Delhi District Court
Pawan Kumar vs Ramwati on 31 May, 2025
IN THE COURT OF CIVIL JUDGE-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
PRESIDED OVER BY SH. SAHIL KHURMI
CNR No:DLCT030005042010
CS SCJ No:-601151/16
Pawan Kumar
S/o Sh. Sita Ram
R/o W.No.23, Sunaro Ki Gali,
P.O. Pilani, Distt Jhunjhunu,
(Rajasthan). ...Plaintiff
Versus
Smt. Ramwati (since deceased) through LRs:-
1. Shri Ashok Kumar Pre Deceased Son
Now represented by his following heirs
and legal representatives:-
(a) Smt. Sunita (wife)
(b) Shri Ankit (son)
(c) Shri Satish Kumar (son)
2. Shri Vinod Kumar Pre-deceased son
Now represented by his following heirs and legal
representatives:-
(a) Smt. Usha (wife)
(b) Shri Rohan (son)
(c) Shri Neeraj (son)
3. Shri Manoj Kumar Pre Deceased son
now represented by his following legal heirs and
legal representatives:-
(a) Shri Pankaj (son)
(b) Shri Bhavishya (son)
Digitally
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SAHIL
SAHIL KHURMI
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4. Shri Sandeep Kumar Pre deceased son
now represented by his following heirs and
legal representatives:-
(a) Smt. Hem Lata (wife)
(b) Shri Ansh (son)
(c) Shri Vihan (son)
All residents of 540/13, Nai Basti,
Kishan Ganj,
Delhi-110007 ...Defendant
Date of institution of suit 20.03.2010
Date on which reserved for judgment 24.05.2025
Date of pronouncement of Judgment 31.05.2025
Decision DISMISSED
SUIT FOR POSSESSION, RECOVERY AND FUTURE
DAMAGES
JUDGMENT
BRIEF FACTS
1. Shorn of unnecessary details, the brief facts as per the plaint
are that defendant was a tenant in respect of one plot bearing
No.540/13,Nai Basti, Kishan Ganj, measuring about 50 sq. yards
situated in Khasra no. 459-60, Patti Jahanuma, Kishan Ganj, Delhi
on the monthly rent of Rs.3.31/ – under previous owner Sh. Baha-
ud-din Faridi.
1.2 It is further stated that after the death of original tenant Sh.
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KHURMI
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Sumera and husband of the defendant, the defendant became
tenant in respect of the plot in dispute plot bearing no. 540/13, Nai
Bast, Kishan Ganj, Delhi -110007 and started paying rent to the
previous owner against receipts and used to sign the counter foils.
1.3 It is further stated that the tenancy of the defendant starts
from 1st day of each English Calendar Month and comes to an end
on the last day of said calendar month.
1.4 It is further stated that the previous owner Baha-ud-din
Faridi had sold the entire property including the tenanted plot to
the plaintiff and attorned all the tenants including the defendant to
the plaintiff.
1.5 It is further stated that the defendant failed to pay rent for the
last more than three years and also raised unauthorized
construction over the tenanted plot and therefore, keeping in view
of the defaulting conducts of the defendant in making the arrears of
rent and also raising unauthorized construction over the tenanted
plot, her tenancy was terminated w.e.f 31.01.2010 by the plaintiff
by serving notice dated 11.01.2010 and she was required to
remove the superstructure from the tenanted plot and to handover
peaceful vacant possession of the same on or before 01.02.2010.
1.6 It is further stated that the defendant despite service of
statutory notice u/s 106 of Transfer of Property Act dated
11.01.2010 failed to comply with the notice and to vacate the
tenanted plot after removing the superstructure raised over the said
plot and therefore, the plaintiff is entitled to the relief of decree of
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by SAHIL
SAHIL KHURMI
KHURMI Date:
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possession in respect of the tenanted plot bearing No.540/13, Nai
Basti, Kishan Ganj, Delhi-110007 situated in Khasra No.459-60,
Patti Jahanuma, Kishan Ganj, Delhi.
1.7 It is further stated that the tenanted premises could fetch
Rs.3,000/- per month as rent, if the same could be let out to any
person and as such the plaintiff is also entitled to claim an amount
of Rs.3,000/- w.e.f. 01.02.2010 to 28.02.2010 and future damages
@ Rs.3,000/- per month from 01.03.2010 till delivery of
possession of the tenanted plot by the defendant. Hence, the
present suit.
2. Summons of the suit have been served on the defendant,
upon which defendant appeared through counsel and the matter
was listed for filing of written statement on behalf of defendant.
WRITTEN STATEMENT OF DEFENDANT
3. It is the case of defendant that Shah Mohd. Sanauddin was
owner of the land and built up property in the locality known as
Dargah Chisti Chaman, Bagh Kare Khan, Delhi besides other
properties and the husband of defendant was inducted as a tenant
more than 40 years ago and rent was being paid in respect of
tenanted premises to Shah Mohd Sanauddin through his rent
collector and the said rent was being paid to the owner/landlord till
1958 and thereafter no body came to collect the rent.
3.1 It is further stated that Shah Mohd Sanauddin expired
issueless and Sh. Faridi Ahmed, the rent collector was not the
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owner of the said property and it has been decided by a Court of
competent jurisdiction that Sh. Faridi Ahmed has falsely
prescribed the properties owned and left by Shah Mohd Sanauddin
were his ancestral properties as the said Shah Mohd Sanauddin
died issueless without leaving any of his relation or legal
representative in India because his brother had left India during
partition of country and settled in Pakistan. It is further stated that
his nephews are living in Pakistan and therefore it was held that
Sh. Faridi Ahmed cannot claim any right, title or interest in the
Estate left by Late Shah Mohd Sanauddin in India.
3.2 It is further stated that it was alleged that Shah Farid Ahmed
Faridi inherited the property owned by him subsequently on the
death of Shah Farid Ahmed, his only son had Bahauddin Faridi
inherited all the properties including the property in dispute and
became the absolute owner of the same, however it is settled
principle of law that after the death of the owner of the suit
property the rent collector does not get any title in the suit property,
hence, he can also not transfer any title of the suit property to his
son Sh. Bahauddin. It is further stated that the ld. Court of Ms.
Sukhwinder Kaur, the then Ld. Civil Judge, Delhi vide judgment
dated 24.02.2001 has specifically held that Sh. Bahauddin had also
failed to prove his title over the suit property. It is further stated
that thus Sh. Bahauddin had no right, title or interest over the said
plot of lands and in the absence of the same he could not have any
executed any property documents in favour of the plaintiff in the
instant suit. It is further stated that the plaintiff in the instant suit
also does not derive any right, title or interest in the suit property.
Digitally signed
by SAHIL
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3.3 It is further stated that the suit is liable to be dismissed in as
much as the plaintiff is not the owner of the property in dispute and
therefore, the plaintiff has no locus standi to file the present suit or
seek suit the relief’s as has been sought for by him in the instant
suit from the defendant. It is further stated that the present suit is
not maintainable in law. It is further stated that Sh. Bahauddin was
never the owner of the said plot of land and this fact has also been
settled by a judicial pronouncement by a Court of a competent
jurisdiction and hence, it is not open to the plaintiff to contend that
Sh. Baha Uddin Faridi was the owner of the said plot of land.
3.4 It is further stated that the plaintiff alleges to have purchased
this plot of land from a person who had no right, title or interest in
respect of the said land, hence no right flows in favour of the
plaintiff to institute the present suit and the present suit of the
plaintiff is liable to be dismissed. It is further stated that plaintiff
has failed to disclose any assertive rights over the property of
which he claims possession. It is further stated that the plaintiff
has not filed the proper documents of the property in which he is
claiming his ownership and the documents of the ownership as
relied upon by the plaintiff are unenforceable under law and are
liable to be impounded. It is further stated that the plaintiff is not
maintainable in law and is liable to be dismissed out rightly. It is
further stated that the present suit is not maintainable in law and is
liable to be dismissed out rightly. It is further stated that the
defendant has been exerting all rights as owner of the suit property.
