatment. 276. Het Ram has not placed a single document before this court to support even occupation or presence on the land. on any date. The parties have not been able to point out any document which was before the court in the Suit No.693 and 703/1969 to support a plea of settled possession or ouster of the real owner. The judgment of 17th December, 1971 also does not refer to any document. No challenge to the notification of 1965 was laid. It was for the plaintiff to prove its case. Yet, in para 12, Shri Ripusudan held as follows :-
“12. ……The documents referred to earlier show that the plaintiff was in possession upto 7.5.65 from
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the evidence of Shri Ram Nath, Naib Tehsildar, DDA also it appears that the defendants were not in possession of the suit land prior to 7.5.65 the plaintiff was admittedly in possession on the date of the institution of the suit. The defendants have contended in their written statement that the plaintiff unauthorisedly took possession of the suit land under the garb of courts injunction order in an earlier suit between the parties after 7.5.65. No date has been given when the possession was allegedly taken unauthorisedly by the plaintiff. The allegation contained in the written statement is vague and no evidence has been led to prove that the plaintiff took over the possession under the garb of any injunction order. I have, therefore, no reason to disbelieve the evidence of the plaintiff that he has been in possession over the disputed land for the last 20 years.” The following reasons were given in support of the decree :-
“13. Inspite of the fact that the plaintiff had no right to occupy the disputed land and his possession was unauthorized, still under the law of the land, he had the right to the effect that he must not be dispossessed except through due process of law. Our country is governed by the constitution and Article 31(1) of the same lays down that no person shall be deprived of his property except by the authority of law. This fundamental right is a command of the constitution to the state not to proceed against its citizens except in accordance with the procedure prescribed by law and the obligation of the state to obey it gives rise to its corresponding right in favour of the subjects by which their peaceful possession and enjoyment of a property in dispute is protected until action is taken against them in accordance with law. Again under the Ordinary Civil Law, even on trespasser cannot be thrown out except in due course of law. Even unauthorized occupants are entitled to the protection of the law to the extent that they cannot be dispossessed except in due course of law. In this view, I find support from the authority of
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Baldev Raj vs. Delhi Development Authority 1971 RLR 84, Mohan Lal vs. State of Punjab & Ors. 1970 All India Rent Control Journal 95 and Bishan Dass vs. State of Punjab AIR 1961 SC 1570.” (Underlining supplied) 277. Interestingly, this order also notices that the plaintiff stood dispossessed on 7th May, 1965. In this background, despite the material that certain officers took possession of the suit land on 7th May, 1965, a decree for permanent injunction dated 17th December, 1971 was passed against defendant nos. 1 and 3 (in that suit) restraining them from interfering with the admittedly non-existent possession of the plaintiff over the suit land (on the date of passing of the decree), except by due process of law. Het Ram and Kewal Ram did not challenge this decree. 278. As per the further documents placed by the plaintiff in the present proceedings the land is stated to have been taken over by the Medical Superintendent of the hospital on 28th October, 1987 and a communication dated 29th October, 1987 was sent by him to the Joint Secretary. This letter also records that the project officer had been requested to put the wire fencing etc to prevent further unauthorized occupants and that the land may be handed over to the GTB Hospital as decided for its use.
279. The taking over of possession has been confirmed by a communication dated 3rd November, 1987 of the Project Manager and 5th December, 1987 by Sh. A.K. Garg Executive Engineer who
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informed the Project Manager of the GTB Hospital of the same. 280. After the taking of possession by the hospital in 1987, a letter dated 26th April, 1991 was addressed thereafter by the Medical Superintendent of the Hospital to the DCP (East) intimating the apprehension that some persons may make efforts to encroach upon the land. With regard to such event, a letter dated 20th December, 1996 sent by IHBAS to Kewal Ram has been placed on record. 281. Mr. Patwalia, learned senior counsel appearing for the private defendants has submitted that the notice dated 20th December, 1996 is an admission on its part that Kewal Ram was in possession of the subject land. This notice dated 20th December, 1996 has to be examined in the light of the several actions by the authorities which have been noticed hereinabove including taking over of the possession on 5th December, 1987. 282. I find that Dr. R.K. Yadav, the learned ADJ in his judgment dated 4th of April, 2009 (in PPA No.4/2008) rejecting Kewal Ram‟s challenge to the notice dated 20th December, 1996, has clearly concluded that possession of the land was taken over. The following observations of the learned ADJ on the communication dated 20th December, 1996 in the judgment dated 4th of April, 2009 passed in PPA No.4/2008 are material and read as follows :-
“5. As the contents of the impugned notice tell that it
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was a notice to the appellant to remove his belongings out of Government land, which was in his possession as trespasser. Whether said notice intimates the appellant, intention of the Estate Officer to initiate proceedings, as contemplated by Section 4 of the Act? For initiation of a proceeding under section 4 of the Act, the Estate Officer is required to serve a notice on any person, who is in unauthorized occupation of public premises, calling upon him to show cause as to why an eviction order should not be passed, besides specifying the grounds on which eviction orders is proposed to be made and requiring him to show cause, if any, against the proposed order and to appear before him on a specific date, alongwith evidence, which he proposed to produce in support of cause to be shown and also for personal hearing. When impugned notice is perused, it came to light that it is not a notice under sub-section (1) of section 4 of the Act. Neither the impugned notice is a eviction order under sub-section 91) of section 5 of the Act. As contents of the notice tell, the appellant was called upon to handover possession of land in dispute, reminding him in case of his non-compliance, possession of land would be taken by way of removal of his belongings. Therefore, this notice was a sort of hue and cry notice for the appellant to remove his belongings. It was in the course of execution of eviction order, which was already passed against the appellant and others and attained finality, as detailed above.
6. It was agitated that possession of the land in dispute was taken over on 23.12.96 with police aid and thereafter appeal had become infructuous. Under these circumstances, it is evident that appeal became infructuous on the very day, when it was filed. Contentions of the appellant that execution of order cannot be taken over after a period of 12 years is uncalled for. Act nowhere specifies the period of limitation during which the execution of eviction order may be carried out. Limitation Act provides period of limitation during which assistance of the executing Court can be sought, for execution of an order. Here in the case, eviction order was not brought to the Court of law for seeking its assistance for execution. Therefore, provisions of Limitation Act does not come into operation, when Estate Officer himself is competent to execute its order. Under these circumstances, I find no
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force in the contentions of appellant on that score too.” (Emphasis supplied) 283. Mr. Patwalia, learned senior counsel for the defendant nos. 4 and 5 has also drawn this court's attention to a letter dated 17th July, 1993 in support of the private parties‟ claim of possession. This letter was purportedly addressed by Sh. S.R. Verma, Asstt. Engineer of the PWD Div. VII (DA) to Sh. Kewal Ram and Sh. Het Ram. The Asstt. Engineer of the PWD is stated to have written as follows:- “It is understood that the attached land as per plan attached between GTB hospital and Mental Hospital boundaries at the edge of Road No. 64 belongs to you. This matter has been discussed with you at site on 16.7.1993 and it agreed to provide ramps to the existing work of construction of the Government boundary wall has started. You are requested not to create any dispute in the way of the work. In case any legal benefit is demanded by you in respect of the attached land etc, this office does not have any objection. Please acknowledge the receipt of this letter and convey your consent at an early date.”
