15. Every member may nominate a person or persons to whom on his death his shares shall be transferred...If not admitted to the membership the nominee or nominees shall be paid the value of the shares or interest subject to the provisions of bye-law 9.."
It is argued that the above indicate that a member, during his lifetime, can transfer his share; nominate someone to succeed, after his death. Reliance is placed on the judgment in Kitty Puri (supra) and Santosh Kakkar v. Ram Prasad & Ors., 1998 (1) AD (Del) 938 to say that when land, particularly leasehold land, is not allotted by a society, the right of such a member, who dies before the allotment, does not form part of his estate. The contesting defendants argue therefore, that upon Dan Singh Bisht‟s death, he was not allottee in respect of any plot, and therefore, the nomination of Parwati Devi resulted in her entitlement as successor, and the subsequent allotment in her favour, after her admission as member of the society, vested the right and interest to the suit plot, exclusively in her favour, which she legitimately transferred and assigned to the first defendant, her husband.
50. The plaintiff and supporting defendants argue that a nomination in favour of one heir, or in favour of a stranger does not result in exclusion of the rights to the benefits flowing from membership (of a society) to the other heirs. They rely on Section 27 of the Bombay Co- operative Societies Act, 1925, previously in force in Delhi, as well as Section 26 of the (now repealed) Delhi Co-operative Societies Act, 1972 and Section 28 of the Delhi Co-opeative Societies Act, 2003, all of which are in pari materia. Section 27 (of the Bombay Act) reads as follows:
"Section 27(1). On the death of a member of a society such society may within a period one year from the death of such member transfer the share or interest of the deceased member to a person or persons nominated in accordance with the bye-laws of the society, CS(OS) No.2133/1989 Page 27 if duly admitted a member of the society in accordance with the rules or the bye-laws of the society, or if there is no person so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member, if duly elected a member of the society or may pay such nominee, heir or legal representative as the case may be a sum representing the value of such members share or interest as ascertained in accordance with the rules of bye-laws.
Provided that such nominee, heir or legal representative, as the case may be, may require that payment shall be made by the society within one year from death of the member, of the value of the share or interest of such member, ascertained as aforesaid.
(2) A society shall subject to the
provisions of section 25 and unless presented by an order of a competent court, pay to such nominee, heir or legal representatives, as the case may be, all other moneys due to the deceased member from the society.
(3) All transfer and payments made by a society in accordance with the provisions this section shall be valid and effectual against any demand made upon the society by any other person."
The plaintiff also relies on the judgment of the Supreme Court in Smt. Sarbati Devi v. Smt. Usha Devi, 1984 (1) SCC 424 and contends that mere nomination of someone does not disturb the line of succession, which has to follow according to the law of inheritance.
51. The facts here point to membership of late Dan Singh Bisht, in the society; his having paid not only the share money, but opting for a 1200 square yard plot, and most importantly, having paid all the amounts demanded (Rs. 28,194/)) towards cost of the plot, by the time of his death. The materials also suggest that the balance of about Rs. 5000/- was paid after his death, and after Parwati Devi was accepted as member of the society in his stead. Therefore, as on the date of his death, unlike in Santosh Kakkar (where a miniscule amount had been paid) substantial consideration or the lions share of the plot money had been paid.
52. The Supreme Court, in Smt. Sarbati Devi (supra) emphasizing that nomination does not derogate from the normal line of succession, according to laws of inheritance (though in the case involving nomination to receive the proceeds of a life insurance policy) held that:
"We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer CS(OS) No.2133/1989 Page 28 gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them."
This view was reiterated in Vishin N. Khanchandani and Anr. v. Vidya Lachmandas Khanchandani and Anr., 2000 (6) SCC 724 where the Supreme Court observed that:
"The High Court equated a nominee to the heirs and legatees of the assured and proceeded to hold that the nominee succeeded to the estate with all 'plus and minus points'. We find it difficult to treat a nominee as being equivalent to an heir or legatee.... In the light of what has been noticed hereinabove, it is apparent that though the language and phraseology of Section 6 of the Act is different from the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same. The Act only makes the Provisions regarding avoiding delay and expense in making the payment of the amount of the National Savings Certificates, to the nominee of the holder, which has been considered to be beneficial both for the holder as also for the post office. Any amount paid to the nominee after valid deductions becomes the estate of the deceased. Such an estate devolves upon all persons who are entitled to succession under law, custom or testament of the deceased holder. In other words, the law laid down by this Court in Sarbati Devi case ((
1984) 1 SCC 424 : 1984 SCC (Tax) 59) holds the field and is equally applicable to the nominee becoming entitled to the payment of the amount on account of National Savings Certificates received by him under Section 6 read with Section 7 of the Act who in turn is liable to return the amount to those in whose favour the law creates a beneficial interest, subject to the provisions of sub-section (2) of Section 8 of the Act."