It is further stated that defendant has been in open actual
constructive possession of the suit property for the last more than
four decades without any protest or demur from the real owner of
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by SAHIL
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the suit premises and has thus perfected his title by adverse
possession over the suit property. It is further stated that plaintiff is
neither the owner nor can claim himself to be the owner of the suit
property. It is further stated that the suit of the plaintiff is liable to
be dismissed. It is further stated that plaintiff cannot assert himself
to be the owner of the suit property in as much as he has not
purchased it from a person having a valid title to the suit property
and also the documents evidencing the transactions of sale are not
legally binding and enforceable under law.
3.5 It is further stated that plaintiff claims to have purchased the
suit property on the basis of unregistered documents being the
GPA and Agreement to Sell dated 24.09.2009 executed in his
favour. It is further stated that the said documents are in
contraventions of the provisions of the transfer of property Act as
also the provisions of the Indian Registration Act. It is further
stated that the documents being unregistered documents are liable
to be impounded by this Court.
3.6 It is further stated that the cardinal principle of law that an
agreement to sell does not confer any right, title or interest upon
the person in whose favour the said documents is executed. It is
further stated that as such the rights of the plaintiff are in dispute
more so when the defendant himself is the owner of the suit
property by virtue of the doctrine of adverse possession. It is
further stated that the admittedly the plaintiff is not in possession
of the suit property and that the plaintiff has not valued the suit
property for the purposes of court fee and jurisdiction and the court
fee payable is on the market value of the suit property and hence,
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by SAHIL
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the present suit is liable to be dismissed. It is further stated that the
suit of the plaintiff is barred u/s 34 of the Specific Relief Act. It is
further stated that the present suit is liable to be dismissed under
the provisions of Order VII Rule 11 CPC. It is further stated that
the present suit is the grossest abuse of the process of law and is
liable to be dismissed out rightly. It is further stated that the
present suit is false, frivolous and vexatious and does not inspire
any confidence. It is further stated that plaint does not disclose any
cause of action and as such the present suit is liable to be
dismissed. It is further stated that the plaintiff has concealed
material facts from this Court and that no cause of action has arisen
in favour of the plaintiff to file the present suit.
REPLICATION
4. Replication has been filed on behalf of plaintiff to the
written statement of defendants thereby denying the averments
made in the written statement and reiterating the averments made
in the plaint.
ISSUES
5. Thereafter on completion of pleadings, the following issues
were framed:-
1. Whether the defendant is owner of property bearing
No.540/13, measuring 50 sq. yards situated in Khasra No.459-
60, Patti Jahanuma, Nai Basti, Kishan Ganj, Delhi, by way of
adverse possession? OPD
Digitally
signed by
SAHIL
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2.Whether this court lacks pecuniary as well as territorial
jurisdiction to entertain and try the present suit? OPD
3. Whether the suit of the plaintiff is liable to be rejected on the
ground that there is no cause of action against the defendant?
OPD
4. Whether the suit of the plaintiff is barred u/s 34 of Specific
Relief Act? OPD
5. Whether the suit has not been properly evaluated for the
purpose of court fees and jurisdiction? OPD
6. Whether the plaintiff is landlord of plot No.540/13, measuring
50 sq yards situated in Khasra No.459-60, Patti Jahanuma, Nai
Basti, Kishan Ganj, Delhi? OPP
7. Whether the plaintiff is entitled to recovery of possession of
plot No.540/13, measuring 50 sq yards, situated in Khasra
No.459-60, Patti Jahanuma, Nai Basti, Kishan Ganj, Delhi?
OPP
8. Whether the plaintiff is entitled to recovery of damages, if so,
at what rate and for which period? OPP
9. Relief.
5.1 Thereafter the matter was fixed for recording of plaintiff
evidence.
PLAINTIFF EVIDENCE
6. In order to prove the case of the plaintiff has got examined
himself as PW-1.
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KHURMI
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6.1 PW-1 tendered evidence by way of affidavit Ex.PW1/A.
PW-1 relied on the following documents:-
Ex.PW1/1 Site Plan of tenanted plot.
Ex.PW1/2 to Original Rent receipts in Urdu.
Ex.PW1/4
Ex.PW1/5 to Hindi Translation of rent receipts.
Ex.PW1/7
Mark A to Mark C Copies of GPA, Agreement to Sell,
Receipt.
Ex.PW1/8 Notice cum intimation letter dated
01.10.2009.
Ex.PW1/9 Attornment letter dated 01.10.2009.
Ex.PW1/10 Postal receipt.
Ex.PW1/11 Acknowledgment Card.
Ex.PW1/12 Legal Notice dated 02.01.2010.
Ex.PW1/13 UPC
Ex.PW1/14 Postal receipt of legal notice.
Ex.PW1/15 AD Card.
Mark A Photocopy of Power of Attorney.
Mark B Photocopy of agreement to sell.
Mark C Photocopy of affidavit executed by Sh.
Bahauddin.
Mark D Photocopy of Khasra Girdawari.
6.2 PW-1 has been duly cross examined by Ld. Counsel for
defendant.
Digitally signed
by SAHIL
KHURMI
SAHIL Date:
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6.3 It is pertinent to mention that PW-1 was re-examined on
29.04.2023 and relied upon the following documents:-
Ex.PW1/16 Photocopy of GPA dated 24.09.2009
(original of the same is in CS
No.1194/16)
Ex.PW1/17 Photocopy of Agreement to Sell dated
24.09.2009 (original of the same is in CS
No.1194/16)
Ex.PW1/18 Photocopy of Original Affidavit dated
24.09.2009 (original of the same is in CS
No.1194/16)6.4 Sh. Bahauddin Faridi has been examined as PW-2. PW-2
tendered evidence by way of affidavit Ex.PW2/A and relied upon
the documents already exhibited as Ex.PW1/1 to Ex.PW1/11 and
the documents Mark A to Mark D. PW-2 has been duly cross
examined on behalf of defendant.
6.5 Sh. Ram Avtar, Patwari, SDM Office, Civil Lines, Delhi has
been examined as PW-3. PW-3 proved on record the Jamabandi
for the year 1978-79 Ex PW3/A(OSR), Khasra Girdawari for the
year 2009 to 2013 Ex.PW3/B(OSR), Intekal/Mutation having
intekal No.1597, 1623, 1652 and 1653 Ex.PW3/C to Ex.PW3/F
respectively. PW-3 was duly cross examined by Ld. Counsel for
defendant.
6.6 Sh. Bashir Ahmed has been examined as PW-4. PW-4 is the
translator who translated the Ex.PW3/C intekal No.1597 and
proved on record the translated copy of the same as Ex.PW4/A
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KHURMI
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which bears his signature at point A. PW-4 was duly cross
examined by Ld. Counsel for defendant.
7. Record shows that defendant had expired during the course
of trial and therefore, vide order dated 22.07.2024 her legal heirs
were impleaded on record.
8. Thereafter, plaintiff evidence was closed vide order dated
08.08.2018 and the matter was listed for recording of defence
evidence on behalf of defendant. However, no defence evidence
was led and therefore, vide order dated 28.05.2024 the defence
evidence was closed on separate statement of Ld. Counsel for
defendant to the effect that defendant does not wish to lead any
evidence in his defence. It is further stated that vide order dated
22.07.2024 the defendant’s evidence was closed on behalf of LR
No.3 of the deceased defendant.
9. Final arguments were heard at length. Record of the case
file has been perused carefully.
FINDINGS OF COURT
10. For the sake convenience, first the issue no. 6, 7 and 8 are
taken up for consideration.
ISSUE NO. 6 Whether the plaintiff is landlord of property
No.540/13, measuring 50 sq yards situated in Khasra No.459-
60, Patti Jahanuma, Nai Basti, Kishan Ganj, Delhi? OPP
ISSUE NO. 7 Whether the plaintiff is entitled to recovery of
possession of plot No.540/13, measuring 50 sq yards situated in
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signed by
SAHIL
SAHIL KHURMI
KHURMI Date:
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Khasra No.459-60, Patti Jahanuma, Nai Basti, Kishan Ganj,
Delhi? OPPISSUE NO. 8 Whether the plaintiff is entitled to recovery of
damages, if so, at what rate and for which period? OPP
11. All the aforesaid issues are taken up together being
interconnected. The onus to prove these issues is on the plaintiff.