284. It is submitted that this communication tantamounts to an admission by the Government agency of their possession as well as ownership. A bare perusal of this communication would show that the same does not disclose any authority of an Asstt. Engineer to issue a letter of this nature. The letter makes a reference to the author‟s “understanding” that valuable land belongs to the addressees. The author had agreed to provide ramps to the existing
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path at three places and repeatedly refers to the subject land as being „your land‟. The Asstt. Engineer has stated that his office has no objection in case any legal benefit is demanded by the addressees in respect of the attached land etc. 285. The above narration of facts would show that the PWD was not the owner of the land. The source or basis of the stated “understanding” of the author of the letter is not disclosed. The authority of an Asstt. Engineer to allot or transfer ownership and possession of government land to any private person is not disclosed. From the tenor of the communication, it would appear that the basis of the letter is discussions with the addressees.
286. Such a communication would not legally bind even the PWD, unless the person relying on it could show authorization by the person issuing the same. So far as valuable immoveable property of the State is concerned, even approvals for allotment may be necessary. Ordinarily the jurisdiction of the PWD relates to execution of construction works and not land allotments. The magnanimity of the author of the letter and the dispensation portrayed therein is inexplicable. The private defendants give no reason or necessity for such a communication to be generated. Any statement by such Asstt. Engineer of the PWD would certainly have no concern with or bind the real owner of the property. It certainly cannot create legal right of the addressees in valuable Government
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land. The communication appears to be a self serving, procured document. Prima facie, such letter would not bind the present plaintiff to whom the land had been allotted and with whom it vested. 287. There is yet another important aspect of this case. It is noteworthy that apart from Het Ram and Kewal Ram, two more persons Inder Raj and Ganga Sahai had jointly filed the appeal, writ petition and letters patent appeal. Ganga Sahai and Inder Raj have not agitated any claim against the Government authorities or IHBAS after 1987. 288. The position of Het Ram is not much different. The order of eviction passed by the Estate Officer against him has also attained finality. Het Ram, Kewal Ram as well as Ganga Sahai and Inder Raj have accepted the judgment dated 10th April, 1980 of the Division Bench in the Letters Patent Appeal of this court which has attained finality. Execution proceedings stand undertaken.
289. Learned counsel for the plaintiff has drawn my attention to the pronouncement of the Supreme Court reported at (2000) 3 SCC 708 Roop Singh (Dead) Through Lrs. Vs. Ram Singh (Dead) Through Lrs. in support of the contention that even if it could be held that Het Ram and Kewal Ram had been in settled
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possession, however the same was insufficient to establish the claim of acquisition of title by adverse possession. 290. On the same issue, reliance has also been placed on the pronouncement of the Supreme Court reported at (1997) 2 SCC 203 Madhvakrishna & Anr. Vs. Chandra Bhaga & Ors., wherein the Supreme Court has held as follows :- “5. In this case, except repeating the title already set up but which was negative in the earlier suit, namely, that they had constructed the house jointly with Mansaram, there is no specific plea of disclaiming the title of the appellants from a particular date, the hostile assertion thereof and then of setting up adverse possession from a particular date to the knowledge of the appellants and of their acquiescence. Under these circumstances, unless the title is disclaimed and adverse possession with hostile title to that of the Mansaram and subsequently as against the appellant is pleaded and proved, the plea of adverse possession cannot be held proved. In this case, such a plea was not averred nor evidence has been adduced. The doctrine of adverse possession would arise only when the party has set up his own adverse title disclaiming the title of the plaintiff and established that he remained exclusively in possession to the knowledge of the appellant's title hostile to their title and that the appellant had acquiesced to the same." (underlining be me) 291. The legal position on this issue was summed by this court in Shahabuddin vs. State of UP (supra) in the following terms :- “32. When the property was a vacant land before the alleged construction has been put up, to show open and hostile possession which could alone in law constitutes adverse
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possession to the State, some concrete details of the date of absolute and exclusive occupation, nature of occupation with proof thereof would be absolutely necessary and a mere bald assertions cannot by themselves be a substitute for concrete proof required of open and hostile possession. The person claiming adverse possession as against the State must disclaim the State's title and plead this hostile claim to the knowledge of the State and that the State had not taken any action within the prescribed period. It is only in such circumstances that the possession would become adverse. The pleadings and proof have to be clear and cogent. (Ref. MANU/SC/0805/1995 : (1995)6SCC309 . R. Changevarappa v. State of Karnataka; MANU/SC/0766/1997 : AIR1997SC2930 D.L. D.N. Venkatarayappa and Anr. v. State of Karnataka and Ors. and MANU/SC/0348/2000 : (2000)5SCC652 entitled State of Rajasthan v. Harphool Singh (dead) the rough his LRs.) xxx 35. In the light of the above, it is apparent that both pleadings and the evidence has to be clear, unequivocal and specific as to on what date and even in which month the property was occupied and the date of the dispossession of the real owner. All questions relating to the date and nature of a person's possession whether the factum of his possession was known to the owner and the legal claimants and the duration for which such possession has continued and also the question whether the possession was open and undisturbed are all questions of facts and have to be asserted and proved. The attributes of adverse possession is that it begins with dissension or ouster of the owner. It remains an "inchoate" title or a growing title till expiration of the statutory period of its continuous open and hostile assertion and enjoyment. Before title of adverse possession is perfected, all presumptions and intendments are in favor of the real owner. Burden of proving adverse possession is a very heavy one. No court can take the plea of acquisition of title by adverse possession casually and it is settled law that much importance should not be attached to the mere evidence of witnesses who casually and cavalierly simple deposed that the land was in possession of somebody and/or another. Mere oral evidence may not be sufficient to substantiate a claim of adverse possession. The party who so pleads must
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show something more than that. In this behalf, reference may be made to the observations made in AIR 1921 Pat 234 entitled Gajadhar Prasad and Ors. v. Musamad Dulhin Gulab Kuer and Ors.” (Emphasis supplied) In so concluding reliance has been placed on the prior judgment of this court reported at 57 (1995) DLT 101 (para 23) Harbans Kaur & Ors. vs. Bhona Nath. 292. IHBAS filed an application in CS No. 47/2000 (now CS No.18/2005) seeking a direction to Het Ram not to interfere in the process of demarcation of the suit land. 293. Despite the observations of this court in CWP No. 2374/2001, Het Ram staunchly opposed the present plaintiff' prayer. As a result, the trial court by the order dated 21st April, 2005 in CS 47/2000 (18/2005) rejected the prayer of IHBAS for demarcation of the land with costs holding that IHBAS was adopting dilatory and delay tactics to delay proceedings. 294. Het Ram-defendant no.4 by his opposition thus has obstructed the demarcation proceedings which would have brought out the truth. The judgment and orders in favour of Het Ram or Kewal Ram would not be binding for this reason as well. (Ref: 182 (2011) DLT 597 (SC) Khatri Hotels P. Ltd. & Anr. vs. UOI & Anr.).
295. In support of the plea of title by adverse possession,
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reliance was placed by the present private defendants on the pronouncement of the Gujarat High Court reported at 1 (1999) CLT 569 Prabhat Bhai Shankar Bhai Parmar vs. Mahinbhai Nanabhai Panwar & Ors. which related to continuous possession which was open and hostile to the title of the real owner. 296. The pleadings which are necessary as well as the nature of evidence and the enquiry by the court which is essential to establish a claim of adverse possession have been authoritatively laid down by the Supreme Court in P.T. Munichikkanna Reddy (supra) placing reliance on the earlier pronouncement in AIR 1964 SC 1254 S.M. Karim vs. Bibi Sakina. The court in paras 31 and 32 in P.T. Munichikkanna held as follows :-
“31.Inquiry into the starting point of adverse possession i.e. dates as to when the paper owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other facts such as the manner in which the possession operationalized, nature of possession: whether open, continuous, uninterrupted or hostile possession - have not been disclosed. An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina : [1964]6SCR780:
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"
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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. 32. Also mention as to the real owner of the property must be specifically made in an adverse possession claim.” (Emphasis by me)
297. In Karnataka Board of Wakf v. Govt. of India : (2004) 10 SCC 779 , this Court observed as under: “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.”