In a later judgment Gayatri De v. Mousumi Co-operative Group Housing Society, 2004 (5) SCC 90, the Supreme Court again held as follows:
"The appellant being one of the heirs of the deceased member, in our opinion, is entitled to succeed to the estate of the deceased and that being so, the right, title and interest of the deceased member in the apartment of the Society devolves upon his heirs and the aforesaid
Section 85(3) and Rule 135(3) cannot have any application in the instant case."
In Pran Nath Mallick v. Dr. Netar Prakash Mallick & Ors., 2000 III AD (Delhi) 843, a Division Bench of this Court adopted an identical approach. It was held (in paragraph 12 of the Report) an allotment of a plot once made to a member of a society, it cannot be said that his nominee or legal representative is not entitled to hold or inherit the plot so allotted and that after allotment is made, legal rights get vested in the member and the society cannot stop the inheritance of those rights on the legal representatives and heirs.
CS(OS) No.2133/1989 Page 29
53. In Manmohan Kishan Malik (supra) this Court followed the decision in Sarbati Devi (supra) repelling the argument that nomination to membership of a co-operative society does not displace the right of heirs, stated as follows:
"There is yet another reason for not disturbing the aforesaid consistent dicta. The Supreme Court in Smt. Sarbati Devi (supra) has also held that when all along the High Courts have taken the view that mere nomination does not deprive the heirs of their rights and when inspite thereof the Parliament has not chosen to make any amendment to the act, in such situation, unless there are strong and compelling reasons to hold all these decisions to be erroneous, the court should be slow to take a different view."
In view of the above discussion, it is held that the nomination of Parwati Devi, which resulted in her applying and becoming a member of the society, did not confer exclusive rights upon her; she was one of the heirs of late Dan Singh Bisht, and could not have transferred or alienated the entire property, without express consent and authorization of the other heirs, i.e the other parties to the present suit. Issue Nos. 7 and 8 are accordingly answered against the contesting defendants, and in favour of the plaintiff.
54. The onus of proving this issue, i.e. ownership of the suit property is upon the contesting defendants, who rely upon the documents such as Ex.P-3 dated 08.02.1965 where Parvati Devi consented to be member of the Society (Ex. P-6) dated 18.02.1965 where she applied for membership and declared that she was eligible to do so and the Society‟s response dated 12.04.1965 (Ex. P-7). It is further argued by the contesting defendants that Parvati Devi transferred her membership in favor of the first defendant, her husband, sometime in 1966 which was accepted. In support, reliance is placed upon Ex. D-3/5, i.e. letter by the Society intimating the first defendant about the further amounts payable by him and also requesting him for taking action for execution of Perpetual Sub-Lease Deed and the Perpetual Sub Lease (Ex. D-3) dated 28.06.1967.
55. So far as the ownership and title to superstructure is concerned, reliance is placed by the contesting defendants on the documents where the first defendant informed the Government about the likely cost of construction - Ex. D-3/13, approval of the Central Government (since the first defendant was an All-India Service officer) belonging to the Indian Police Service (IPS), dated 20.06.1972, for construction of the house at the estimated cost of Rs. 1,22,150/- (i.e. Ex.
