The non-disclosure of the starting point of limitation against the plaintiffs being not pleaded clearly, the defence of adverse possession is total moonshine.

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 premisesBench 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.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.   .....                Advocate Paramesh �.  Hyderabad