The court further observed that 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
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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.
30. `Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Ors. : (2004)1SCC271 )
21. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa and Ors. v. Somalingappa and Anr. : 2006(8)SCALE624 . 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 title to the property claimed. The court further observed that 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 there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.” (Emphasis supplied)
298. Shri B.S. Chaudhary, learned ADJ while passing the judgment dated 8th of April, 1999 has relied on oral testimony of Kewal Ram and Het Ram with regard to continuity of their claimed possession. The judgment dated 8th April, 1999 fails to notice that the judgment dated 17th December, 1971 has recorded the plea of the DDA that on 7th May, 1965 possession of the suit land which was
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lying vacant and uncultivated stood taken by beat of drums on the spot. 299. Prima facie, that the private persons were not in possession is also manifested by the documents on record including the notification dated 10th August, 1965; as on 23rd December, 1965 as per para 12, 13 of the judgment dated 17th December, 1971; the official letters dated 23rd/28th October, 1987; 3rd November, 1987 & 5th December, 1987 which show that IHBAS was in possession; as well as from 23rd December, 1996 as per the judgment dated 4th April, 2009 in PPA 4/2008 by Dr. R.K. Yadav, ADJ. Despite a close reading of the pleadings and documents on record, I have been unable to find any material to show how or when, if at all, Kewal Ram and Het Ram were in exclusive occupation, let alone legal possession of the land at any point of time. The contesting private defendants make no disclosure on this aspect. There is no finding on this aspect in the judgment dated 8th April, 1999 relied upon by Het Ram and Kewal Ram. 300. The defendants have also nowhere pleaded any specific date or even the year in which their forefathers initially came into possession of the subject land in any document or pleadings.
It was for Het Ram and Kewal Ram to also show the date when they had come into “possession” of the suit property. No averment or evidence in this regard is available.
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301. Given the findings of the courts below, even if it could be held that Het Ram and Kewal had been in possession of the suit land, the same was not continuous. It was certainly not settled possession. Even assuming that their contention of having been in cultivatory possession of the property was to be accepted, the same was interrupted by the proceedings on 7th May, 1965 and 23rd December, 1996. These events are enough to defeat the 1998 claim of continuous possession of thirty years essential to support a claim of ownership by adverse possession.
302. Claims of adverse possession which have rested on non-participation in rent and taxes or on mere denial of the owner‟s title have been rejected in [1981] 1 SCR 863 Karbalai Begum v. Mohd. Sayeed and Anr; : [1995] 1 SCR 88 entitled Anu Sahed Bala Sahed v. Balwant @ Bala Saheb and in AIR 1995 SC 1789 entitled Vidaya Devi @ Vidya Vati v. Prem Parkash. 303. To establish a plea of title by adverse possession, it is also essential that the real owner does not object to such possession. On the other hand, the assertion of title by the real owner is evident from the eviction proceedings under the PPA Act right from 1969; the execution of the order of eviction on 27th October, 1987 by the Estate Officer; and the further actions of IHBAS noted hereinabove.
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These facts do not find consideration in the judgment dated 8th April, 1999. 304. It is manifest that under section 27 of the Limitation Act, the period of 12 years for which the person must assert a hostile title against the real owner and continuous, open possession, let alone the 30 year period against the State, in order to acquire title by prescription under the limitation statute. Neither of these periods, from the afore-noticed dates was over when Suit No.293/1998 or CS No.47/2000 (now renumbered 18/2005) were filed. It is noteworthy that the period of 30 years is not over even today. The judgment dated 8th April, 1999 is thus completely without any basis and contrary to law. 305. The above discussion shows that there was neither pleading nor evidence on any of the aspect of adverse possession in CS No.293/1998 before the court. All essentials to establish title by adverse possession were missing. In the light of the above discussion, the judgment dated 8th April, 1999 is contrary to all principles of law governing acquisition of title by adverse possession.
306. It is well settled that a judgment in a civil suit is inter partes and is not a judgment in rem. Given the claim of Het Ram
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and Kewal Ram against the defendants in Suit No. 293/1998, the claim of ownership by adverse possession can bind only the defendants in the said suit. The judgment dated 8th April, 1999 thus has to bind only the Union of India and the Land and Development Office who were the defendants in the suit (CS 298/1998). The judgment cannot bind IHBAS which was not a party to those proceedings. Het Ram-defendant nos. 4 also states this legal position in their written submissions dated 21st April, 2010 filed in the present case. 307. The facts placed before this court also do not render it possible for this court to hold these proceedings that Het Ram and Kewal Ram (or his successors) were in settled, exclusive, continuous, open and hostile possession of the suit land or any portion thereof or had ever asserted title of the property to support a finding that they had acquired title by adverse possession. XIII. Bar of Limitation
308. Mr. Arvind Nayar, learned counsel for Het Ram has contended that the present suit has been filed laying a challenge to the decree dated 8th of April, 1999 when the challenge to it by way of an appeal was barred by limitation. It has been objected by the defendants that the suit is barred by limitation. In this behalf,
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protracted reference to the plaintiff‟s knowledge of the decree dated 8th April, 1999 passed in the Suit No. 293/1998 has been made. It is contended that the present suit is not maintainable for this reason. 309. Mr. Sultan Singh, learned for the plaintiff and Mr. Sanjay Poddar, appearing for the defendant no. 1 have extensively urged that a challenge to a fraudulent judgment and decree can be made at any stage and at any time and such challenge would not be governed by the law of limitation. Several judgments relied upon in this regard have been cited. 310. Mr. Arvind Nayar, learned counsel has also emphatically urged that IHBAS is not a statutory authority or a legal authority and therefore the window of 30 years under Article 65 or the period under Article 111 or 112 for computation of the limitation for the relief of possession is not available to it. 311. In this regard, it is necessary to note that so far as title is concerned, it has never been disputed by Het Ram or Kewal Ram the land was owned by the government. All litigation was filed by them against government authorities. Het Ram and Kewal Ram have placed reliance on jamabandi which reflects the „Sarkar Daulat Madar‟ i.e. the government as the owner of the property. These persons had claimed to have acquired title by adverse possession on this basis.
312. It was the plea of Het Ram and Kewal Ram that they
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were tenants of the Government of India in this litigation and in the PP Act proceedings as well as the ground of appeal no.6 in LPA No.113/75. In the judgment dated 10th April, 1980 in LPA No. 113/1975, the Division Bench had confirmed the finding that the suit property was public premises. Het Ram has not been assailed by the judgment. 313. The private defendant has claimed that an application has been filed in Kewal Ram‟s appeal under the Public Premises Act, the decided RCA No. 19/1996 under the PP Act (arising out of proceeding, Kewal Ram had set up the plea of tenancy under the Government in this appeal. If the above position is correct, the claim of tenancy is pending even on date. Certainly, it does not lie in the mouth of Het Ram or the legal heirs of Kewal Ram to urge that the subject land is not government property or that the window of 30 years for the purposes of asserting adverse possession is not available.