CS(OS) No.2133/1989 Page 30 D-3/14). Other documents such as Ex. D-3/15 dated 30.01.1973 intimating that the cost of construction had gone up and the Central Government‟s sanction permitting raising of additional loan dated 29.05.1973 (Ex. D-3/16) as well as the late first defendant‟s intimation of the source of funds extended to the extent of Rs.1,85,700/- dated 14.01.1976 (Ex.D-3/17) are relied upon. The defendants, however, rely upon the Ex. D-3/7, D-3/8 and D-3/9, i.e. applications to the Municipal Corporation of Delhi and C and D forms issued by the MCD dated 04.06.1972 and 04.12.1972. Ex. D-3/11 dated 06.05.1976 evidences that the first defendant had deposited the charges payable to MCD. Ex.D-3/12 dated 06.05.1976 is the Occupancy Certificate issued by the Municipal authorities, to contend that late first defendant had raised amounts against mortgage Life Insurance Policies and also borrowings from his relatives, Ex. D-3/18 dated 03.06.1972 has been relied upon. Other corroborative evidence such as correspondence with the Income Tax authorities towards valuation of the suit property and the building constructed (Ex. D-3/22 and D-3/23) have been placed on the record. Apart from these, a series of other documents, such as Electricity Bill receipts issued by the Society towards payment of ground rent, copies of House Tax Receipts etc. (Ex. D-3/26A to D-3/58) have been produced.
56. The plaintiff and the supporting defendants argue that the first defendant, not being an owner could not have acquired title by mere assignment, gift or transfer from late Parvati Devi as she in turn was not exclusive owner of the suit property. It is submitted that resultantly, a vendee such as the first defendant cannot acquire better title than his vendor or seller. It is further argued that since Parvati Devi only acquired the suit property in her capacity as a nominee and was obliged to hold it on behalf of the others, any transfer as is sought to be in the first defendant‟s favor is not sustainable and that in any event, execution of the Perpetual Lease Deed did not result in conferment of a superior right to the first defendant.
57. This Court has already rendered findings in respect of Issue Nos. 7 and 8 that Parvati Devi was a mere nominee, in the facts and circumstances of the case. However, as regards the maintainability, the Court has concluded that the suit is not maintainable and is also time-barred and further that the plaintiff and supporting defendants are estopped from claiming the relief. Though these would be dispositive of the suit, the Court has to nevertheless notice the effect of the materials and pleadings placed on the record.
CS(OS) No.2133/1989 Page 31
58. Although the contesting defendants argue that Parvati Devi had assigned or transferred her right, title and interest in favor of the late first defendant, in 1966, no documents in that regard is forthcoming. There is no Gift or Relinquishment Deed in favor of the late first defendant or otherwise brought on the record. Similarly, the copy of a letter or intimation assigning Parvati Devi‟s right to the first defendant as intimated to the Society too has not been revealed to the Court. Thus the manner by which the membership or the benefit of the membership towards allotments of the plot occurred is not known. However, what stands proved is the fact that the Society consented to the arrangement and consequently a registered Perpetual Lease Deed by the paramount lesser, i.e. the President of India and late first defendant on 28.06.1967. That is an irrefutable fact; the plaintiff has chosen not to impeach the said registered Lease Deed after it was revealed during the pendency of the proceedings. In these circumstances, it is concluded and found that the first defendant became the owner of the suit property with effect from 28.06.1967 and was treated as such by the Society, the lessor. This is apparent from the several copies of several receipts towards ground rent paid by the late first defendant to the Society in respect of the property.
59. As far as the building and superstructure raised on the suit plot is concerned, there is overwhelming evidence in the form of declaration issued to the Central Government, seeking permission to raise the construction, intimation regarding additional cost of construction, disclosure as to the sources from which funds were raised by the late first defendant and the sanction for construction sought from the MCD and lastly, Occupation Certificate issued by the MCD. The first defendant also revealed these details to the Income Tax authorities as is evident from the correspondence exchanged with them; he paid municipal taxes and also bore the electricity and water charges. All these establish that the building and construction put-up on the plot between 1972, 1976 was at the expense of the late first defendant. The third defendant has, in his affidavit, deposed about these facts in detail and also mentioned that the premises had been let-out sometime without any hindrance by the plaintiff and supporting defendants. It is, therefore, held that the ownership of the plot and the superstructure is that of the contesting defendants. The issue is accordingly answered against the plaintiff and in favor of the contesting defendants.
60. The contesting defendants submitted that the plaintiff cannot rely on the argument that possession by Smt. Parvati Devi was, in law theirs. Even if the plaintiff had the said alleged right, she has obviously lost it owing to her inaction and complete disregard of her own interest for more than 23 years. It is submitted that the following would completely dislodge the false claim of the plaintiff and other co-heirs and prove the open repudiation of their title by Smt. Parvati Devi and Sh. L.S. Bisht as well as the long, continuous and exclusive possession of the subject property by Sh. L.S. Bisht and his family members without any objection or demand by the plaintiff and other co-heirs:
(a) In her letter dated 08.02.1965 (Ex. P-3/D2-4), Smt. Parvati Devi, while responding to the invitation of the Society to become its member in place of her father, stated
Since my husband is a Central Government servant serving directly under Government of India, his tour of duty in Delhi is likely to be of a very prolonged duration. We are, therefore, greatly interested in having a plot in New Delhi where we hope to build a cottage for our residence.