CASE OF THE PLAINTIFF IN BRIEF
12. It is the case of the plaintiff that defendant is a tenant in
respect of suit property on monthly rent of Rs.3.31/- under the
previous owner Sh. Baha-Ud-Din Faridi. That the defendant used to
pay rent to the previous owner. That previous owner Shah Baha-ud-
din Faridi has sold the entire property including the tenanted plot to
the plaintiff and attorned all the tenants including the defendant to
the plaintiff. That the defendant failed to pay the rent for the last
more than three years and also raised unauthorised construction
over the tenanted plot. Hence, the present suit has been filed.
CASE OF THE DEFENDANT IN BRIEF
13. It is the case of defendant that Shah Mohd. Sanauddin was
owner of the land and built up property in the locality known as
Dargah Chisti Chaman, Bagh Kare Khan, Delhi besides other
properties and the husband of defendant was inducted as a tenant
more than 40 years ago and rent was being paid in respect of
tenanted premises to Shah Mohd Sanauddin through his rent
collector Farid Ahmed Faridi and the said rent was being paid till
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KHURMI
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1958 and thereafter no body came to collect the rent. That Shah
Mohd Sanauddin expired issueless and Sh. Faridi Ahmed, the rent
collector was not the owner of the said property and it has been
decided by a Court of competent jurisdiction that Sh. Faridi
Ahmed has falsely prescribed the properties owned and left by
Shah Mohd Sanauddin were his ancestral properties as the said
Shah Mohd Sanauddin died issueless without leaving any of his
relation or legal representative in India because his brother had left
India during partition of country and settled in Pakistan. It is
further stated that his nephews are living in Pakistan and therefore
it was held that Sh. Faridi Ahmed cannot claim any right, title or
interest in the Estate left by Late Shah Mohd Sanauddin in India.
14. It is further stated that it was alleged that Shah Farid Ahmed
Faridi inherited the property owned by him subsequently on the
death of Shah Farid Ahmed, his only son had Bahauddin Faridi
inherited all the properties including the property in dispute and
became the absolute owner of the same, however it is settled
principle of law that after the death of the owner of the suit
property the rent collector does not get any title in the suit property,
hence, he can also not transfer any title of the suit property to his
son Sh. Baha-ud-din.
15. It is further stated that the ld. Court of Ms. Sukhwinder
Kaur, the then Ld. Civil Judge, Delhi vide judgment dated
24.02.2001 has specifically held that Sh. Baha-ud-din had also
failed to prove his title over the suit property. It is further stated
that thus Sh. Baha-ud-din had no right, title or interest over the said
plot of lands and in the absence of the same he could not have any
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SAHIL KHURMI
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executed any property documents in favour of the plaintiff in the
instant suit.
16. It is further stated that defendant has been in open actual
constructive possession of the suit property for the last more than
four decades without any protest or demur from the real owner of
the suit premises and has thus perfected his title by adverse
possession over the suit property.
17. It is further stated that plaintiff claims to have purchased the
suit property on the basis of unregistered documents being the
GPA and Agreement to Sell dated 24.09.2009 executed in his
favour which are in contraventions of the provisions of the transfer
of property Act as also the provisions of the Indian Registration
Act and the said documents does not confer any right, title or
interest upon the plaintiff.
Judgment Dated 24.02.2001 of Ms. Sukhvinder Kaur, the then
Ld. Civil Judge, Delhi
18. Ld. Counsel for the defendant has drawn the attention of this
Court to the judgment dated 24.02.2001 titled as Mohan Singh vs.
Baha Uddin Faridi and others of Ms. Sukhvinder Kaur, the then
Ld. Civil Judge, Delhi, in which it is held by the said Court that:-
“16. In rebuttal, Ld. Counsel for plaintiff has
argued that the revenue record i.e. Jamabandi
and Khasra girdawari are maintained by the
revenue department in respect of agricultural
land of rural area under the provisions of theCS SCJ No.601151/16 Digitally signed Page No.15 of 54
by SAHIL
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Delhi Land Reforms Act and Delhi Land
Revenue Act. The locality known as Dargah
Chisti Chaman and Bagh Kare Khan are within
the limits of village Sandhora Kalan which was
urbanised in the year 1962 by issuing
notification under section 507 of Delhi
Municipal Corporation Act and after issuing of
the Delhi Land Reforms Act became in
applicable. He has further argued that defendant
No.1 in connivance with Abdul Wahid and
Patwari committed forgery in the revenue record
and got his name entered in the revenue record
on 27.01.1982 has also alleged in the plaint that
the documents are forged. He has further argued
that in Khasra girdawari i.e. Ex.DW2/7 which is
in hindi the father’s name of Shah Mohd
Sannauddin is clearly mentioned as Shah Mohd.
Abdul Gaffur. The defendant No.1 as DW2 also
in his cross-examination has admitted that
Ex.DW2/7 has been filed by him and that in the
document Ex.DW2/7 the name of father of Shah
Mohd. Sanauddin is shown as Mohd. Abdul
Gaffur Sheikh. However, he has denied the
suggestion that the name of father of Mohd.
Sanauddin was Mohd. Abdul Gaffur. He has
argued that from the document itself is proved
that the documents are forged and fabricated
and on the basis of documents Ex.DW2/3 to
Ex.DW2/8, he can not claim himself to be theCS SCJ No.601151/16 Page No.16 of 54
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by SAHIL
SAHIL KHURMI
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owner of the property.
17. Although, the defendant No.1 claimed
himself to be the nephew of Shri Sanauddin who
admittedly is the owner of the suit property,
however, he has failed to produce any evidence
to show that Mohd. Sanauddin and Shri Farid
Ahmed Faridi i.e. father of defendant No.1 were
real brothers.
18. I have also gone through the document
Ex.DW2/3 to Ex.DW2/8 and from the documents
it is revealed that area or locality in respect of
which the entries have been made has not been
specified in the Khasra Girdawari and Jama
Bandi and the register of mutation exhibit on the
record. Besides this, from the documents even the
relationships between the owner and the father
of defendant No.1 is not proved. In the register of
mutation Ex.DW2/6 and Khasra Girdawari
Ex.DW2/4, the name of father of Shah Farid
Ahmed Faridi has been given as Shah Abdul
Ahmed whereas in the Khasra Girdawari
Ex.DW2/7 and Jama Bandi Ex.DW2/8, the name
of father of original owner i.e. Mohd.
Shannauddin has been mentioned as Shah Mohd.
Abdul Gaffur. As the certified copies of revenue
records placed on the record do not even specify
about property in respect of which they relate, no
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SAHIL KHURMI
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evidentiary value can be attached to them so far
as the disposal of present suit is concerned. Even
otherwise, the entries in the mutation register in
the name of father of defendant No.2 also do
not confer any proprietary title upon him. In
this regard, I rely upon the judgment cited by Ld.
Counsel for plaintiff in Bhaguji Bayaji Pokale &
others Vs. Kantilal Baban Gunjawate & others,
1998(1) Civil Court cases 629(Bombay) wherein
it was held that:
“Mere mutation entry or change in any
mutation entry does not confer any title to any
immovable property.”
Similarly in Balwant Singh & Another Vs.
Daulat Singh (dead) by L.R.’s & Ors., 1997
(Suppl.) Civil Court Cases 262 (S.C.). wherein it
was held that:-
“Mutation entries do not convey or extinguish
any title-Those entries are relevant only for
purpose of collection of land revenue.”
Even otherwise, the Land Revenue Act is not
applicable to the locality known as Dhargah
Chisti Chaman falling in village Sodhoram
Kalan as the same ceased to be the rural area
after notification by MCD u/s 506 of Delhi
Municipal Corporation Act. The letter issued by
MCD for mutation in favour of defendant No.1
Ex.DW2/9 also does not confer any title upon the
defendant No.1.