314. By the notification dated 22nd December, 1993, the management of the Hospital for Mental Diseases, Shahdara was transferred to IHBAS, the present plaintiff. IHBAS is run purely on grant in aid of the Central Government and the Government of NCT of Delhi. Perusal of the structure of the joint body of IHBAS as contained in its bye-laws would show that IHBAS is headed by the Lieutenant Governor of Delhi as its President and the General Body
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consists of senior government officials etc. Prima facie the contention that the window of 30 years is not available to the plaintiff is devoid of merit. 315. Learned counsel for the plaintiff has urged that looked at from any angle, the suit claim is not barred by limitation. It has been submitted that it is the plaintiff‟s case that it is in possession of the subject property and the suit has been necessitated because of the constant efforts of the defendants to trespass on the property. In this regard, reliance has been placed on the pronouncement of the Supreme Court reported at (2000) 1 SCC 586 Lata Construction; (1997) 1 SCC 99 Bengal Waterproof Ltd. Vs. Bombay Waterproof Manufactuirng and (2006) 3 SCC 605 N. Khosla vs. Rajya Lakshmi.
316. So far as the aspect of delay is concerned, Mr. Sultan Singh, learned counsel for the plaintiff and Mr. Sanjay Poddar have also placed reliance on the pronouncements of the Supreme Court reported at 2008 (3) SCALE 556 Ganpatibhai Mahijibhai Solanki vs. State of Gujarat and Ors. (G-XII) In this case, the court was concerned with the delay of 2205 days in filing a review petition and the effect thereon of suppression of a material fact resulting in the passing of the decree. The order of the High Court condoning this delay was assailed before the Supreme Court. The respondents before the Supreme Court have asserted that the
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appellant had committed fraud on the court as it had suppressed earlier orders which had attained finality. In this regard, the court observed as follows:- “12. We are not oblivious of the fact that the authorities of the State have made a complete goof up with the situation. By its action, it allowed subsequent events to happen, viz. sales of the lands have taken up, constructions have come up, but the question which arises for our consideration is as to whether even in such a situation, this Court would allow a suppression of fact to prevail. It is now a well settled principle that fraud vitiates all solemn acts. If an order is obtained by reason of commission of fraud, even the principles of natural justice are not required to be complied with for setting aside the same. In T. Vijendradas and Anr. v. M. Subramanian and Ors., AIR2008SC563 , this Court held;
21. ...When a fraud is practiced on a court, the same is rendered a nullity. In a case of nullity, even the principles of natural justice are not required to be complied with. [Kendriya Vidyalaya Sangathan and Ors. v. Ajay Kumar Das and Ors. : (2002)IILLJ1057SC & A. Umarani v. Registrar, Cooperative societies and Ors. : (2004)IIILLJ780SC ] 22. Once it is held that by reason of commission of a fraud, a decree is rendered to be void rendering all subsequent proceedings taken pursuant thereto also nullity, in our opinion, it would be wholly inequitable to confer a benefit on a party, who is a beneficiary thereunder.... 13. The object and purport of a statute must be given effect to. If there is a conflicting interest, the Court may adjust equities but under no circumstance it should refuse to consider the merit of the matter, when its attention is drawn that suppression of material facts has taken place or commission of fraud on Court has been committed.
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The courts, for the aforementioned purpose may have to consider the respective rights of the parties. The State has a constitutional duty/obligation to comply with the principle of social justice as adumberated under Section 23 of the Act and take the decision to their logical conclusion. xxx 15. In the matter of passing an order of condonation of delay, we may notice that the Court of Appeal in Smith v. Kvaerner Cementation Foundations Ltd (Bar Council intervening) 2006 3 All ER 593 condoned the delay on the ground that the appellant therein had a human right to get his lis adjudicated before an independent and impartial tribunal and as the Judge was biased, delay in preferring the appeal was condoned stating; xxx” 317. Mr. Sultan Singh learned counsel has placed reliance on the pronouncement reported at (2001) 7 SCC 749 Pallav Seth vs. Custodian Ors. and submitted that the judgment relied upon by the defendant nos. 4 & 5 was obtained by fraud and concealment and therefore the plaintiff cannot be penalized for failing to adopt legal proceedings when facts and material necessary for allowing the challenge have been willfully concealed by the plaintiff. In this behalf, reliance has been placed on para 47 of the judgment wherein the Supreme Court held as follows :-
“47. Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent (Section
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17(1)(b)) or where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him (Section 17(1)(d)), the period of limitation shall not begin to run until the Plaintiff or Applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the Plaintiff or the Applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity, viz, that a party should not be penalised for failing to adopt legal proceedings when the facts or material necessary for him to do so have been wilfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favour by virtue of such fraud.” 318. In (2004) 7 SCC 541 Ramaiar vs. N. Narayan Reddy [Dead] by LRs., the court observed that the plaintiff cannot invoke applicability of Article 65 of the Limitation Act having suppressed material facts. The court reiterated the principle that the issue as to whether Article 63 or 65 of the said Act would apply to a particular case has to be decided by reference to pleadings and the plaintiff cannot be allowed by skillful pleading to avoid an inconvenient article in the Limitation Act.
319. A claim based on the decree of 8th April, 1999 (in Suit No. 293/1998) has been asserted against IHBAS, for the first time by Het Ram alone when he filed the Suit No. 47/2000. A specific plea on the bindingness of the decree dated 8th April, 1999 has been asserted in the plaint in Suit No. 47/2000 against IHBAS. IHBAS was
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not a party in the litigation where the decree had been passed while the party which had been impleaded as a defendant had denied right or interest in the property. 320. IHBAS has claimed knowledge of the passing of the said decree in 1999. It thereafter filed the three applications as noted above one of which stood dismissed. 321. At this stage and in this background, the present suit was filed on or about 21st April, 2006 by the plaintiff against the Government of NCT of Delhi, DDA, Land & Development Office as defendant nos. 1, 2 and 3 and against Het Ram (defendant no. 4) as well as Kewal Ram (deceased through his legal heirs defendant no. 5 (i), (ii), (iii)). 322. The plaintiff has consistently been asserting that the decree is fraudulent and void and does not bind it. This was the plea in its applications filed in 1999 in Suit No. 293/1998 and elsewhere. It has been pointed out that this very plea has been urged as the defence to the pending Suit No. 47/2000 filed by Sh. Het Ram.
323. In the given facts, the date of passing of the decree or knowledge of the same would not be determinative of the commencement of the limitation for the first prayer in the suit to the effect that the decree dated 8th April, 1999 be declared to be fraudulent.
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324. IHBAS was not impleaded as a party in CS No.293/1998. In the written statement filed in present suit, amongst the legal pleas, Het Ram and Kiran Chand have assailed the maintainability of the suit. In para 2.4, Het Ram has pleaded that the judgment dated 8th April, 1999 was in personam and the plaintiff who was not a party to the suit could simply ignore the judgment and decree without incurring any inability or incapacity; the suit is barred by limitation as well as under section 34 of the Specific Relief Act; having sought declaration, no relief of possession has been sought. 325. IHBAS challenges to the decree dated 8th of April, 1999 is premised on grounds of fraud. The Supreme Court has held that a decree obtained by fraud is a nullity and nonest and would not bind any court. It has also been held that the same can be challenged in collateral proceedings at any stage. 326. On each occasion that the private defendants relied on the judgment and decree, a fresh cause of action for laying a challenge to the decree obtained by practicing fraud, would have arisen in favour of IHBAS and against the defendants. 327. It is important to note that a void decree would not be rendered legal merely by passage of time. A decree which is void and non est remains so, even if not challenged. A concession by the other party cannot lend legality or bindingness to such judgment.
