Delhi High Court: Rajiv Sahai Endlaw, J., passed a decree for recovery of possession in favour of the plaintiffs without a trial, where it was found that the defendants were insisting upon the recording of evidence and a trial only to defer the evil day of a decree being passed against them.
Factual Matrix
In the instant matter, plaintiffs’ purpose for the institution of the case was:
- For declaration of their title and ownership of ground floor of property.
- For recovery of possession thereof.
- For ancillary reliefs against defendants 1 to 8 namely: (a) Arun Jethmalani, (b) Mohiney K. Jethmalani, (c) Ashish Hingorani, (d) C.V. Hingorani, (e) G.V. Hingorani, (f) Tulsi V. Hingorani, (g) Padma V. Hingorani, and (h) Delhi Development Authority (DDA).
Plaintiffs submitted that Devi Verhomal Hingorani was the owner of the property comprising of two and a half storey building with land underneath. After her demise, defendant 3 i.e. Ashish Hingorani became the owner of the ground floor of the property; defendants 6 and 7 i.e. Tulsi V. Hongorani and Padma V. Hongorani became the owner of the first floor of the property. Defendant 5 i.e. G.V. Hingorani became the owner of the second floor of the property and defendant 4 i.e. C.V. Hingorani was the named executor under the Will.
Ashish vide an agreement to sell, sold the ground floor of the property to the plaintiffs and on receipt of the entire purchase consideration executed the Will, Receipts, Affidavits, Indemnity Bonds, Special Power of Attorney in favour of the plaintiffs. Since 1992, plaintiffs have been in the possession of the property. Further, the plaintiffs permitted defendants 1 and 2 i.e. Arun and Mohiney to access the ground floor as the caretaker.
Further, it was stated that Mohiney, the sister of the husband of plaintiff 1, during a conversation with the husband of plaintiff 1 mentioned that the ground floor belonged to her as she had purchased the same from Ashish.
With regard to first and second floors of the property, plaintiffs got to know that the owners of the said floors had executed certain documents including the Special Power of Attorney in favour of the husband/father of Mohiney/Arun. It was further learnt that the husband/father of Mohiney/Arun had also obtained a Special Power of Attorney from Ashish.
Leasehold rights of the land underneath the property had been converted into freehold vide Conveyance Deed jointly in favour of defendants 3 to 7, to whom different portions of the property were bequeathed under the Will.
Later, in 2012, when plaintiff 2 visited the property, found that Arun had opened his office on the ground floor and Arun and Mohiney were claiming themselves to be the owners in the possession of the ground floor of property.
In 2013, summons were ordered to be issued to Arun, Mohiney and Ashish to be restrained from creating any third party rights in the ground floor of the property.
Since both Arun and Mohiney died, they were substituted by the wife, son and daughter of Arun; another son of Mohiney was also impleaded as an heir.
High Court’s Analysis and Decision
Bench on perusal of the facts and circumstances of the case found that no trial was required in the matter, plaintiffs were entitled to a decree for possession:
- Defendants contention that since issues were framed trial was necessary, was no longer res integra. Bench referred the decision of Supreme Court in Charanjit Lal Mehra v. Kamal Saroj Mahajan, (2005) 11 SCC 279 and Delhi High Court’s decision in Parivar Seva Sansthan v. Veena Kalra, 2000 SCC OnLine Del 469.
- As far as the plea of the defendants, of oral Agreement to Sell is concerned, the defendants, notwithstanding the pendency of this suit since the year 2013, have till date not initiated any action for specific performance thereof and the claim, even if any of the defendants for specific performance, would now be barred by time.
- The defendants have pegged their case on adverse possession and all that needs to be adjudicated at this stage is, whether there is any plea of adverse possession and whether the plea, even if any of adverse possession, is such which is required to be put to trial. If the defendants fail on their plea of adverse possession, a decree for possession would be liable to be passed against them.
- The existence of the Agreement to Sell, even if any, does not entitle the defendants to defend a claim for possession on the basis of title by the owner. The only remedy of an agreement purchaser is to sue for specific performance and which has not been done by the defendants.
- It is quite obvious that it was only pursuant to the order dated 5th November, 2019, that the yarn of Arun and Mohiney having separate defences, with Arun having a defence of agreement purchaser and Mohiney having a defence of adverse possession, has been spun/woven.
- The contention, that while the possession of Mohiney was adverse to the plaintiffs, the possession of Arun was as agreement purchaser from the plaintiffs, cannot be accepted.
- Once Arun and Mohiney, both were in possession of ground floor of the residential House No. B-59, East of Kailash, New Delhi, there can be no plea of adverse possession by one when the other is claiming to be in possession as an agreement purchaser.
- Owing to the relationship between Arun and Mohiney and owing to the lack of any plea, of Arun and Mohiney being in possession of the separate portions of the ground floor of the residential House No. B-59, East of Kailash, New Delhi, the plea of adverse possession and the argument of adverse possession on behalf of Mohiney, is nothing but a red herring and which clever drafting and arguments cannot and ought not make the Court put to trial something which can otherwise clearly be seen as a ruse in day light and permits of no ambiguity.
- It is quite obvious that the defendants were insisting upon recording of evidence, to defer the evil day of a decree for recovery of possession being passed against them. However, the Court has to cut through the web of pleas spun in the written statement of the defendants and if finds the plea of adverse possession on which emphasis is laid today, to be without any substance, on account of other pleas in the written statement, is not to pedantically and mechanically order evidence to be recorded and allow its process being abused. The time and resources of the Court can be utilised for appropriate cases indeed requiring recording of evidence and trial and in which findings cannot be returned without such trial.
Mala fides of the defendants were also found much evident.
Plaintiffs were held entitled to a decree for recovery of possession forthwith. The Court expected that the defendants at least now will see reason and not indulge in any further litigation on false mutually destructive pleas bordering on contemptuous conduct interfering with administration of justice. The mesne profits at Rs 30,000 per month were fixed by the Court. [Asha V. Wadhwani v. Arun Jethmalani, 2020 SCC OnLine Del 480, dated 18-3-2020]