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19. The plaintiff has also been able to prove
that he is in possession of suit property as a
tenant as the suit for recovery of possession
against defendant No.1 has already been
decreed by Shri Sukhdev Singh, Ld. C.J. vide his
judgment Ex.DW1/7 which has also been upheld
in appeal vide order Ex/DW1/8. The defendant
has failed to show that defendant No.2 is in
possession of suit property.
20. As the plaintiff has been able to prove
that he is a tenant in possession of the suit
property and defendant No.1 has no right to
dispose of the property and defendant No.1 has
also failed to prove his title over the suit
property and his right to execute the sale deed
in respect of the suit property, the sale deed
deserves to be decreed Null and Void. Besides
this, defendant No.2 has failed to prove his
possession over the suit property whereas the
possession of plaintiff has been sufficiently
proved. Thus it is proved that the averments
contained in sale deed that the Vendee is already
in actual physical possession of the suit property
as a tenant are incorrect. For this reason, also,
the sale deed is invalid and void documents.
Besides this, the defendants have not specifically
denied in the written statement that suits for
ejectment in respect of suit property and the
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dispute regarding the ownership of defendant
No.1 is already pending. In view of the pendency
of the dispute regarding the ownership of
defendant No.1, defendant No.1 has no right to
sell the suit property to the third person u/s 55
of Transfer of Property Act.”
(emphasis laid)
19. Thus, it is undisputed fact that vide judgement dated
24.02.2001 of Ms. Sukhvinder Kaur, the then Ld. Civil Judge,
Delhi, titled as Mohan Singh vs. Baha Uddin Faridi and others, it
has been held by Hon’ble Court that the defendant Baha Uddin
Faridi had failed to prove his title over the suit property and
consequently, he had no right to execute the sale deed in respect of
the suit property and thus, the sale deed deserves to be decreed Null
and Void. The said judgement was admittedly never challenged by
Sh. Baha-ud-din. It is interesting to note that in cross examination
of PW-2 Sh. Baha-ud-din, specific questions were asked from him
regarding the aforesaid judgement dated 24.02.2001 but he gave
evasive denials of the same. Despite showing the certified copy of
judgement dated 24.02.2001 to him, PW-2 Sh. Baha-ud-din refused
that the said judgement was decided against him whereby it was
held by the Court that he doesn’t have any right in the suit property.
The same is contrary to the judicial record of judgment dated
24.02.2001. PW-2 Sh. Baha-ud-din was further asked whether he
filed any appeal against the said judgement dated 24.02.2001, to
which he stated that he doesn’t remember.
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ENTRY IN THE REVENUE RECORD DOESN’T CONFER
TITLE
20. The entire case of the plaintiff to prove his ownership and
title of the suit property is based on the unregistered agreement to
sell and GPA dated 24.09.2009 which is executed by Sh. Baha-ud-
din in favour of the plaintiff. It is the case of the plaintiff that Sh.
Baha-ud-din had derived title/ownership on the basis of entry in
the revenue record of Khasra Girdawari. PW-2 Sh. Baha-ud-din
has also deposed in his evidence dated 16.05.2014 that, “It is
correct that the entire transaction of sale was conducted by me
purely on the basis of Khasra Girdawari.” The plaintiff has
examined PW-3 who is Patwari to prove the entries in the revenue
record.
21. Now, I shall deal with the moot question that whether entry
in the revenue record (Khasra Girdawari) confers any title of
property or not.
22. Khasra Girdawari: Khasra Girdawari is an annual record
maintained by revenue authorities that reflects the cultivation and
occupancy of land. However, as per the settled law, it is not
classified as a record of rights under various land revenue laws. It
serves primarily as an administrative tool for tracking land use and
does not confer ownership or title to the land. Khasra Girdawari
does not constitute a record of rights. It is merely an administrative
entry made by the Patwari during the girdawari operations, which
reflects the status of land use at a given time. Now, I shall be
discussing the settled law, as decided by Various High Courts as
well as the Supreme Court of India that Khasra Girdawari is not a
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record of rights and it doesn’t confer any title. It is also discussed
in great detail that entry in the revenue records doesn’t confer any
title/ownership.
HIGH COURT OF RAJASTHAN
23. In Panne Singh vs Guman Singh (decided on 09.03.1964)
a reference was made by double bench of Hon’ble Rajasthan High
Court to a larger bench of four Judges of Hon’ble Rajasthan High
Court on a specific question that “Is khasra girdawari a record of
right”?, which ruled that, “We are, therefore, clearly of the
opinion that the khasra girdawari is not a record of rights”.
HIGH COURT OF HIMACHAL PRADESH
24. In Beant Singh vs Natha Singh AIR1966HP48, it was held
by Hon’ble High Court of Himachal Pradesh High Court that,
“The entries in Khasra Girdawari do not carry a presumption of
truth under the Himachal Pradesh Land Revenue Act, as they are
not considered a record of rights or an annual record. Such
entries merely constitute a piece of evidence but not a presumptive
piece of evidence.”
HON’BLE HIGH COURT OF DELHI
25. In Nathu Ram vs DDA & Anr. RSA 64/2020 decided by
Hon’ble High Court of Delhi on 1 February, 2022, it was held that:
23. As for the other contentions made by the
parties and evidence presented, this Court
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observes first, that the Plaintiffs have heavily
relied upon their and their family members’
names reflecting in certain revenue records
such as Khasra girdawaris to establish that
they have been in ownership and possession
of the suit property. However, it is the settled
position in law that reflection of a party’s
name in the revenue records cannot confer
title. This was most recently upheld in
Prabhagiya Van Adhikari Awadh Van
Prabhag V. Arun Kumar Bhardwaj (Dead)
Thr. Lrs. [Civil Appeal No 7017 of 2009,
decided on 5th October, 2021], where the
Supreme Court held:
“26. This Court in a judgment reported as
Prahlad Pradhan and Ors. v. Sonu Kumhar
and Ors. negated argument of ownership
based upon entries in the revenue records.
It was held that the revenue record does not
confer title to the property nor do they have
any presumptive value on the title. The
Court held 7 (2019) 10 SCC 259 as under:
“5. The contention raised by the appellants is
that since Mangal Kumhar was the recorded
tenant in the suit property as per the Survey
Settlement of 1964, the suit property was his
self-acquired property. The said contention
is legally misconceived since entries in the
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revenue records do not confer title to a
property, nor do they have any presumptive
value on the title. They only enable the
person in whose favour mutation is
recorded, to pay the land revenue in respect
of the land in question. As a consequence,
merely because Mangal Kumhar’s name was
recorded in the Survey Settlement of 1964 as
a recorded tenant in the suit property, it
would not make him the sole and exclusive
owner of the suit property.”
(emphasis supplied)
26. It is relevant to mention that the judgment of Hon’ble Delhi
High Court in Nathu Ram vs DDA (Supra) was recently reiterated
and referred to by Hon’ble Delhi High Court in Udaiveer & Ors.
vs Union Of India & Ors. W.P. (C) 2505/2023 decided on 3
February, 2025, whereby, it was held that: “Therefore, the mere
mention in some years of khasra girdawari showing possession,
cannot by itself confer ownership and title in respect of such
precious land.”
27. In Rajeev Sharma vs Shri Raj Kumar & Ors. AIR
ONLINE 2018 DEL 2345, it was again observed by Hon’ble Delhi
High Court that, “It is no longer res integra that
Khasra/Girdawari does not confer a title.”
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28. In Bal Bhagwan vs Delhi Development Authority CM
(M) 416/2019 decided by Hon’ble Delhi High Court on
18.12.2020, it was held that:
53. It is also well settled that jamabandis
and khasra girdawaris do not vest any
ownership rights, as per the judgment of the
Supreme Court in State of A.P. v. Star Bone
Mill and Fertiliser Company, (2013) 9 SCC
319. In any event, even the khasra
girdawari for the year 2000-01 to 2004-05,
clearly shows that the Plaintiff does not
have any ownership rights.