This letter filed by the plaintiff, clearly evidences the intention of Parvati Devi to take the proposed plot for her residence and not for or on behalf of other legal heirs.
(b) On 18.02.1965, Parvati Devi in her letter (Ex. P-5/D 2-4), replied in negative to the query raised by the Society as to whether there was any Will or legal document having a bearing on the assets of Shri Dan Singh Bisht.
(c) Smt. Parvati Bisht by her letter dated 18.02.1965 (Ex. P-6/D 2-4) nominated her husband, Sh. L.S. Bisht as her nominee. If the plaintiff deemed herself to be the co-owner of the subject property, then appointment as nominee of Sh. L.S. Bisht, who was outside the line of succession of Shri Dan Singh Bisht, should have been objected to by the plaintiff as breach of duty by Parvati Devi as the purported constructive trustee.
(d) In 1966, Parvati Devi transferred her membership to Sh. L.S. Bisht, Defendant No.1.
(e) On 28.06.1967, a registered Perpetual Sub-lease was executed between the society, the President of India acting through the Land and Building Department of Delhi Administration and first Defendant in respect of the suit property. The first Defendant, not being a legal heir of Parvati Devi under Sections 14 and 15 of the Hindu Succession Act, could not have held the suit property in trust on behalf of the other legal heirs of Thakur Dan Singh Bisht.
CS(OS) No.2133/1989 Page 33
(f). Assuming, while denying, that the plaintiff or the other co-owners had no knowledge of the subsequent transfer of membership of the Society and/or execution of perpetual lease deed dated 28.06.1967 in favor of Defendant No.1 and that the plaintiff continued to assume that the property was held by Smt. Parvati on behalf of all co-owners, it is submitted that even after Parvati Devi passed away on 09.12.1975 and the contesting defendants continued with the possession of the subject property, for more than 13 years, i.e. till the filing of the suit on 07.08.1989, there was no assertion of the purported right of co-ownership by the plaintiff.
(g) The first defendant dealt with the land as his own since 28.06.1967, i.e. more than 23 years. He held himself out to be the sole and exclusive owner to the world at large, of the land and as also the construction thereon which was done from 1972 to 1974 and in respect of which a completion certificate was granted in his name in 1976. The plot was purchased by him from his own funds and the construction too was made by him from loan and his own funds after obtaining permissions as he was a Government servant. He corresponded with the Government departments holding himself out as the sole and exclusive owner of the property. He has paid the entire House Tax which is in his name since the beginning till date. Water and electricity connections in the premises are also in his name. He let out the property to the tenant and collected rents as the sole-owner/landlord of the premises.
61. The contesting defendants submit that bare allegations of oral demand for partition by the plaintiff are baseless, wholly unsubstantiated and devoid of any merit or credence. Further, the plaintiff‟s allegation that she contributed in the construction of the subject property is also not supported by any evidence. The plaintiff was always aware of the ownership of Sh. L.S. Bisht of the subject property and in any event, she and other legal heirs acquiesced into the same. Thus, Defendant No.1 also became the owner of the subject premises being the plot and the superstructure by law of adverse possession and prescription.
62. It is lastly contended that the plaintiff‟s argument that by raising a plea of adverse possession, the first Defendant, he would be deemed to have denounced his title and absolute ownership is misconceived, and is in ignorance of the distinction between adverse possession and adverse possession by prescription. It is submitted that while the former rests on a hostile possession under a claim of title to the exclusion of the true owner while the latter rests on the presumption of a grant of incorporeal rights ripening into title after a lapse of years.
CS(OS) No.2133/1989 Page 34
63. The plaintiff argues that generally, the plea of adverse possession has traditionally been frowned upon, but of late there is an increasing reluctance to accept that plea. They cite the decisions reported as P.T. Munichikkanna Reddy v. Revamma, 2007 (6) SCC 5 and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harija, AIR 2009 SC 103. In the latter judgment, it was held that:
"Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This is substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession...."
