Delhi High Court: Asha Menon, J., held that,

“Mere fact that the boundary walls had been built by the defendants cannot be termed as a hostile act against the true owner as the walls had been constructed to define the properties of the defendants after the family partition took place.”

The plaintiffs had filed the suit seeking recovery of possession, mesne profits, the permanent and mandatory injunction against the defendants, their agents, servants or any other person claiming through them in respect of property situated in the revenue estate. The property was bounded by 20 feet high brick walls on all sides.

It was stated to have built up portion comprising of two halls, three rooms, two separate bathrooms, two separate kitchens, a temple and a garden and a covered parking space (suit property).

The defendants were the relatives of the plaintiffs. It was claimed that the suit property had come into the share of Sudhir Kumar Tyagi on the basis of a partition which took place vide a decree passed by the Revenue Assistant in a suit being preferred under Section 55 of the Delhi Land Reforms Act, 1954.

Plaintiffs had asked the defendants to vacate the suit property, but the defendants refused to vacate the same. Further, the plaintiff claimed that despite the occupation of the suit property by defendants, Sudhir Kumar Tyagi had retained in his possession an office latrine, kitchen and a storage room near the northern side of the suit property towards the MCD Primary School which he used for his personal purposes, and which was placed under his lock and key and contained his old business records.

The covered parking area was also being used by the plaintiffs and their visitors. However, by the end of 2017, the relationship again deteriorated. Thereafter, Sudhir Kumar Tyagi expired on 24-05-2018.

It was averred that the plaintiffs taking hold of the situation, in 2019 made a joint request to the defendants to vacate the suit property but they requested for more time as their own residence was under renovation. A promise was made by the defendants that they would vacate the suit property by February or March, 2020 but till date they had failed to do so taking advantage of the Covid-19 pandemic situation.

In view of the above circumstances, the present matter approached the Court.

Analysis, Law and Decision

Identity of Property

The High Court noted that there does not appear to be any doubt as to the identity of the property in respect of which the plaintiffs have claimed possession from the defendants and in respect of which the defendants have asserted title by adverse possession.

Court stated that in view of the circumstances of the present case, raising of a doubt on the number of the suit property was insufficient to deny consideration of the application under Order XII Rule 6 CPC.

There was another aspect that needs to be noted before proceeding further and that is with regard to the admission that the electricity and water meters still stand in the name of the predecessor-in-interest of the plaintiffs. The Bench expressed that the defendants had not been able to file on record any electricity bill that was raised in their names at the suit property for running their Sports Complex.

Law | Order XII Rule 6 CPC

While considering an application under Order XII Rule 6 CPC, the law is that the powers are discretionary and further, that for the Court to exercise its powers under the said provisions, admissions should be clear, unambiguous and unequivocal.

In the decision of this Court in Rajeev Tandon v. Rashmi Tandon, 2019 SCC OnLine Del 7336, Court had considered the pleas of the defendant raised in that case to find out whether it disclosed any meaningful defence or not. The absence of material particulars in the pleadings and presence of unsubstantiated pleas and vague averments were found sufficient to hold that there are admissions in the pleadings to pass a decree under Order XII Rule 6.

While disposing of an application under Order XII Rule 6 CPC, the Court was fully justified in considering the averments in the written statement to see whether essential facts had been pleaded or whether defence was a complete moonshine, requiring the Court to not send the case for trial.

In the present matter, the defendants had accepted the fact that this suit property had fallen in the share of late Sudhir Kumar Tyagi, the plaintiffs’ predecessor-in-interest, on the partition of the suit property and he had been its owner since then.

In view of the fact that the parties were on good terms, as per the averments in the written statement, late Sudhir Kumar Tyagi had permitted the defendant 1 to use the plot. Thus, the possession had not been a result of wrongful dispossession of the rightful owner, when the defendant 1 came into the premises.

“…long possession will not affect the title of the true owner. Nor would the lack of use of the property by the owner, for a long time, affect his title.”

Bench added that it was only when the defendants start asserting hostile title that the clock will start ticking. Strangely, in the entire written statement, the defendants did not state any definitiveness as to dates since when they had started asserting their hostile title.

Adding to the above, High Court stated that defendant 1 did not assert independent and hostile title to late Sudhir Kumar Tyagi.

Further, defendants had to specifically plead with sufficient clarity when the possession became adverse and the exact date when adverse possession commenced and whether this fact was let known to the real owner.

“…a fundamental plea to submit the claim of adverse possession is missing and the burden on the defendants has not been discharged.”

Thus, it was the defendant who had to plead and only when pleadings exist could he prove the three classic requirements of “nec vi, nec clam, nec precario”. The non-disclosure of the starting point of limitation against the plaintiffs being not pleaded clearly, the defence of adverse possession is “total moonshine”.

The application under Order XII Rule 6 CPC was allowed. [Monika Tyagi v. Subhash Tyagi, 2021 SCC OnLine Del 5400, decided on 17-12-2021]

Advocates before the Court:

Mr Ravi Gupta, Senior Advocate with Mr Vidit Gupta, Mr Sachin Jain and Mr Himansh Yadav Advocates

Mr Rajat Aneja and Ms Rajula, Advocates

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