(emphasis supplied)
HON’BLE SUPREME COURT OF INDIA
29. In State of Punjab vs Bhagwantpal Singh 2024 LiveLaw
(SC) 479, it was observed by Hon’ble Supreme Court that
Revenue Record Entries doesn’t Confer Title. It was held that:
“Merely because the name of the plaintiff
continued in the revenue records (Jama
Bandis), it would not confer any title upon
him. Revenue records (Jama Bandis) are only
entries for the purpose of realising tax by the
Municipal Corporations or land revenue by
Gram Sabhas.
(emphasis laid)
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30. In P. Kishore Kumar vs Vittal K. Patkar 2023 LiveLaw
(SC) 999, it was held by Hon’ble Supreme Court that:
11. It is trite law that revenue records are not
documents of title.
12. This Court in Sawarni vs. Inder Kaur and
Ors. held that mutation in revenue records
neither creates nor extinguishes title, nor
does it have any presumptive value on title.
All it does is entitle the person in whose
favour mutation is done to pay the land
revenue in question.
13. This was further affirmed in Balwant
Singh & Ors vs. Daulat Singh (Dead) by LRs
and Ors. wherein this Court held that mere
mutation of records would not divest the
owners of a land of their right, title and
interest in the land.
14. In Jitendra Singh vs. State of Madhya
Pradesh and Ors., this Court after
considering a catena of judgments, reiterated
the principle of law as follows:
“6. ***mutation entry does not confer any
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and the mutation entry in the revenue record
is only for the fiscal purpose.”
15. We may also profitably refer to the
decision of this Court in Sita Ram Bhau Patil
vs. Ramchandra Nago Patil (Dead) by LRs.
and Ors. wherein it was held that there exists
no universal principle that whatever will
appear in the record of rights will be presumed
to be correct, when there exists evidence to the
contrary.
(emphasis supplied)
31. In Jagdish Prasad Patel (Dead) thr. LRs. and Ors. vs.
Shivnath and Ors. (2019) 6 SCC 82, the Hon’ble Supreme Court
has held that:
“44. In the suit for declaration for title and
possession, the Plaintiffs-Respondents could
succeed only on the strength of their own title
and not on the weakness of the case of the
DefendantsAppellants. The burden is on the
Plaintiffs-Respondents to establish their title
to the suit properties to show that they are
entitled for a decree for declaration. The
Plaintiffs-Respondents have neither produced
the title document i.e. patta-lease which the
Plaintiffs-Respondents are relying upon nor
proved their right by adducing any otherCS SCJ No.601151/16 Page No.27 of 54
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evidence. As noted above, the revenue entries
relied on by them are also held to be not
genuine. In any event, revenue entries for
few Khataunis are not proof of title; but are
mere statements for revenue purpose. They
cannot confer any right or title on the party
relying on them for proving their title.”
(emphasis supplied)
32. In Gurunath Manohar Pavaskar & Ors. vs Nagesh
Siddappa Navalgund & Ors AIR 2008 SC 901, Hon’ble
Supreme Court also held that, “A revenue record is not a document
of title. It merely raises a presumption in regard to possession.”
33. In Union of India & Ors. v. Vasavi Cooperative Housing
Society Limited & Ors. (2014) 2 SCC 269, it was held by Hon’ble
Supreme Court of India that:
17. This Court in several Judgments has
held that the revenue records does not
confer title. In Corporation of the City of
Bangalore v. M. Papaiah and another
(1989) 3 SCC 612 held that “it is firmly
established that revenue records are not
documents of title, and the question of
interpretation of document not being a
document of title is not a question of law.”
In Guru Amarjit Singh v. Rattan Chand and
others (1993) 4 SCC 349 this Court has
held that “that the entries in jamabandi are
not proof of title”. In State of Himachal
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Pradesh v. Keshav Ram and others (1996)
11 SCC 257 this Court held that “the
entries in the revenue papers, by no stretch
of imagination can form the basis for
declaration of title in favour of the
plaintiff.”
34. Thus the upshot of the above discussion is that it is a trite
law that revenue record especially Khasra Girdawari is not
document of title and mere entry in revenue records doesn’t confer
any title. Thus, this Court has come to irresistible conclusion that
Sh. Baha-ud-din was not the owner of the suit property and he had
no title of the suit property.
NO ONE CAN TRANSFER A BETTER TITLE
THAN HE HIMSELF HAS
35. This takes me to the next limb of argument, very well taken
by the counsel for the defendant, that no one can transfer a better
title than he himself has. Since it has already been held that Sh.
Baha-ud-din was not the owner of the suit property (based solely
on Khasra Ghirdawri) can he transfer a better title to the plaintiff
than he himself had?
36. It is a settled law that no one can sell a better title than he
himself has. A buyer’s title would be subject to the same defect as
the seller’s if the seller’s title is also defective. This rule simply
implies that the buyer’s title cannot be better than the seller’s title.
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Same is enshrined in Section 27 of Sale of Goods Act. The legal
maxim Nemo dat quod non habet also means “no one gives what
he doesn’t have”. Thus, when Sh. Baha-ud-din had no title of the
suit property he can’t transfer a better title to the plaintiff (that too
by way of unregistered agreement to sell or unregistered General
power of attorney). The said principle also finds mention in the
judgment of Hon’ble Supreme Court in P. Kishore Kumar vs
Vittal K. Patkar 2023 LiveLaw (SC) 999, which has been
discussed above in great detail.
CAN AGREEMENT TO SELL/ GENERAL POWER OF
ATTORNEY (UNREGISTERED) CONFER ANY TITLE?
37. The entire case of the plaintiff rests on the premise that he is
the owner of the suit property based on unregistered agreement to
sell and unregistered General power of attorney executed by Sh.
Baha-ud-din in his favour. Now, this Court shall consider whether
the said documents confer any title/ownership to the plaintiff or
not.
38. In a landmark judgment in 2011 in Suraj Lamps and
Industries Pvt Ltd vs. State of Haryana, the Supreme Court of
India ruled that power of attorney for sale of property is legally not
valid. The ruling emphasized that a transaction involving the sale
or transfer of property requires a sale deed, which must be
registered under the Indian Registration Act, of 1908. This
Digitally
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decision was primarily aimed at curbing fraudulent transactions
and ensuring transparency in property dealings.
39. In Anuj Sharma vs Amit Sharma, neutral citation
2023:DHC:4589, Hon’ble Delhi High Court referred to judgment
of Suraj lamps (supra) and held that:
It is trite that transfer of immovable
property by way of sale can only be by a
Deed of Conveyance/Sale Deed, duly
stamped and registered as required by law
and in the absence of this, no right, title or
interest can be transferred in an
immovable property. In Suraj Lamps
(supra), the Supreme Court held that Power
of Attorney is not an instrument of transfer
in regard to any right, title or interest in an
immovable property and only authorizes
the Attorney to do the acts specified
therein. It was further held that
transactions of the nature of “GPA
sales”or ‘SA/GPA/Will/Transfers” do not
convey title and do not amount to transfer
nor can they be recognized as valid mode of
transfer of immovable property and Court
will not treat such transactions as
completed or concluded transfers or as
conveyances. The Supreme Court observed
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as deeds of title, except to the limited extent
of Section 53-A of Transfer of Property
Act, 1882.
(emphasis supplied)
40. In Shakeel Ahmed v. Syed Akhlaq Hussain (Neutral
Citation: 2023 INSC 1016), it was held by Hon’ble Supreme Court
that:
9. It was also submitted that there was a
prohibition of registration of documents of
transfer/conveyance with respect to the area
where the property in question is situate and,
therefore, the transfers affected under the
customary documents was sufficient to confer
title on the respondent. It was also submitted
that the judgment in the case of Suraj Lamps
& Industries Pvt. Ltd. Vs. State of Haryana
and Anr., which was of the year 2011, had
prospective application and would not have
any bearing on the title of the respondents
which came to him under the customary
documents executed in the year 2008 much
prior to the judgment in the case of Suraj
Lamps & Industries (supra).