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328. In the given facts, the plaintiff therefore is not required to specifically seek a declaration to this effect. The plaintiff could have stopped at laying the factual matrix and its objections to the decree dated 8th of April, 1999 without seeking a specific declaratory decree. IHBAS could have sought only the remaining prayers in the plaint. The contesting defendants would have disputed the plaintiffs contentions. Adjudication on the effect and bindingness of the decree dated 8th April, 1999 would as a result be inherent in the adjudication of the other prayers and entitlement of the plaintiff to a judgment. The prayer made by Het Ram in Suit No.47/2000 in fact tantamounts to a prayer for execution of a fraudulent decree. 329. Suit No. 47/2000 has been filed by Het Ram alone after 21st February, 2000 (when PPA No.4/2008 was dismissed in default) and before 8th April, 2000 when it (PPA No.4/2008) was dismissed on merits who has set up a claim against IHBAS solely premised on this decree. Kewal Ram (or his legal heirs) are not parties in S. No.47/2000. 330. Het Ram and during his life, Kewal Ram persistently made efforts, physical and legal to acquire, by any measure and prescription, right, title and interest over the subject land.
331. This objection may be examined from another angle. The plaintiff has claimed to be in possession of the suit premises which is being challenged by the contesting defendants. In the present suit,
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apart from the prayer with regard to the challenge to the decree in question, the plaintiff has made other prayers for injunctions and directions in the plaint. A specific prayer for prohibiting the private defendants from trespassing and wasting the suit land has been made. The decrees prayer for a decree of permanent injunctions sought in respect of this land based on the plaintiff‟s averments that the private defendants are trying or may try to encroach upon the land, are certainly not beyond limitation nor are the other reliefs. Of course, the question as to whether the plaintiff is entitled to the decrees which have been sought would require to be considered after the parties have led evidence thereon. 332. Even assuming that it could be held that the challenge laid by the plaintiff to the decree of 2000 is barred by limitation, the other prayers in the suit would survive. 333. For all these reasons, the bar of limitation premised on the date of the passing of the decree under challenge on 8th April, 1999 in Suit No. 293/1998 by Het Ram is misconceived and not made out.
334. The parties to Suit No.47/2000 (now 18/2005) are parties before this court. It also cannot be denied that the suit property is extremely valuable. So far as evidence recorded in the earlier suit is concerned, appropriate orders with regard to reading of the said evidence in the present suit can be made.
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335. The relief of injunction is a discretionary and equitable relief. It is trite that a person claiming entitlement to a relief has to establish a subsisting legal right and entitlement to the same. Such a right has to be independently established. It cannot rest on the pleas or case set up by a defendant. In other words, a trespasser cannot say that the other side has no right to the land and, therefore, he (the trespasser) is entitled to protection of his possession. A person who as a plaintiff, claims a relief in equity, has not only to establish his bonafide and that he is before a court with clean hands but, more importantly, that he has a legal right to the relief. It is also well settled that when a person invokes discretionary jurisdiction, the court would decline relief to a person has not approached it with clean hands as the grant of relief would defeat the interests of justice. XIV. Overriding concerns of public interest
336. It is important to note the present plaintiff‟s reliance on proceedings in Civil Writ Petition No. 2374/2001 a PIL, which include the order dated 7th January, 2004 passed by the Division Bench of this court. My attention has been drawn to the order dated 23rd October, 2002 of this court taking serious note against IHBAS and MCD for causing delay in construction of the hospital for mental diseases by nine years and the
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direction by the court to complete the construction of the building within 18 months from 23rd October, 2002. 337. So far as the rights of IHBAS are concerned, the notification and the possession report placed on record would show that the land stands allotted to IHBAS which has legal right, title and interest in the subject land. The note on the public notification shows that the hospital was put in possession of the land. 338. It has been authoritatively held in a catena of authoritative and binding judicial precedents that wider public interest is liable to be borne in mind while exercising the power of issuing a prohibitory order and granting a stay and injunction. 339. There is no dispute that there is genuine need for such like institutions in Delhi. Such a purpose must necessarily prevail over private interest of persons who are attempting to purportedly encroach upon the land in question. 340. It is noteworthy that where a challenge was laid to the taking of possession on completion of acquisition by the beneficiary of the acquisition proceedings, in 2003(70) DRJ 721 Nagin Chand Godha vs. Union of India and others the Division Bench of this Court held thus:-
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“10. ............................. Suffice it so say that after symbolic possession is taken, if the petitioner is enjoying the possession, he is enjoying the possession as a trustee on behalf of the public at large and that by itself cannot be considered to be a ground to contend that possession is not taken. It is the duty of the person who is occupying the property to look after the property and to see that the property is not defaced or devalued by himself or by others. He cannot subsequently come to the Court to say that actual possession is not taken and therefore he should be protected and land be denotified.” Such was the legal principle laid down when owners challenged the factum of possession having been taken pursuant acquisition. 341. Even if it were to be found that a person had some kind of a right, it has been held by the Supreme Court that such individual right has to give way to overriding interests of the public at large. In this behalf, in (1997) 1 SCC 134 entitled Ramniklal N. Bhutta and another vs. State of Maharashtra and others, the Court held thus:-
“10. ……..Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interest of justice and the public interest coalesce. They are very often one and the
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same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 --- indeed any of their discretionary powers.” (Underlining supplied) 342. With regard to the delays which result in execution of public projects on account of prohibitory writs and interim orders of injunction, it would be useful to advert to the observations of the Supreme Court in a public interest litigation where a challenge was laid to the grant of a tender for components of a public project relating to a thermal power station. In the pronouncement reported at 1999 (1) SCC 492 entitled Raunaq International Limited vs. IVR Constructions Limited and others, the court has held that the considerations which apply to the main proceedings must weigh with the court while considering interim orders. In para 18, 24 and 25, it was held by the court that:-
“The same considerations must weigh with the court when interim orders are passed in such petitions. The party at whose instance interim orders are obtained has to be made accountable for the consequences of the interim order. The interim order could delay the project, jettison finely worked financial arrangements and escalate costs. Hence the petitioner asking for interim orders in appropriate cases should be asked to provide security for any increase in cost as a result of such delay or any damages suffered by the opposite party in consequence of an interim order. Otherwise public detriment may outweigh public benefit in
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granting such interim orders. Stay order or injunction order, if issued, must be moulded to provide for restitution. xxx
24. Dealing with interim orders, this Court observed in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors., MANU/SC/0169/1984 : 1985ECR4(SC) that an interim order should not be granted without considering balance of convenience, the public interest involved and the financial impact of an interim order. Similarly, in Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors., MANU/SC/0279/1997 : AIR1997SC1236 , the Court said that while granting a Stay the court should arrive at a proper balancing of competing interests and grant a Stay only when there is an overwhelming public interest in granting it, as against the public detriment which may be caused by granting a Stay. Therefore, in granting an Injunction or Stay order against the award of a contract by the Government or a Government agency, the court has to satisfy itself that the public interest in holding up the project far outweighs the public interest in carrying it out within a reasonable time. The court must also take into account the cost involved in staying the project and whether the public would stand to benefit by incurring such cost. 25. Therefore, when such a Stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding further, must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. The public must be compensated both for the delay in implementation of the project and the cost escalation resulting from such delay. Unless an adequate provision is made for this in the interim order, the interim order may prove counter-productive.”