64. It is argued that unless there is knowledge of the true owner - which means he is the owner and someone else is in possession - adverse possession does not begin. Reliance is placed on the decision reported as Charles Edward Victor Seneviratne Corea v. Mahatantrigey Iseris AIR 1914 PC 243, to the following effect:
"......Entering into possession, and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognized by Wood, V.C. in Thomas v. Thomas 2 K&J 79 holds goods: "Possession is never considered adverse if it can be referred to a lawful title."
Similarly, the decision in P.T. Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753 was relied on, where the Court held that "Thus, there must be intention to dispossess." And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. Next, the judgment in T. Anjanappa v. Somalingappa, 2006 (7) SCC 570, to the following effect, was relied on:
CS(OS) No.2133/1989 Page 35 "The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court‟s judgment is clearly unsustainable..... There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right.
Therefore, it will have to be kept in mind the Courts around the world are taking an unkind view toward statutes of limitation overriding property rights."
65. It is next submitted that as between co-owners, the hostility of the one claiming exclusive ownership due to adverse possession has to be more explicit. The plaintiff and supporting defendants rely on Karbalai Begum v. Mohd. Sayeed and Anr., AIR 1981 SC 77 particularly the following observations:
".......It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact be admitted, then the legal position would be that Mohd. Basir and Mohd. Rashid, being co-sharers of plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees. The learned Counsel appearing for the respondent was unable to contest this position of law. In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff."
To the same effect, the decision in Mohd. Zainulabudeen (since deceased) by Lrs. v. Sayed Ahmed Mohideen and Ors., 1989 (2) SCALE 1381 was relied, where it was held that:
"Thus it is a settled rule of law as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to construe ouster......"
Similarly, P. Periasami (dead) by Lrs. v. P. Periathambi, (1995) 6 SCC 523; Md. Mohammad Ali (dead) by Lrs. v. Sri Jagadish Kalita & Ors., (2004) 1 SCC 271; Govindammal v. R. Perumal Chettiar and Ors., (2007) 11 SCC 600 ; and Annasaheb Bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. & heirs etc., (1995) 2 SCC 543 were relied on.
66. Here, the facts on record reveal the following:
(iii) The society granted membership to the late first defendant;
(iv) A registered Perpetual Deed, conveying rights and interest, in respect of the suit plot, was executed in favour of the late first defendant, on 28th June, 1967;
(v) The late first defendant constructed a residential house, by using his money, on the suit property, in 1972-74;
(vi) The Municipal Corporation of Delhi issued sanction for the proposed plan, and occupation certificate permitting the first defendant to occupy in the premises;
(vii) The first defendant continuously paid ground rent to the society, in respect of the suit property, in his exclusive name;
(viii) He also paid water, and electricity charges in respect of the suit property;
(ix) The suit property was let out by the first defendant, who collected rents from tenants, from time to time
67. As against the above evidence, the plaintiff and the supporting defendants rely on the following contentions and circumstances:
(i) Parwati Devi secured membership, and the right to allotment in her capacity as nominee, and not exclusive heir of late Dan Singh Bisht;
(ii) The society allowed transfer of membership, which cannot bind them (the other heirs) or compromise their legal rights as heirs of Dan Singh Bisht;
(iii) The registration of the Perpetual Lease Deed would only amount to late first defendant stepping into the shoes of the previous owner, i.e. his wife. He could not have acquired better title, despite registration of the lease deed or construction of the property.
impermissible in the facts of this case, and in any case is inconsistent with the independent assertion of acquisition of title by ownership, by the first defendant.
68. The following averments as to the right to the suit property have been made by the plaintiff:
"15. That the Defendants No.1 to 4 have illegally and wrongfully taken the control of the aforesaid joint property bearing No. A-20, West End, New Delhi, and as such the aforesaid property ought to have been devolved upon all the heirs/ descendants of Late Thakur Dan Singh Bist, which defendants have got absolutely no legal right or authority to do so. As such, the aforesaid property is a joint property, therefore, the same is liable to be partitioned.
15. That in view of the aforesaid factual position of the matter in controversy, the plaintiff is entitled to her share in property No.A-20 west End New Delhi, and also the land at Pithoragarh, District, Pithoragarh U.P. with the other defendants in equal share being the rightful co-owner thereof, and as such, the plaintiff is entitled to her shares in the properties which have been detailed and depicted in Schedule A attached to the plaint.