10. Having considered the submissions at the
outset, it is to be emphasized that irrespective
of what was decided in the case of Suraj
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that no title could be transferred with respect
to immovable properties on the basis of an
unregistered Agreement to Sell or on the
basis of an unregistered General Power of
Attorney. The Registration Act, 1908 clearly
provides that a document which requires
compulsory registration under the Act, would
not confer any right, much less a legally
enforceable right to approach a Court of Law
on its basis. Even if these documents i.e. the
Agreement to Sell and the Power of Attorney
were registered, still it could not be said that
the respondent would have acquired title
over the property in question. At best, on the
basis of the registered agreement to sell, he
could have claimed relief of specific
performance in appropriate proceedings. In
this regard, reference may be made to sections
17 and 49 of the Registration Act and section
54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or
interest in immovable property can be
conferred without a registered document.
Even the judgment of this Court in the case
of Suraj Lamps & Industries (supra) lays
down the same proposition. Reference may
also be made to the following judgments of
this Court: (i). Ameer Minhaj Vs. Deirdre
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Elizabeth (Wright) Issar and Others (ii).
Balram Singh Vs. Kelo Devi (iii). M/S Paul
Rubber Industries Private Limited Vs. Amit
Chand Mitra & Anr.
13. The argument advanced on behalf of the
respondent that the judgment in Suraj
Lamps & Industries (supra) would be
prospective is also misplaced. The
requirement of compulsory registration and
effect on non-registration emanates from the
statutes, in particular the Registration Act
and the Transfer of Property Act. The ratio in
Suraj Lamps & Industries (supra) only
approves the provisions in the two
enactments. Earlier judgments of this Court
have taken the same view.
(emphasis supplied)
41. The said judgment of Hon’ble Supreme Court in Shakeel
Ahmed (supra) is squarely applicable to the present case, because
the plaintiff is claiming his ownership/right/title/interest on the suit
property on the basis of Agreement to sell, General Power of
attorney etc executed in 2009 prior to Judgment in Suraj
Lamp(supra) in 2011.
42. In Shakeel Ahmed (supra), the Supreme Court has reiterated
that a title with respect to an immovable property cannot be
transferred based on an unregistered agreement to Sell or a General
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Power of Attorney. The Supreme Court clarified that a title cannot
be transferred of immovable properties through unregistered
documents including Agreement to Sell and the Power of Attorney.
Reference was made to Section(s) 17 and 49 of the Registration
Act and Section 54 of the Transfer of Property Act by the Court, to
affirm that without registration of the document no right, title or
interest can be conferred with respect to an immovable property. It
rejected the contention that the judgment in the case of Suraj
Lamps and Industries Pvt. Ltd. v. State of Haryana and Anr.
183 (2011) DLT 1 (SC) is only prospective. The Bench said that
the Registration Act, 1908 clearly provides that a document which
requires compulsory registration under the Act, would not confer
any right, much less a legally enforceable right to approach a Court
of Law on its basis. The Hon’ble Supreme Court further noted that
the law is well settled that no right, title, or interest in immovable
property can be conferred without a registered document (Sale
deed).
43. In Ghyan Shyam vs Yogendra Rathi 2023 LiveLaw (SC)
479, (alternative citation MANU/SC/0642/2023), Hon’ble
Supreme Court has again reiterated the settled law with regard to
transfer of ownership of immovable property by way of sale deed
only. The said case was also for suit for eviction along with
recovery of mesne profits, just like the present case in hand. It was
held that:
12. It goes without saying that the power of
attorney executed by the defendant-
appellant is of no consequence as on the
strength of said power of attorney, neither
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sale deed has been executed nor any action
pursuant thereof has been taken by the
power of attorney holder which may confer
title upon the plaintiff-respondent. Non-
execution of any document by the general
power of attorney holder consequent to it
renders the said general power of attorney
useless.
14. In connection with the general power of
attorney and the will so executed, the practice,
if any, prevalent in any State or the High Court
recognizing these documents to be documents
of title or documents conferring right in any
immovable property is in violation of the
statutory law. Any such practice or tradition
prevalent would not override the specific
provisions of law which require execution of a
document of title or transfer and its
registration so as to confer right and title in an
immovable property of over Rs.100/- in value.
The decisions of the Delhi High Court in the
case of Veer Bala Gulati Vs. Municipal
Corporation of Delhi and Anr. following the
earlier decision of the Delhi High Court itself
in the case of Asha M. Jain Vs. Canara Bank
and Ors. holding that the agreement to sell
with payment of full consideration and
possession along with irrevocable power of
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attorney and other ancillary documents is a
transaction to sell even though there may not
be a sale deed, are of no help to the plaintiff-
respondent inasmuch as the view taken by the
Delhi High Court is not in consonance with
the legal position which emanates from the
plain reading of Section 54 of the Transfer of
Property Act, 1882. In this regard, reference
may be had to two other decisions of the
Delhi High Court in Imtiaz Ali Vs. Nasim
Ahmed and G. Ram Vs. Delhi Development
Authority which inter-alia observe that an
agreement to sell or the power of attorney are
not documents of transfer and as such the
right title and interest of an immovable
property do not stand transferred by mere
execution of the same unless any document
as contemplated under Section 54 of the
Transfer of Property Act, 1882, is executed
and is got registered under Section 17 of the
Indian Registration Act, 1908. The decision
of the Supreme Court in Suraj Lamp &
Industries Pvt. Ltd. Vs. State of Haryana &
Anr. also deprecates the transfer of
immovable property through sale agreement,
general power of attorney and will instead of
registered conveyance deed.
(emphasis laid)
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44. Recently, a division bench of Hon’ble Delhi High Court in
Veeneta (since deceased) vs Jyoti Gupta FAO(OS) 143/2023
dated 22.05.2024 has relied upon the aforesaid judgments and has
declined to accept the GPA sales as valid. Following observations
are relevant:
“Further, in law, the chain of the alleged
unregistered customary documents dated 04th
November, 1999, for property bearing no.
D-114, Mahendru Enclave, Delhi, the alleged
unregistered customary documents dated 12th
January, 2000, for property bearing no.
D-136, Mahendru Enclave, Delhi, and the
alleged unregistered customary documents
dated 09th August, 1999, with respect to
property bearing house no. 1601, Outram
Lane, in the absence of stamping and
registration cannot confer any right, title or
interest in an immovable property in view of
Section 17 of the Registration Act, 1908 and
Section 54 of the Transfer of Property Act,
1882 (‘Act of 1882’). The said documents are
unregistered and inadequately stamped and
are, therefore, inadmissible in evidence.
Therefore, no right, title or interest has
enured in favour of late Ms. Vaneeta Gupta in
the subject properties on the basis of the said
documents, even assuming the same were
genuine”.
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by SAHIL
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(emphasis supplied)
45. In the present case, even the agreement to sell and GPA
executed in favour of the plaintiff is not registered, but only
notarized. Thus, as held aforementioned in catena of judgments, no
title can be transferred on the basis of unregistered Agreement to
Sell or on the basis of an unregistered General Power of Attorney.
Hence, the plaintiff is not the owner of the suit property based on
unregistered agreement to sell and unregistered general power of
attorney. The Hon’ble Supreme Court in Shakeel Ahmed(supra)
even said to the extent that even if these documents i.e. the
Agreement to Sell and the Power of Attorney were registered, still
it could not be said that the plaintiff would have acquired title over
the property in question. The plaintiff has miserably failed to prove
his title and therefore, the case of plaintiff doesn’t stand on its
own legs. Thus issue No.6,7 & 8 are decided against the plaintiff
and in favour of defendants.