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343. In yet another matter at JT 1994(6) SC 585 entitled Premji Ratansey Shah and others vs. Union of India and others expressing anguish for the delay which ensued on account of injunctions being granted at the instance of persons who ultimately may be held to be without any legal right or entitlement to the same, the Court observed thus:- “4. ..................................... The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence, cannot be protected by injunction. 5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse of claim injunction against true owner.” (Emphasis supplied)
344. IHBAS prima facie has abiding right, title and interest in the property as owner. The above discussion would show that Het
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Ram and late Kewal Ram have not placed any material of exclusive occupation. They had at best attempted trespass on open public land and were never able to complete the trespass. They were never in settled possession of the property which could be held entitled to protection These persons could not even show occupancy on any particular date, let alone an enforceable right to protection thereof. The doctrine that possession follows title is clearly applicable to the present case. 345. The land in the instant case is owned by IHBAS which has taken over the Hospital for Mental Diseases. The plaintiff has placed before this court, orders of the Supreme Court of India as well as the Division Bench of this court with regard to the dire need of adequate facilities for the persons suffering from mental diseases. The efforts of the plaintiff to expand facilities, wholly in public interest, have been thwarted by the fraudulent acts of the private defendants which have been detailed hereinabove. 346. On this aspect, reference may usefully be made to a pronouncement of this court reported at 54 (1994) DLT 484 Rajender Kakkar vs. DDA wherein this court held as follows:-
“9. …..Time has now come where the society and the law abiding citizens are being held to ransom by persons who have no respect of law. The wheels of justice grind slowly and the violators of law are seeking to the advantage of the laws delays. That is why they insist on the letter of the law being
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complied with by the Respondents while at the same time showing their complete contempt for the laws themselves. Should there not be a change in the judicial approach or thinking when dealing with such problems which have increased in recent years viz., large scale encroachment on public land and unauthorized construction thereon, most of which could not have taken place without such encroachers getting blessing or tacit approval from the powers that be including the municipal or the local employees. Should the courts give protection to violators of the law? The answer in our opinion must be in negative. Time has come when the courts have to be satisfied, before they interfere with the action taken or proposed to be taken by the governmental authorities qua removal of encroachment or sealing or demolishing unauthorized construction specially when such construction like the present, is commercial in nature.” 347. The above discussion would show that there is no contest to the suit by defendant nos. 2 and 3. Even if it were assumed that defendant no.5(i) has filed a written statement, however, there is a clear finding in the judgment dated 4th April, 2009 of Dr. R.K. Yadav, learned Additional District Judge to the effect that Kewal Ram was not in possession of the subject land or any portion of the land. Kewal Ram or his heirs have not joined Het Ram in filing Suit No.47/2000. Therefore, the proceedings and the orders passed therein have no concern at all so far as defendant nos.5 (i) to (iii) are concerned. 348. It is well settled that re-agitation or re-litigation is an abuse of the process of the court. (Ref: 1998(3) SCC 573 K.K.Modi vs. K.N. Modi).
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349. By way of IA No.4518/2006, the plaintiff has prayed for interim orders against the defendants from causing any further wrongful interference in the peaceful possession of the suit property and also to restrain them from creating third party interest by sale, loss or damage, trespassing, demolishing, additions, alterations, construction and eviction on the suit property. 350. A prayer is also made for restraining defendant nos.1 to 3 from executing any deed or documents creating right, title or interest in the suit property in favour of defendant no.4 and legal heirs of defendant no.5 or any other third party. Whether the prior judgment and orders could impede grant of relief to the plaintiff on the present application. 351. The present discussion would be incomplete without examining an important aspect of the matter. Het Ram has placed reliance on judicial orders passed in prior proceedings. The directions which this court could consider passing, require examination of the impact of the judicial orders noticed hereinabove. This consideration may be summed up as follows: - (a) Order dated 5th of May, 1989 in the execution (probably filed in 1982)
(i). In support of the plea that cultivation was going on, Het Ram has enclosed copy of an order dated 5th May, 1989 passed in an execution petition filed by Het Ram against the Union of India etc
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wherein the court noticed the submission of Het Ram in the following terms:- “An order Dated 5th May, 1989 was passed wherein it was stated that a decree was passed against the respondent no.1 but the respondent no.3 on 28th April, 1982 started interfering with the lawful possession of agricultural land of the petitioner and digging the land and throwing the earth on his field and also found his field with wire due to which he is unable to cultivate on his field and the respondents have not stopped interfering the DH despite his protect. The D.H./applicant has, therefore, filed the present application praying for enforcement of the decree in the manner, it was passed and to direct the respondents, not to interfere in his possession of the land and also not to put further earth on or to dig the land or to put any fence on the land of the petitioner”. The order dated 5/5/89 further records that :- “2. The respondents have filed their reply in which they have denied that the respondents have dug the earth of the D.H. and to put any fence on the land of the D.H. and have submitted that whatever work was done by them is in another land which does not pertain to the D.H./applicant. 3. The learned counsel for the D.H./applicant has also submitted that the work which is being done by the respondents is on another land. As, the respondents, have not admitted that they have dug the land of the D.H. or put the fence on the land nor there is no evidence on record. Hence, the D.H. is allowed to remove the earth and the fence and get it levelled and to make it fit for his agriculture at his own cost in terms of the decree passed by this court. The application of the D.H./applicant stands disposed of accordingly. Case file be consigned to record room.”
(ii) The order dated 5th May, 1989 thus permitted Het Ram to remove the earth and the fence and get “it levelled” and to make it fit for agriculture at his own cost in terms of the decree passed by
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this court. It is impossible to discern which is the land under reference. (iii) It is also important to note that there is nothing placed before this court that any steps were taken pursuant to this order by Het Ram. (b) Orders in CS No.47/2000 and proceedings arising therefrom (i) An ex-parte order dated 8th April, 2000 was passed (in Suit No.47/2000) by Shri B.S. Choudhary, ADJ restraining the defendants from interfering with the possession of the plaintiff or from causing obstruction in the ingress and egress of the plaintiff(Het Ram) “in land Khasra Nos.317/15/12/12/1-22 min and 317/17/21/10/11min in village Tahrpur.”
(ii) As noticed above, Het Ram‟s application u/o 39 R.1 & 2 was disposed of by the order dated 12th August, 2000 directing parties to maintain status quo. It was also directed that Het Ram also will not interfere into the constructed portion of the defendant (IHBAS). It was directed that Het Ram shall be allowed to enter into the suit property in the portion which according to the revenue record was with Het Ram. It was also observed that the „whole land‟ is undivided and the concerned police was directed to ensure that the order was complied with. Het Ram was also prohibited from
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interfering with the constructed portion with IHBAS. Unfortunately the order is completely silent on the question of what or where is the “suit land”; and the “while land” mentioned in the order. (c) Orders in FAO 391/2005 It is noteworthy that the trial court order with regard to ingress and egress was protected by this court by the order dated 13th October, 2004 (corrected on 15th October, 2004) passed in FAO No. 391/2000 entitled IHBAS vs. Het Ram; the order dated 12th August, 2000 was extended till disposal of the suit by the order dated 11th February, 2005 in FAO 391/2005. But the above discussion would show that the location of the land is not known. There is no discussion at all or a prima facie finding on right, title or interest of Het Ram to any portion of the land; no explanation as to why the defendants in the earlier litigation were not party in this case. (d) Orders in Cont. Cas. No.769/2004 This case was disposed of by the order dated 11th December, 2006 holding that the parties are bound by the terms of the injunction issued on 12th August, 2000.
