Delhi High Court: Party claiming averse possession must show that possession is adverse to the true owner & must start with wrongful dispossession of the rightful owner

By – Vivek Singh

In the case of Monika Tyagi & ors. vs Subhas Tyagi, a single Judge bench of Delhi High Court consisting, Justice Asha Menon hearing to the petition filed by the plaintiff under Order XII Rule 6 of CPC, looking in pursuit for Judgment on admission against the defendants & application filed by plaintiff under Order VII rule 14 read with section 151 CPC for filing additional document.

Facts of the case

A suit was filed by the plaintiff insignificance of permanent & mandatory injunction for the recovery of possession of a property. Originally late Sudhir Kumar Tyagi was the owner of the property & the defendants requested to open a gym in the said property & Mr. Sudhir agreeing for the same had received some amount, although it wasn’t a regular payment for the property. The defendant claimed the possession of the property on the license of Mr.Tyagi. So, the cause of action arising the plaintiff asked the defendant to vacate the property, Mr.Tyagi kept some of the space in his possession like the office room, latrine, kitchen  & storage room for his personal use. The defendants made a promise to vacate the property in late February, March 2020 & had been delaying the same by taking advantage of the covid-19 pandemic situation.

Conditions put forth

Plaintiff: It has not been clarified when did the defendant came into the possession of the property & even having the property for a long possession that wouldn’t give rise to adverse possession. There has been no affirmation that the defendant was claiming ownership & no contention was made to the world at large that they were the real owners. Mere abandonment of the property wouldn’t create an acquiescence that the defendants can claim property by adverse possession.

Respondent: The defendant contended by making a clear case of adverse possession. Since there had been no construction in the property when taken possession of by defendant No.1 & defendant No.1 was running a gym adjacent to the suit property even taken the suit property from late Mr.Tyagi to expand his gym. It had been 16 years since he had been carrying the construction where late Mr.Tyagi never interfered.

High courts Observation & Judgment

After listening to both sides rationally the claim arises that the defendants who were accused of breaking the walls of the said property actually constructed it. The High Court relied on the case Karnataka Board of Wakf vs Government of India & ors, where the Supreme Court held a person who claims adverse possessions should show

  1. On what day he had come into possession
  2. What was the nature of his possession
  3. Whether the factum of the possession was known to the other party
  4. How long his possession has continued
  5. His possession was open & undisturbed

Court held that the defendants never came disclosed the date by which they affirmed the hostile title of the property. This alone would substantiate a valid defense for a title by adverse possession. So, the court held a fundamental plea to claim adverse possession is missing & the defendant has not been discharging his burden. So, under order XII rule 6 of CPC application is allowed & the suit is in favor of the plaintiff.

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