46. At this juncture, it is apposite to mention that Learned
Predecessor of this Court vide order dated 31.08.2016, impounded
the documents of the plaintiff namely agreement to sell/GPA under
Section 33 of the Stamps Act. The said order was challenged by the
plaintiff before Hon’ble High Court of Delhi. It was held by
Hon’ble High Court of Delhi vide order dated 16.09.2019 that, “In
light of the above clauses and the legal position laid down in Om
Prakash (supra) issues of ownership would require to be
determined by the Trial Court and adjudicated especially issues
no. 1,6 and 7. Upon the Trial Court coming to the conclusion, if
any, that ownership and possession was transferred to the
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Plaintiff, the entire stamp duty as directed in the impugned order
would be liable to be paid by the Plaintiff at that stage.”
47. Since, Issue no. 6 and 7 have been decided against the
plaintiff, there is no requirement by the plaintiff to pay the stamp
duty.
ISSUE NO. 1 Whether the defendant is the owner of property
bearing No.540/13, measuring 50 sq yards situated in Khasra
No.459-60, Patti Jahanuma, Nai Basti, Kishan Ganj, Delhi by
way of adverse possession? OPD
48. The defendant in his written statement has taken up a
defence that he is the owner of the suit property by way of adverse
possession as he is in actual constructive possession of the suit
property and has been exerting rights as owner of the same for the
last more than five decades without any protest or demur from the
real owner of the suit property and thus perfected his title by
adverse possession.
49. Before adverting to the merits of the defence taken by
defendant, it is apposite to mention the law with regard to adverse
possession.
50. In Annasaheb Bapusaheb Patil v. Baldwin Babusaheb
Pati, AIR 1995 SC 895 Hon’ble Supreme Court while dealing with
a case of adverse possession opined that, adverse possession
means a hostile assertion i.e a possession which is express or
implied and with continuity of title of the true owner. A person who
bases his title on adverse possession must show by clear and
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unequivocal evidence that possession was hostile to the real
owner and amounted to a denial of his title to the property claimed.
51. In Rama Kanta Jain v. M.S.Jain, AIR 1999 Delhi 281, it
was held that, a party who claims title by adverse possession to a
property belonging to someone else, must show the following:
(i) He has been in occupation of the
disputed property for more than 12 years
without interruption;
(ii) his possession was to the exclusion of
all the persons; and
(iii) the said possession must be open and
hostile to the true owner.
(iv) the other classical requirement of
adverse possession is that it should be
“nec vi nec clam nec precario” i.e for the
perfection of title and possession
required must be adequate in continuity,
in publicity and extent.
52. In Govindammal V. R. Perumal Chettiar & Ors.,
2006(11) SCALE 452, it was held:
“….In order to oust by way of adverse
possession, one has to lead definite
evidence to show that to the hostile
interest of the party that a person is
holding possession and how that can beDigitally
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proved will depend on facts of each
case….”
53. In T.Anjanappa and Others Vs. Somalingappa and
Another, (2006) 7 SCC 570, it was held by Hon’ble Supreme
Court that:
“12. The concept of adverse possession
contemplates a hostile possession i.e a
possession which is expressly or impliedly in
denial of the title of the true owner. Possession
to be adverse must be possession by a person
who does not acknowledge the other’s rights
but denies them. The principle of law is firmly
established that a person who bases his title
on adverse possession must show by clear and
unequivocal evidence that his possession was
hostile to the real owner and amounted to
denial of his title to the property claimed. For
deciding whether the alleged acts of a person
constituted adverse possession, the animus of
the person doing those acts is the most crucial
factor. Adverse possession is commenced in
wrong and in aimed against right. A person is
said to hold the property adversely to the real
owner when that person in denial of the
owner’s right excluded him from the enjoyment
of his property.”.
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54. In Shri Ramesh Ahuja & Anr. vs Shri Ram Nath Jain
AIR 2009 1852 (DEL), it was held that:
It is settled law that once a tenant always a
tenant. Succession of tenancy rights is
governed by the provisions of Delhi Rent
Control Act, 1958 and on the demise of a
tenant tenancy rights are inherited by his
spouse, son or daughter provided they were
living with the deceased on the date of his
death, as laid down in sub Sec. (L) of Section
2 of the Act.
(emphasis supplied)
55. In Brij Narayan Shukla (D) Thr. Lrs vs. Sudesh Kumar
(D) Thr. Lrs 2024 LiveLaw (SC) 17, the Hon’ble Supreme Court
observed that tenants cannot claim claim adverse possession
against their landlords, since their possession is permissive in
nature. It was further observed that, “The defendant respondents
were tenants and therefore their possession was permissive as
against the then landlords and not adverse. There was no question
of them claiming any adverse possession from 1944.”
56. In Mallavva and anr. Vs Kalsammanavara Kalamma
(since dead) by legal heirs & ors. Civil appeal no. 14803 OF 2024
decided on 20.12.2024, it was held by Hon’ble Supreme Court
that:
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33. This Court in Government of Kerala &
Anr. v. Joseph & Ors. reported in 2023 SCC
Online SC 961 has held as under:
“35. Mere possession over a property for a
long period of time does not grant the right
of adverse possession on its own; (a) In
Gaya Prasad Dikshit v. Dr. Nirmal Chander
(two-Judge Bench)(1984) 2 SCC 286, this
court observed- “1… It is not merely
unauthorised possession on termination of
his license that enables the licensee to claim
title by adverse possession but there must be
some overt act on the part of the licensee to
show that he is claiming adverse title. It is
possible that the licensor may not file an
action for the purpose of recovering
possession of the premises from the licensee
after terminating his license but that by itself
cannot enable the licensee to claim title by
adverse possession. There must be some
overt act on the part of the licensee
indicating assertion of hostile title. Mere
continuance of unauthorised possession
even for a period of more than 12 years is
not enough.”
(emphasis supplied)
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57. In Neelam Gupta vs Rajendra Kumar Gupta 2024 IN SC
769, Hon’ble Supreme Court held that:
41. In the decision in Brij Narayan Shukla
(D) through LRs. v. Sudesh Kumar alias
Suresh Kumar (D) through LRs. and Ors.,
this Court while considering the question
whether tenants of original owner could
claim adverse possession against transferee
of land lord held that tenants or lessees
could not claim adverse possession against
their landlord/lessor, as the nature of their
possession is permissive in nature.
45. Upon considering the evidence on the
part of the appellants herein (the
defendants), we have no hesitation to hold
that the requirements to co-exist to
constitute adverse possession are not
established by them.
58. In M/S Kamakshi Builders vs M/S Ambedkar Educational
Society & Ors on 18 May, 2007 (12) SCC 27, it was held by
Hon’ble Supreme Court of India that:
A tenant cannot claim adverse possession
while still recognized as a tenant. Adverse
possession can only be claimed once the
tenancy is terminated, at which point theDigitally signed
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tenant”s possession may become adverse to
that of the landlord.
59. The upshot of the above discussion is a person who claims
adverse possession must show by clear and unequivocal evidence
that his possession was hostile to the real owner and amounted to
denial of his title to the property claimed. In the present case, the
defendant has not lead evidence to prove his hostile possession. It
is also imperative to note that neither any Defence Evidence by
lead by the defendant nor the claim of owner by adverse
possession was set up by the defendant in a counter claim. The
defendant has not even mentioned as to when his possession
became adverse or hostile to the owner of the property. The
defendant has vaguely mentioned that he is exerting rights as
owner of the suit property for the last more than five decades. No
clear and unequivocal evidence was ever lead by the defendant to
prove his ownership by way of adverse possession.
60. It is also worth mentioning that admittedly, it is the case of
the defendant that he was a tenant to Sh. Sanauddin and paid rent to
him through his rent collector Sh. Faridi Ahmed. That Sh.
Sanauddin died issueless and Sh. Faridi Ahmed can’t claim any
right, title or interest in the estate of late Sh. Sanauddin. It has been
held in catena of judgments (as aforementioned) that tenants
cannot claim claim adverse possession against their landlords,
since their possession is permissive in nature. Thus, for this reason
also, the defendant can’t claim ownership by adverse possession.
