Del HC | Claim of constructive possession not tenable where dispute is pending between person so claiming and person through whom possession is claimed

Delhi High Court: Sanjeev Sachdeva, J., dismissed a petition filed against the order of the trial court whereby the petitioner’s suit filed under Section 6 of the Specific Relief Act, 1963, for the restoration of possession was dismissed. 

The subject suit was filed by the petitioners claiming that they had been illegally dispossessed from the suit property. The original owner of the property was Mela Ram, who was married to Rani. Mela and Rani did not have any child born from the wedlock. It was submitted that they adopted one Swarn Kanta in 1947. The petitioners now claiming the possession of suit property were the husband and children of Swarn Kanta. Whereas, the respondent was the son of the brother of Rani. The case of the petitioners was that after the death of Mela Ram, Swarn Kanta (being the adopted daughter of Mela Ram and Rani) succeeded in half of the share in the subject property. Subsequently, Swarn Kanta also passed away. The petitioners claimed that all this while, Rani was in possession of the entire suit property but apart from her half share in the property, she was holding the other half on behalf of Swarn Kanta. Therefore, the petitioners claimed constructive possession of the suit property through Rani. 

In addition to that, it was also alleged that the petitioners visited the suit property on 19-1-2007 to mourn the demise of Rani; and since then, they were in physical possession of the suit property for a period of 12 days after which they were dispossessed by the respondent. It was thereafter that the petitioners filed the subject suit which was dismissed by the trial court. 

Per contra, the respondent submitted that Rani herself disputed the fact of adoption of Swarn Kanta as claimed by the petitioners. Further, Rani had transferred the suit property in favour of the respondent who had filed a suit for injunction against the petitioners. The petitioners had also filed counter claim challenging the sale deed executed by Rani, which counter claim was dismissed. The petitioners had not challenged that judgment. 

The High Court noted: “Admittedly, there was a dispute between the petitioners and Rani and a suit was pending with regard to the title in which Rani has contended that neither she nor her husband had ever adopted Swarn Kanta as their legal heir or that she had succeeded to the estate of her husband.” 

In view of such fact, the Court observed: “When on record there was a dispute pending between Smt. Rani and the petitioners, the contention of the petitioners that Smt. Rani was holding constructive possession even for them is not tenable. The petitioners have not been able to place on record anything to show that the petitioners had ever asserted that they were in constructive possession of the suit property through Smt. Rani”

Furthermore, the High Court was of the view that even if it is assumed that the petitioners were in physical possession of the suit property for 12 days from the date they reached there to mourn the demise of Rani, it could not benefit the petitioners in claiming the possession to the property. It was noted that the trial court has held that petitioners had gone to the suit property only for the purposes of performing last rites of Rani and to attend the relatives and visitors and not for the purposes of residing there and also not with the intention of retaining the possession of the suit property. 

Relying on the Supreme Court decisions in Poona Ram v. Moti Ram, 2019 SCC OnLine SC 91 and Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, the High Court held that the possession of 12 days and that also for the purposes of mourning, attending to the guests and for performing the last rites cannot be held to be settled possession. It cannot be held that the petitioners were ever in physical possession of the subject property for the purposes of settling in possession of the subject property. 

In such view of the matter, the High Court found no reason to interfere with the order of the trial court. [Ram Prakash v. Raj Kumar, 2020 SCC OnLine Del 78, decided on 06-01-2020]

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