352. Mr. Arvind Nayar, learned counsel has drawn my attention to the order dated 12th August, 2000 passed by Shri B.S.
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Chaudhary, the learned Additional District Judge which has been simply continued in all the above cases. This order also makes very interesting reading. In para 7 of the order, the learned Additional District Judge noted that “the entries is the Revenue Record is showing the possession of the plaintiff being “Kabza-Najayaz”. May be that “Kabza-Najayaz” shows unauthorized occupation upon a particular suit land and then, it is to be confirmed as to whether the possession of the plaintiff had ripened into ownership by way of adverse possession by the time the proceedings of ejectment were initially against him. I don‟t think all these aspects can be looked into at this juncture particularly for the reasons that the relevant documents are yet to be summoned and proved on the record.”
353. On the issue of title, Shri B.S. Chaudhary, ADJ further recorded that “it is matter of trial as to whether the defendant has really been dispossessed and also according to the law or not. Another question which requires consideration during the trial is as to whether the hostile title of the plaintiff had ripened into ownership by that time when the proceedings of ejectment were started against him or not which “point in issue” can be decided only during the trial.” It is noteworthy that neither Het Ram nor Kewal Ram have set up such a case. Further, if the applicant is not in possession, where is the occasion to pass an injunction in its favour. On the issue of possession, the learned judge relies upon
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the judgment of the year 1971. He fails to notice that the judgment passed on 17th December, 1971 in these suits would merge in the judgments passed thereafter against Het Ram and Kewal Ram, which include the eviction orders, and the judgments in appeal, writ proceeding and the Letters Patent Appeal to the Division Bench as well as the specific order dated 4th of April, 2009 by Dr. R.K. Yadav, ADJ. 354. Interestingly, in the context of the averments in para 1 of the plaint in CS No.47/2000, there is no clarity with regard to the land in respect of which the injunction order dated 12th of August, 2000 has been passed. The same is clearly an attempt to grab land over which Het Ram does not have possession. The same does not appear to have crystallized. 355. It is well settled that an order of the court has to be confined to the substantial claim made by the plaintiff in the suit and nothing beyond. Het Ram obviously cannot lay or maintain with regard to a claim with regard to land over which Kewal Ram had asserted a claim. The land in the suit or “suit land” or “whole land” referred in the plaint or the order has to be confined to the said land over which Het Ram had laid a claim and nothing beyond.
356. By the order dated 12th of August, 2000, Het Ram was also prohibited from interfering in the constructed portion of the defendant since the defendant therein (IHBAS) is government/public
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institution, so the partly constructed portion in the land in dispute may be kept intact. It is unfortunate that such vague directions are made without describing what is the suit land or the construction and an injunction order is based referring to “suit land” and “whole land” without any clarity. This order has been continued in the appeal and the contempt proceedings. 357. The above narration would show that till date, in effect Het Ram has only been permitted ingress and egress to the “suit land” that is to say, the land which is the subject matter of Suit No.47/2000) and “shown in the revenue record” without any clarity about the land. There is no finding at all by any court that he is cultivating any land in any manner till date. There is no material in these proceedings even to show cultivation at any point of time. On the contrary, his primary prayer for directions to the police to facilitate cultivation has not been granted by the order dated 1st May, 2000. Interestingly, Het Ram and Kewal Ram have laid no challenge to any of the findings noticed hereinabove nor challenged the same.
358. The above discussion would show that it is not clear even to Het Ram as to where is the location of the land over which he claims possession let alone cultivation. There is also no order or
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finding to this effect in any of the orders relied upon by Het Ram which could bind the adjudication on the present application. 359. It is trite that an order of injunction must relate to a specific and identified plot of land. Given the cloud over the actual land to which Het Ram laid a claim, the doubts over its physical location; the interim orders dated 12th August, 2000 as well as the order dated 11th December, 2008 in Contempt Case No.769/2004 or in the appeal cannot be worked. In fact, Het Ram as noticed above, has made a concerted misrepresentation manifesting his intention of grabbing land in respect of which Kewal Ram had earlier laid a claim by devious pleadings and concealment. The judgment and decree dated 8th April, 1999 has been held to be an outcome of the fraud as well as nullity and non est in law. A prima facie finding has been returned that Het Ram and Kewal Ram (nor any other person on their behalf) are in possession or cultivating any portion of the suit land. Therefore, the previous litigation or the judgment and orders passed therein cannot impact the present consideration.
360. On application of the principle laid down in Ramniklal N. Bhutta (supra), given the above circumstances, the damage to the public interest on account of inability of the hospital to complete its expansion is irreversible. This can brook no further delay at all. It needs no elaboration that the event that the plaintiff fails to
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establish its claim or Het Ram succeeds in CS No.47/2000 (18/2005), the final relief can be normally moulded by directing restitution and calling upon IHBAS to remove any alteration or construction carried on by it during the pendency of the suit. 361. It has been vehemently urged by the plaintiff that Het Ram‟s suit for injunction is not maintainable. It is urged that no injunction can be issued in law against the real owner. In this behalf, reliance is placed on the pronouncement of the Supreme Court in AIR 2004 SC 1801 Sopan Sukhdeo Sable and Ors. vs. Assistant Charity Commissioner. In this case, the court observed that though a trespasser could seek restoration of possession on the ground that he had been illegally dispossessed by real owner, however he was not entitled to any injunction against the real owner. 362. Placing reliance on the pronouncement reported at (1994) 5 SCC 54 Premji Ratan Shah vs. UOI and 94 (2001) DLT 254 Madho Prasad vs. Ram Krishan, it is urged that no order of injunction can be made in favour of trespasser. This issue would be considered at the time of adjudication in the suit.
363. It has been found that Het Ram & Kewal Ram were never in legal possession of the land. In view of the principles noticed
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hereinabove, Het Ram and Kewal Ram would not be entitled to injunction against the real owner. 364. In view of the above discussion, the plaintiff has made out a prima facie case for grant of ad interim injunction. Balance of convenience is in favour of the plaintiff. Grave and irreparable loss and damage shall enure not only to the plaintiff but to the wider public at large which would be utilising the services available in the mental hospital which are certainly in short supply in the suit. Balance of convenience and interests of justice are also in favour of the plaintiff and against the defendants. It is made clear that only a prima facie view in the matter has been taken. Final adjudication has to rest on the result of the evidence which shall be placed before this court. 365. In view of the above, it is directed as follows:- (i) The defendants, their representatives, agents shall stand restrained from interfering in the possession of the suit property as well as from creating any third party interest by sale, loss or damage, trespassing, demolition, additions, alterations, constructions and erections on the suit property;
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(ii) The defendant nos. 1 to 3 shall stand restrained from executing any document in respect of the suit land in favour of defendant no.4 and legal heirs of defendant no. 5 or any other third party. (iii) In the event that the plaintiff raises any construction on the suit land or alters the nature of the suit property in any manner during the pendency of the suit, it shall not be entitled to claim any equity in respect thereof and appropriate orders of restitution may be passed. (iv) The plaintiff shall place on record photographs of the suit property in order to enable effective order to be passed at the stage of restitution. (v) This application is allowed in the above terms. IA No.8011/2006 366. This application has been filed by the plaintiff praying for stay of the proceedings in Suit No.18/2005 (earlier Suit No.47/2000) which was filed by Het Ram against the present plaintiff in the Tis Hazari Courts. It has been averred that the suit was transferred to the District Courts at Karkardooma and renumbered as CS No.18/2005. As on 20th July,2006 when the present application was filed, the suit was pending in the court of Shri Rakesh Kumar, Civil Judge, Karkardooma Courts, Delhi.