61. Lastly, it is settled law (as aforementioned in several
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judgements of superior Courts) that there must be some overt act
on the part of the licensee indicating assertion of hostile title. Mere
continuance of unauthorised possession even for a period of more
than 12 years is not enough. It is not merely unauthorised
possession on termination of license that enables the licensee to
claim title by adverse possession but there must be some overt act
on the part of the licensee to show that he is claiming adverse title.
In the present case, there has been no overt act by the defendant to
show that he is claiming adverse title. Even no cogent and
clinching evidence has been lead by the defendant to prove on
record when he stopped paying rent to the landlord through his rent
collector and when his possession became adverse.
62. For the reasons aforementioned, the present issue is
decided against the defendant and in favour of the plaintiff.
ISSUE NO. 2 Whether the Court lacks pecuniary as well as the
territorial jurisdiction to entertain and try the suit? OPD
63. It is pertinent to mention that no such preliminary objection
as to territorial and pecuniary jurisdiction was ever taken by the
defendant in the written statement. According, the present issue is
strike out being wrongly framed and superfluous under Order XIV
Rule 5(2) CPC.
ISSUE NO. 3 Whether the suit of the plaintiff is liable to be
rejected on the ground that there is no cause of action against the
defendant? OPD
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64. The onus to prove this issue is on the defendant. Since Issue
no. 6, 7 and 8 have been decided against the plaintiff and in favour
of the defendant, accordingly the present issue is decided in favour
of the defendant and against the plaintiff as in absence of any right,
title or interest of the plaintiff on the suit property, there is no cause
of action with the plaintiff to file the present suit against the
defendant.
ISSUE NO. 4 Whether the suit of the plaintiff is barred under
Section 34 of Specific Relief Act, 1963? OPD
65. The onus to prove this issue is on the defendant. Neither any
evidence has been led by the defendant nor any explanation has
been furnished by the defendant. Section 34 of Specific Relief Act,
1963 provides for relief of Declaration. However, in the present
case, the plaintiff has not even claimed the relief of declaration.
Accordingly, the present issue is decided against the defendant and
in favour of the plaintiff.
ISSUE NO. 5 Whether the suit has not been properly evaluated
for the purpose of court fees and jurisdiction? OPD
66. The defendant has stated in preliminary objection in the
written statement that the plaintiff is not in possession of the suit
property and the court fees payable is on the market value of the
suit property and therefore, the plaintiff has not valued the suit
properly for the purpose of court fee and jurisdiction.
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67. On the other hand, it is the case of the plaintiff that the father
in law of the defendant was tenant of the predecessor in interest of
the plaintiff for monthly rent of Rs.3.31/- and thus, the plaintiff has
valued the suit on the basis of annual market rent of Rs. 39.72/-.
68. The case of the plaintiff is based on the premise that her
predecessor in interest (original landlord Sh. Sanauddin) was
landlord of the predecessor in interest (Father in law) of the
defendant. Therefore, the valuation for the purpose of court fees
and jurisdiction on the annual rent has been correctly mentioned by
the plaintiff qua the relief of possession in accordance with Section
7(xi)(cc) of the Court Fees Act. Accordingly, the present issue is
decided against the defendant and in favour of the plaintiff.
CONCLUSION
69. After exhaustive aforesaid discussion, this Court has come
to following irresistible conclusions that:
Sh. Baha-ud-din had no right, title or interest in the suit
property as held by Hon’ble Court of Ms. Sukhvinder
Kaur, Civil Judge in suit no. 478 of 1996 in case titled as
Mohan Singh vs Baha-ud-din and Ors. vide judgment
dated 24.02.2001 Sh. Baha-ud-din had no right, title or interest in the suit
property based on mere entry in the revenue recordCS SCJ No.601151/16 Page No.49 of 54
(Khasra Girdawari) Since Baha-ud-din had no right, title or interest in the suit
property, he could not transfer a better title to the plaintiff
than he himself had.
The plaintiff is not the owner of the suit property on the
basis of unregistered documents i.e., GPA (General Power
of Attorney and Agreement to Sell) executed by Sh. Baha-
ud-din in his favor.
70. In the present case, even though the defendant has not been
able to prove his defence of adverse possession, the plaintiff can’t
be held to be owner of the suit property straightaway. A decree of
possession cannot be passed in favour of the plaintiff on the ground
that defendants have not been able to fully establish their right, title
and interest in the suit property. The defendant, being in
possession, would be entitled to protect and save his possession,
unless the person who seeks to dispossess him has a better legal
right in the form of ownership or entitlement to possession. The
same has been held by Hon’ble Supreme Court in Smriti
Debbarma (D) vs Prabha Ranjan Debbarma 2022 LiveLaw
(SC) 19, where it was observed that:
“The defendants cannot be dispossessed
unless the plaintiff has established a better
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property. A person in possession of land in
the assumed character as the owner, and
exercising peaceably the ordinary rights of
ownership, has a legal right against the
entire world except the rightful owner. A
decree of possession cannot be passed in
favour of the plaintiff on the ground that
defendants have not been able to fully
establish their right, title and interest in the
Schedule ‘A’ property. The defendants,
being in possession, would be entitled to
protect and save their possession, unless the
person who seeks to dispossess them has a
better legal right in the form of ownership or
entitlement to possession.”
“This is mandated in terms of Section 101
of the Evidence Act, which states that
burden on proving the fact rests with party
who substantially asserts in the affirmative
and not on the party which is denying it.
This rule may not be universal and has
exceptions, but in the factual background
of the present case, the general principle is
applicable. In terms of Section 102 of the
Evidence Act, if both parties fail to adduce
evidence, the suit must fail. Onus of proof,
no doubt shifts and the shifting is a
continuous process in the evaluation of
evidence, but this happens when in a suit
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for title and possession, the plaintiff has
been able to create a high degree of
probability to shift the onus on the
defendant. In the absence of such
evidence, the burden of proof lies on the
plaintiff and can be discharged only when
he is able to prove title. The weakness of
the defence cannot be a justification to
decree the suit. The plaintiff could have
succeeded in respect of the Schedule ‘A’
property if she had discharged the burden
to prove the title to the Schedule ‘A’
property which squarely falls on her. This
would be the true effect of Sections 101 and
102 of the Evidence Act.
(emphasis supplied)
71. In Smriti Debbarma (supra), The Hon’ble Supreme Court
observed that the burden of proof to establish a title lies upon the
plaintiff as this burden lies on the party who asserts the existence
of a particular state of things on the basis of which she claims
relief. The Apex Court bench agreed with the finding that the
plaintiff on the basis of evidence and documents placed on record
has not been able to discharge the burden of proof to establish legal
ownership and title with respect to the subject property. The
Supreme Court observed that a decree of possession cannot be
passed in favour of the plaintiff merely because defendants were
not able to fully establish their right, title and interest in the
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property. Weakness of the defence cannot be a justification to
decree the suit.
72. Thus, it is a settled law that the plaintiff is required to prove
his case through clear, cogent, and convincing evidence. He cannot
rely on the defendant”s failure to present a defence or evidence to
succeed in his claim. It has been held in umpteen judgments that
the plaintiff must establish his right, title, and interest over the
property or subject matter in question. The absence of evidence
from the defendant does not relieve the plaintiff of his obligation to
prove his case. If the plaintiff fails to provide sufficient evidence to
support his claims, the suit is likely to be dismissed, regardless of
the defendant’s lack of participation or evidence
73. In the present case, the plaintiff has failed to prove his
ownership on the suit property. The plaintiff has not been able to
discharge the burden of proof to establish legal ownership and title
with respect to the subject property. The Weakness of the defence
of the defendant (claim by adverse possession) cannot be a
justification to decree the suit. The suit of the plaintiff doesn’t
stand on its own legs.
RELIEF
74. For the detailed reasons aforementioned, the suit of the
plaintiff is dismissed.
75. Decree sheet be prepared accordingly.
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76. File be consigned to the record room after due compliance.
Announced in the open
Court today on 31.05.2025.
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SAHIL KHURMI
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(SAHIL KHURMI)
Civil Judge-1, Central District,
Tis Hazari Courts, Delhi
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