9911796707
TMI Blog2011 (3) TMI 1817X X X X Extracts X X X X X X X X Extracts X X X X ..... Kaushik, the Appellant herein, had filed a suit for declaration and permanent injunction against Shri Hari Narain and Others, being Suit No. 03/04/93. It was the case of Appellant in the said suit that he was in peaceful physical possession of property No. 10/7, Yog Maya Mandir, Mehrauli, New Delhi since the year 1943, comprising of two rooms, one kitchen, one store, one bathroom and a partly demolished room on the ground floor and one room on the first floor. The site plan of the said premises was filed by the Appellant with the plaint. It was further the case of the Appellant that the possession of the aforesaid property was inherited by him from his late father Pt. Badlu Ram, who had the exclusive possession of the same for the last more than 50 years and had died on 19.12.1991. According to the plaint, the Defendants No. 1 to 3, namely, Shri Hari Narain, Shri Inder Narain and Shri Surinder Narain, were pandas of Shree Yog Maya Mandir and had taken over the administration of the said Mandir. 4. It was asserted in the plaint by the Appellant that he and his father had been performing puja and seva in the said Mandir on honorary basis for the last 50 years in the mornings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 03/04/93 filed by the Appellant: 1. Whether the Plaintiff is entitled for a decree of declaration of the suit property i.e. No. 10/7 Yog Maya Mandir, Mehrauli, New Delhi being in adverse possession? OPP. 2. Whether the Plaintiff is entitled for a decree of permanent injunction as prayed for? OPP. 3. Whether the suit is bad for want of necessary parties? OPD 4. Whether the suit is maintainable in its present form? OPP. 5. Relief. 8. At the time of the framing of issues, Issue No. 1 was ordered to be treated as a preliminary issue and subsequently Issue No. 3, viz., Whether the suit is bad for want of necessary parties? was also treated as a preliminary issue. 9. It deserves to be noted at this juncture that the issues were struck in the aforesaid suit subsequent to the filing of suit No. 85/03, which was filed by Shree Yog Mayaji Temple and Others, who were the Defendants in suit No. 03/04/93 filed by the Appellant. This suit No. 85/03 was filed on 21.05.2003 for possession and recovery of mesne profits from the Appellant and his brother Shri Sant Lal Kaushik. It was submitted by the Plaintiffs in the said suit that the subject matter of suit No. 03/04/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finally, instead of vacating the suit premises, he (Madan Lal Kaushik) filed a suit for declaration wherein he allegedly claimed ownership by adverse possession and sought a decree for permanent injunction along with a decree for declaration in respect of the suit premises. The said suit was still pending, being Suit No. 03/04/93, initially numbered as 325/93. Hence, this suit for recovery of possession from the Defendants and also for mesne profits for the unauthorized use and occupation of the suit premises by the Defendant No. 1 at the rate of ₹ 3,000/- per month. 10. In the written statement filed by him to the aforesaid suit (Suit No. 85/03), the brother of the Appellant herein, namely, Shri Sant Lal Kaushik, who was arrayed as the Defendant No. 2 in the suit, admitted the case of the Plaintiffs about his father having come into possession of the suit premises with the permission of the Plaintiffs as he used to serve water to the pilgrims and the worshippers and clean the Temple. It was submitted by him that after the death of his father, Shri Badlu Ram, in 1991, his brother (Madan Lal Kaushik) declined the offer of the Plaintiffs to perform the services which his fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid application under Order XII Rule 6 Code of Civil Procedure filed by Shree Yog Mayaji Temple that the learned Additional District Judge passed the impugned order decreeing the suit filed by Shree Yog Mayaji Mandir for recovery of possession of the portion of the suit property in the possession of the Defendant No. 1 and dismissing the suit filed by Madan Lal Kaushik, the Appellant herein. Aggrieved by the aforesaid judgment of the learned Additional District Judge, the present appeal has been preferred by Shri Madan Lal Kaushik. 14. Mr. Randhir Jain, the learned Counsel for the Appellant seeks to assail the judgment of the learned Additional District Judge on a number of grounds. He contends that the suit filed by Shree Yog Mayaji Temple and decreed by the learned Additional District Judge was not maintainable since the suit was filed in the name of the Temple, and the Deity, which is a juristic person, was not impleaded as a party to the suit through the next friend of the Deity. To buttress this contention, he relied upon two decisions of the Allahabad High Court in Bhagauti Prasad Khetan and etc. v. Laxminathji Maharaj and etc. reported in AIR 1985 All 228 and Pooranchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtions that the suit property situate in Khasra No. 1801, Village Mehrauli, New Delhi is owned by Shree Yog Mayaji Mandir and the said Temple is being shown as the owner in revenue records including the Khasra Girdwari; that the Plaintiffs No. 2 to 16 are the co-owners of the said property and are in overall control and management of the Mandir and the properties attached to it, and that the Plaintiffs No. 2 to 16 are the pujaris, who along with their family members have been looking after the affairs relating to the Mandir, performing Puja - Arti and Seva in the said Temple for the last five centuries as per their turn, having inherited the said right as pujaris from their ancestors. The suit in the name of the Temple was competent as the Deity was competent to bring the suit within the meaning of the word person . He relied upon the decision of the Punjab and Haryana High Court in Shri Guru Granth Sahib Khoje Majra v. Nagar Panchayat Khoje Majra, Vol. 1969 71 P.L.R. 844. 