KHEM CHAND Vs. RAM MEHAR

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the Trial Court dated 30.10.1995 decreeing the suit of the respondent/plaintiff for possession with respect to the suit property being House No.358, Village- Hastsal, Delhi.

(2.) THE facts of the case are that the respondent/plaintiff was the owner of the suit property and the appellants/defendants being his relations, were provided for a house behind the suit property for residence being House No. 353 belonging to some other person. Electricity was however provided by the respondent/plaintiff from connection in the suit property. The respondent/plaintiff was not staying in the suit property because he was in Government service and was transferred to Salhawas, Haryana and therefore had built a house in village­ Jakhala where he was staying. Since the meter reader had to come for taking of the readings for the electricity consumption, which was consumed by the appellants/defendants from the meter installed in the suit property, one key of the suit property was provided by the respondent/plaintiff to the appellants/defendants. The respondent/plaintiff however found in February, 1991 that his lock was removed and the appellants/defendants had put their own lock. The subject suit for possession therefore came to be filed. The appellants/defendants in the Trial Court laid down two basic defences. First was that the property was purchased by the appellants/defendants from the respondent/plaintiff for a sum of Rs.6,500/-. The second defence was that of the plea of adverse possession.

(3.) THE Trial Court with respect to the issues no. 3 and 4 has given a finding that the appellants/defendants have failed to prove their case of having purchased the property inasmuch as no proof was filed on record of the alleged consideration of Rs.6,500/- being paid. It was also pleaded that if the appellants/defendants had really purchased the property, they would have at least an electricity bill in their name, however, even that was not so. To the aforesaid, I may add that rights in an immovable property can only be transferred by means of a registered instrument under Section 17(1)(b) of the Registration Act, 1908 and admittedly there is no registered instrument in terms of Section 17(1)(b) of the Registration Act, 1908 for the appellants/defendant to claim ownership of the suit property thereupon. Leave alone a registered instrument there is not even a written document. Even with respect to the issue of adverse possession, the appellants/defendants miserably failed to prove the same inasmuch as except long possession, the appellants/defendants had nothing in their favour as to either house tax being paid by them or electricity, water connection being in their name and so on. It is settled law that long possession is not an adverse possession. A plea of adverse possession is looked upon strictly by the Court inasmuch as the adverse possession commences in wrong and is continued against a right. Further, the appellants/defendants have failed to lead evidence that they had affirmed their adverse possession in the suit property by giving the necessary intimation to the owner being the respondent/plaintiff. The Supreme Court in the recent judgment of Chatti Konati Rao vs. Palle Venkata Subba Rao, 2010 (14) SCC 316 has held that the plea of adverse possession must be open and hostile enough to be capable of being known by the parties interested in property. The party interested in the property obviously is the respondent/plaintiff and therefore, once the appellants/defendants have miserably failed to prove any act or fact to the knowledge of the respondent/plaintiff of the claim of the appellants/defendants of adverse possession, the claim of adverse possession had to necessarily fail. In the judgment of Chatti Konati Rao (supra), the Supreme Court in Paras 12 to 16 has held as under:-