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367. For the purposes of adjudication upon the present case, the detailed factual narration set out hereinabove is relied upon. 368. So far as Suit No.47/2000 is concerned, the prayer premised on the judgment and decree dated 8th April, 1999 passed in Suit No.293/98 is as follows:- “(1) decree the suit for permanent injunction and thereby permanently restrain the defendants, their officers, employees, servants, agents etc from interfering in the peaceful cultivatory possession of the plaintiff over the suit land comprised in Khasra Nos.317/17/15/12/13/18/14/22 min and 317/17/21/10/11 situated in village Jhilmil Tahirpur, Shahdara, Delhi as shown in the site plan; (2) decree the suit for mandatory injunction and thereby direct the defendants not to obstruct the ingress and egress of the plaintiff, hi,s agents, servants, employees and others visiting the plaintiff over the suit land as shown in the site plan and direct the defendants to return and restore generator, cultivator, other agricultural implements and tubewell which have been stolen in the back of the plaintiff; (3) any other relief or reliefs as this court may deem fit and proper; (4) award costs.” In substance, Het Ram really seeks execution of the said judgment dated 8th of April, 1999. 369. IHBAS, the plaintiff herein has asserted substantive rights and interest and title in the property.
370. A view has been taken in the order recorded on IA No.4518/2006 that the said judgment and decree is not binding
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inasmuch as the same has been obtained by practice of fraud against a person who was not the real owner of the property. 371. The above narration makes it amply clear that the land claimed by Het Ram in Suit No.47/2000 is the subject matter of the present case. Het Ram is also a party in the instant suit. The issues in the previous suits are directly and substantially in issue in the first suit. The present suit, which is the subsequent suit, is also wider in its scope and also impacts the issues raised in both the suits. It is evident that the adjudication of the two cases would result in saving unnecessary costs and expenses to all parties. It also appears that the parties would be relying on the same evidence in support of their contentions in both the suits. 372. The pendency of two separate suits would results in multiplicity of adjudication on the same issues as well as delay in justice. It may result in conflict of judgments. 373. The prayer for stay of the proceedings in Suit No.18/2005 (earlier Suit No.47/2000) Het Ram vs. The Institute of Human Behavior And Allied Sciences rested on the challenge by the plaintiff herein to the legality and validity of the judgment and decree dated 8th April, 1999 in Suit No.293/1998 which is relied upon by Het Ram in the suit filed by him.
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374. An alternative prayer under Section 24 of the CPC for transfer of proceedings in the said Suit No.18/2005 (earlier Suit No.47/2000) has also been taken and that further proceedings be taken with the proceedings in the present case. 375. Given the scope of the adjudication in the present suit, it is in the interests of justice that an order transferring the said suit for being tried with the present case be made. It is trite that the jurisdiction to apply such technique vests in the court ex debito justicio. Such orders are made in exercise of inherent powers of the court in such circumstances. 376. In (2003) 1 SCC 488 Abdul Rahman vs. Prasony Bai & Anr., the court held that the High Court has the requisite jurisdiction to even suo motto withdraw a suit to its file and adjudicate itself all or any of the issues involved therein.
377. It is equally well settled that the court has the power to direct consolidation of two suits largely depending upon identity of the subject matter and convenience in proceedings of the trial, having regard to the nature of the evidence which is to be led in the suits and the controversies which arise for trial in the two suits. (Ref: AIR 1987 Allahabad 335 Mohd. Yusuf vs. Ahmad Miya & Ors.; Decision dated 12th January, 1983 in Suit No.722 and 723/81 The Laxmi Commercial Bank Ltd. Vs. M/s Interade
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Advertising (P) Ltd.; AIR 1981 Delhi 251 Bharat Nidhi Ltd., Delhi vs. Shital prsad Jain; (2004) 3 SCC 85 Chitivalasa Jute Mills vs. Jaypee Rewa Cement). 378. In AIR 1960 Allahabad 184 P.P. Gupta vs. East Asiatic Co. Bombay, the Court held that even Section 10 CPC is not a bar to an order of consolidation of suits and that Section 10 of the CPC would not apply to the simultaneous hearing of a later and an earlier suit, after consolidation of the two, if the matter in issue in both is directly and substantially the same. It was specifically held that Section 10 was not intended to take away the inherent power of the court to consolidate in the interest of justice in appropriate cases. 379. In this regard, reference may be made to a judgment by HMJ R.C. Lahoti, (as his Lordship then was) reported at 67 (1997) DLT 189 S.C. Jain vs. Bindeshwari Devi. In this case, the court in para 18 has observed as follows :-
“18. The jurisdiction to consolidate the suits can be exercised by the court only when the two suits are before it. If the suits be pending before different courts and a party may be desirous of seeking consolidation then its appropriate remedy is to move the High Court or the District Court, as the case may be, for transferring the two suits in one court. The High Court or the District Court may exercise its power of transfer if satisfied of the necessity of doing so-to avoid multiplicity of the trial of the same issues and conflicting decisions (see AIR 1960
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Ker 199 District Collector Kozhikode vs. Karela Verma Civil Thampuran).” 380. Mr. Sultan Singh, learned counsel for the plaintiff has urged that the decree dated 8th April, 1999 was passed by Shri B.S. Chaudhary, Additional District Judge. Suit No. 47/2000 was filed by Het Ram-defendant no. 4 was originally listed before the same Additional District Judge who passed the interim orders on 8th April, 2000 confirmed on 12th August, 2000. However, on account of amendment of the pecuniary jurisdiction, the case is pending before a learned Civil Judge who is lower in the hierarchy of courts and therefore may consider himself bound by the judgment and decree dated 8th April, 1999. This submission is also not without substance. 381. The land in question is an open piece of land. There is no evidence at all of inclusive occupation let alone possession of Het Ram on any particular portion of land. Casual unnoticed user of open piece of land or intrusion thereon too cannot be considered as exclusive possession of the land conferring any right over the land in the person using it. It is an admitted fact that the government authorities were the owner of the land. There is no challenge to the public notifications allotting the same to IHBAS. As a result, the doctrine that possession would follow title has to be applied.
382. In view of the above, in the given facts and circumstances, I am satisfied that the interest of justice merit that
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CS No.18/2005 (earlier Suit No.47/2000) Het Ram vs. The Institute of Human Behavior And Allied Sciences be withdrawn from the trial court. 383. It is accordingly directed as follows :- (i) CS No.18/2005 (earlier Suit No.47/00) Het Ram vs. Institute of Human Behavior And Allied Sciences shall stand withdrawn from the trial court and transferred for adjudication with the present case. The trial court shall transmit the records of the case to this court. (ii). Upon receipt of the record of the case, the same shall be placed alongwith the present suit before the court for appropriate orders regarding consolidation if required. (iii) This application is allowed in the above terms. (GITA MITTAL) Judge March 05, 2012 kr/aa

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