17. Mr. Gupta, the learned Counsel for the Respondents further contended that the pleas put forward by the Appellant were irreconcilable, mutually destructive and inconsistent with one another. Thus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issive in nature and, as already stated, a permissive occupant cannot claim adverse possession. 20. In the above context, reliance was placed by the learned Counsel for the Respondents on the following judgments: (i) Gaya Parshad Dikshit v. Dr. Nirmal Chander and Anr., AIR 1984 SC 930, wherein it was held that mere termination of the license of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his license. It is not merely unauthorized 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 possession. Mere continuance of unauthorized possession even for a period of more than 12 years is not enough. (ii) Sheodhari Rai and Ors. v. Suraj Prasad Singh and Ors., AIR 1954 SC 758, wherein it was laid down that permissive possession cannot be treated as adverse possession till the Defendant asserts an adverse possession. (iii)Annasaheb Bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs heirs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of ₹ 10,000/- per month if the premises were not vacated within 30 days. 21. Having perused the aforesaid precedents cited at the bar and gone through the records, the following position clearly emerges. The dispute between the parties arose on 29.08.1993. The Appellant himself has alleged in paragraph 5 of the plaint, in Suit No. 03/04/93 filed by him, that the Defendants had asked him to vacate the premises on the said date and he had filed the suit immediately thereafter. A perusal of the plaint in Suit No. 03/04/93 also shows that there is not a whisper in the plaint of ownership and the entire plaint focuses on the possession of the Appellant alone. In paragraph 1 of the plaint, it is stated that the Plaintiff is in peaceful physical possession and is also employed in St. Xaviers School, Civil Lines, Delhi. In paragraph 2 of the plaint, it is asserted that the possession of the abovesaid property was inherited by the Appellant from his late father Badlu Ram, who had the exclusive possession of the same for the last more than 50 years and had died on 19.12.1991. In paragraph 3 of the plaint, it is admitted that Badlu Ram was performing Puja and Seva in the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Respondents, the Appellant for the first time asserted ownership of the property by his father through a gift from Smt. Ram Pyari. However, no gift deed is pleaded nor any other document is placed on record to show that a gift of the disputed property had been made by Smt. Ram Pyari to the father of the Appellant. It also stands out like a sore thumb that while the Appellant in his suit impleaded three Defendants, namely, Shri Hari Narain, Shri Inder Narain and Shri Surinder Narain, the names of the legal representatives of Shri Hari Narain appear as Plaintiffs No. 2 and 3 in Suit No. 85/03, Shri Inder Narain appears as Plaintiff No. 9 in the said suit and Shri Surinder Narain as Plaintiff No. 8 in the said suit. In other words, the Appellant had impleaded as Defendants the very same persons who are arrayed as Plaintiffs in the suit filed by the Temple. It is also crystal clear that the suit is filed by the Deity as Shree Yog Maya ji Temple, and the Plaintiffs No. 2 to 16 merely claim to be pandas of the temple and responsible for the administration of the same. Thus, the suit evidently has been filed by the Deity and there can be no question of the suit being thrown out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are such which do not go to the root of the matter and are inconsequential in nature, making it impossible for the objecting party to succeed even if entertained. 26. It deserves to be noted at this juncture that Order XII Rule 6 Code of Civil Procedure was amended by the Amendment Act of 1976. Prior to the amendment, the rule enabled any party, at any stage of a suit, where admissions of fact had been made to apply to the Court for a judgment or order upon such admissions as he may be entitled to, without waiting for the determination of any other question between the parties. In the 54th Law Commission Report amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. Clearly, the amendment was brought about to further the ends of justice and to give the provisions of Order XII Rule 6 Code of Civil Procedure a wider sweep. 27. In the case of Uttam Singh Dugal Co. Ltd. v. Union Bank of India and Ors., (2000) 7 SCC 120, a contention was raised on behalf of the Appellant, Uttam Singh Dugal that admissions under Order XII Rule 6 Code of Civil Procedure should be only those which are made in the pleadings, and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i in the Temple. He has himself admitted that possession of the property was given to his father by one Smt. Ram Pyari, who was the widow of one of the pujaris of the Temple and it was given while his father was doing puja and seva in the Temple. The said occupation was thus a permissive user. No doubt, in the written statement in Suit No. 85/03, the Appellant has raised the plea of ownership by virtue of gift of the suit property to his father by Smt. Ram Pyari, but the same is clearly an afterthought, and that too a belated one, inasmuch as the said position has been taken by the Appellant ten years after the filing of his own suit. Even otherwise, the gift of immovable property cannot be proved by oral evidence without a written and registered gift deed. There is not even a whisper that such gift deed was executed or registered by Smt. Ram Pyari in favour of Badlu Ram or the Appellant herein. 31. The other stand adopted by the Appellant, viz., of ownership of the suit property by adverse possession for more than 12 years in hostility of its true owner, is also clearly unsustainable. To recapitulate, it is not the case of the Appellant that his father Badlu Ram was in adverse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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