16. That the defendants No.2 to 4 have been enjoying the profits and income yielded from property No. A-20 West End, New Delhi, and also the land at Pithoragarh, U.P. and the plaintiff has learnt that the aforesaid property at New Delhi was rented out by the defendants No.1 to 4 some individual of a very high status at a very high rent. Thereafter, the same was got vacated from him by the defendants No.1 to 4. Thus the value of the property at New Delhi, at present has gone much higher after getting it vacated. The entire rental income accrued from the aforesaid West End Property has been pocketed by the defendants No.1 to 4 and the account of the rental income so accrued and pocketed by the defendants No.1 to 4 is also liable to be rendered by them to the plaintiff and the other defendants.
17. That the defendants have been deliberately avoiding the partition of the properties mentioned in Schedule "A" attached to the plaint on frivolous pretest and excuse with the mala fide intent to somehow usurp the rightfully claim and share of the plaintiff and the other defendants.
18. That in view of the aforesaid factual position of the case the plaintiff is entitled to her share in an equal way which the other defendants in the aforesaid properties detailed in Schedule A being the joint and co-owner thereof."
69. The relevant part of the written statement reads as follows:
"4. That late Thakur Dan Singh Bist nominated his daughter Smt. Parwati Devi wife of Defendant No.1 to be member of the society after his death. In pursuance to the nomination Smt. Parwati Devi became the member in 1965, which membership was CS(OS) No.2133/1989 Page 38 transferred by her to the Defendant No.1 in 1966. Under the law as applicable, nomination facility having been done and being valid, the right to membership did not devolve on anyone else except Smt. Parwati Devi. The suit is thus liable to be dismissed.
5. That the Defendant No. 1 has become owner of the subject land and the construction thereon by the law of adverse possession and prescription. The Defendant No.1 has dealt with the land as his own since 28.6.1967, i.e. more than 23 years. He has held himself out to be a sole and exclusive owner to the world at large of the land and as also the Construction thereon which was done from 1972 to 1974 and in, respect of which a completion certificate was granted in the name of the Defendant No.1 in 1976. The Plot was purchased by the Defendant No.1 from his own funds and the construction too was made by him from loan and own funds after obtaining permissions as he was a Government Servant. The Defendant No.1 has corresponded with the Government Departments holding himself out as the sole and exclusive owner of the property. He has since the beginning till date paid the entire House-Tax which is in his name since the beginning till date. Water and Electricity Connections in the premises are also in his own name. He letted out the property to the tenants and collected rents as the sole owner- landlord of the premises. The suit is thus time barred and the Defendant No.1 has become the owner of the subject premises being the plot and the super-structure by law of adverse possession and prescription.
7. That the Plaintiff is estopped from filing the present suit. To the plaintiff‟s knowledge as also the knowledge of the other legal heirs of late Thakur Dan Singh Bist the Defendant No.1 constructed upon the plot of land on the ground that he is the sole and exclusive owner of the said land. He was not obstructed at any stage by anyone. Thus, till the construction exists, the Plaintiff as also the other legal heirs of late Thakur Dan Singh Bist are estopped from Claiming any right to the property or the right to disposes the Defendant No.1 his agents, successors and assigns etc."
70. It is clear that the pleas taken are in the alternative. The plea of adverse possession is taken in addition to the other plea of the first defendant having acquired title pursuant to the execution of the Registered Perpetual Lease Deed. In the circumstances, the court does not discern any mutually destructive pleas.
71. The plaintiff‟s submissions regarding there being no presumption of adverse possession by one co-sharer against another, cannot be quarreled with. However, in this case, the property is not co-parcenary or Hindu Undivided Family property. There was no possession, physical, or constructive, at any point of time, during the lifetime of Dan Singh Bisht. Possession of the suit property was handed over to the late first defendant, after membership was granted to his wife, and later, entered in his name. The finding of this court that the plaintiff was never in constructive possession, has become final, and is a matter of record; the plaintiff has accepted the same. In the circumstances, the question is whether the first defendant‟s possession - undeniably CS(OS) No.2133/1989 Page 39 actual physical possession, was hostile, either openly, or constructively, against the plaintiff and the other heirs of Dan Singh Bisht.
72. In Karnataka Board of Wakf v. Government of India and Others, (2004) 10 SCC 779, the basic ingredients of adverse possession, were explained, in the following terms :
"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
73. In S.M Karim Alias Tamanna Sabeb v. Mst Bibi Sakina ., AIR 1964 SC 1254 the Supreme Court explained how possession is deemed to be adverse, and the requirements of proving it:
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
74. The decision in Uppalapati Veera Venkata Satyanarayanaraju and Anr. v. Josyula Hanummamma and Anr., (1963) 3 SCR 910, indicates that if a tenant makes an attornment in favour of a person who is not the true owner and follows by paying the rent to him, such a person must be held to have effective possession. The question of adverse possession by a co-sharer was dealt with in Shambu Prasad Singh v. Mst. Phool Kumari and Ors., (1971) 2 SCC 28, where the Court held as follows:
"On the question of adverse possession by a co-sharer against another co-sharer, the law is fairly well settled. Adverse possession has to have the characteristics of adequacy, continuity and exclusiveness. The onus to establish these characteristics is on the adverse possessor. Accordingly, if a holder of title proves that be too had been exercising during the currency of his title various acts of possession, then, the quality of those acts, even CS(OS) No.2133/1989 Page 40 though they might not be sufficient to constitute adverse possession as against another, may be abundantly sufficient to destroy that adequacy and interrupt that exclusiveness and continuity which is demanded from a person challenging by possession, the title which he holds, (see
Kuthali Moothavar v. Paringati Kunharankutty, [
1921] 48 LA. 395,
404. As between co-sharers, the possession of one co-sharer is in law the possession of all co-sharers. Therefore, to constitute adverse possession, ouster of the non-possessing co-sharer has to be made out. As between them, therefore, there must be evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other, (see
P. Lakshmi Reddy v. L. Lakshmi Reddy. [
1957] S.C.R. 195, 202 and also
Mohammad Baqar v. Naim-un-Nisa Bibi.
A.I.R. 1956 S.C. 548). But, once the possession of a co-sharer has become adverse as a result of ouster, a mere assertion of a joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such a manner as it was possible to do. (see
Wuntakal Yalpi Chanabasavana Gawd v. Y. Mahabaleshwarappa AIR 1954 SC 337). The mere fact that a dispossessed co-sharer comes and stays for a few days as a guest is not sufficient to interrupt the exclusiveness or the continuity of adverse possession so as not to extinguish the rights of the dispossessed co-sharer, (see
Ammakannu Ammal v. Naravanaswami Mudaliar
AIR 1923 Mad. 633)."
75. The evidence on record, both documentary, and oral, by way of the affidavit of the second defendant, would reveal that the first defendant was in possession of the suit property since 1967. Although the plaintiff does not say so expressly in the suit, the defendant‟s assertion about possession from there has not been denied. Further, the facts pertaining to execution of the Registered Lease deed in 1967, as well as construction being put on the plot in 1972-74, and use of the property, indicate possession adverse to the interests of the plaintiff and the other supporting defendants. The first defendant also secured sanction to construct on the plot, spent his money, paid ground rent and other charges continuously, and also secured an occupancy certificate. He also let out the premises. All these facts are such that the plaintiffs could reasonably have known; it is not as if they live in some other city. They even plead about an oral settlement; yet no evidence in that regard, or the bare outlines of the terms, or for that matter, the date or dates when such settlement took place, are brought on record. Having regard to these totality of circumstances, the court concludes that the first defendant, and later, the second, third, fourth and twelfth defendants, perfected title to the suit property by adverse possession. Issue No. 10 is accordingly found against the plaintiff, and in favour of Defendant Nos 2-4 and 12.
CS(OS) No.2133/1989 Page 41
76. This issue concerns the partition of Grasmere House at Nainital. The plaintiff had alleged that the parties entered into a family settlement and registered it on 25th June, 1988. The answering defendants flatly deny having entered into any such agreement, and say that the twelfth defendant was not even in India and was in the United States on the said date. The contesting defendants rely on a criminal complaint alleging cheating and forgery in respect of the said document, a copy of which has been produced as Ex. D-3/3.
77. No arguments were addressed on the present issue by the plaintiffs; nor was reliance placed on any document. In the circumstances, the issue is answered against the plaintiff.
78. In view of the findings recorded above, the suit has to fail, and is dismissed with costs. Counsel‟s fee is quantified at Rs. 1,00,000/-.