JUDGMENT Jyoti Singh, J. (Oral) C.M. APPL. 7991/2023 (exemption) 1. Allowed, subject to all just exceptions. 2. Application stands disposed of. CM APPL. 7990/2023 (for condonation of delay) 3. Issue notice. 4. Counsels, as above, accept notice on behalf of the Respondents. 5. For the reasons stated in the application, the delay in filing the appeal is condoned. 6. Application is allowed and disposed of. RFA 129/2023 & C.M. APPL.7989/2023 (stay) 7. This regular first appeal has been filed assailing the impugned judgment and decree dated 08.06.2022 as well as the order dated 11.02.2021 passed by the learned Trial Court in CS No. 386/2019. Appellant was Defendant No. 1 in the suit and Respondent No. 1 herein was the Plaintiff. Parties hereinafter are referred to by their litigating status before the Trial Court. 8. At the outset, learned counsel for the Plaintiff hands over a copy of an order dated 13.02.2023 passed in Execution No.237/2022, wherein it is recorded that the possession of the suit property has been handed over to the Decree Holder by the Judgment Debtor through the assistance of a Court Bailiff on 20.01.2023. It is the contention of the Decree Holder that this fact has been concealed by the Appellant and in any case once the possession has been handed over the appeal ought to be dismissed. This fact is not disputed by the counsel for the Appellant. He, however, submits that the appeal be heard on merits as he has no instructions to withdraw the same. 9. As the counsel for the Appellant presses the appeal on merits, the same is being heard and decided. 10. Shorn of unnecessary details, the facts relevant for deciding the appeal are that the Plaintiff/DDA Allottees Association who is Respondent No. 1 in the present appeal, filed a suit before the Trial Court for declaration, possession, injunction and damages against the Defendants alleging unauthorized occupation of the suit property being a Hall in the Ground Floor of Block-2 (near entrance gate), DDA MS Flats, Qutub View Apartments, Katwaria Sarai, New Delhi. It was the case of the Plaintiff that Defendant No. 11 built multistorey flats at Katwaria Sarai during 1982-87 with two blocks, each having 56 flats in 7 floor towers. On the ground floor of both the blocks, there were halls, rooms, toilets, shops etc. which were common amenities for the residents of the complex. It was the case of the Plaintiff that Defendant No. 11 built multistorey flats at Katwaria Sarai during 1982-87 with two blocks, each having 56 flats in 7 floor towers. On the ground floor of both the blocks, there were halls, rooms, toilets, shops etc. which were common amenities for the residents of the complex. In the initial years of maintenance of the water services, employees of Defendant No. 1 used to work in the complex as well as in the flats situated in the vicinity of the complex. Sometimes in 2000-01, the sewerage disposal and drainage cleaning staff approached the Plaintiff to permit them to keep their tools and equipments in the hall of the complex, till an alternate arrangement was made. 11. It was averred by the Plaintiff that in 2016 the number of employees of Defendant No. 1 increased and eventually they started occupying more and more area and creating nuisance in the complex, compelling the Plaintiff to write to Defendant No. 12 on 04.03.2017 to vacate the hall as the same was never allotted to the Delhi Jal Board. Despite prolonged correspondence the employees of Defendant No. 1 did not leave the premises in question and the Plaintiff was constrained to file the present suit. 12. Vide order dated 11.02.2021, the defence of Defendants No. 1 to 10 was struck off by the Trial Court and only Defendants No. 11 to 14 filed their written statement. The Trial Court framed the following issues, on the basis of the pleadings: "1. Whether the plaintiff is entitled to decree of declaration as prayed in prayer no.(a) OPP. 2. Whether the plaintiff is entitled to decree of ejectment as prayed in prayer no.(b) OPP. 3. Whether the plaintiff is entitled to decree as prayed in prayer no.(c) OPP. 4. Whether the plaintiff is entitled to decree as prayed in prayer no.(d) OPP. 5. Whether the plaintiff is entitled to decree of compensation as prayed in prayer no.(e) OPP. 6. Whether the plaintiff is entitled to any interest or damages as prayed in prayer no.(f) OPP. 7. Relief." 13. Evidence was led by the Plaintiff, who examined 16 witnesses and PW-1 was duly cross-examined by the Defendants. Defendants did not lead any evidence. 5. Whether the plaintiff is entitled to decree of compensation as prayed in prayer no.(e) OPP. 6. Whether the plaintiff is entitled to any interest or damages as prayed in prayer no.(f) OPP. 7. Relief." 13. Evidence was led by the Plaintiff, who examined 16 witnesses and PW-1 was duly cross-examined by the Defendants. Defendants did not lead any evidence. After examining the evidence and hearing arguments, the Trial Court decreed the suit partially in favour of the Plaintiff directing Defendants No. 1 to 10 to handover peaceful possession of the suit property to the Plaintiff within one month from the date of the decree. Issue No. 1 was decided in favour of the Plaintiff holding that the Plaintiff was the allottee of the suit property including common utility areas in the complex. Issue No. 2 was also decided in favour of the Plaintiff and it was held that the Plaintiff is entitled to seek ejectment of Defendants No. 1 to 10. Insofar as damages etc. are concerned, the Trial Court held that the Plaintiff was unable to lead evidence to prove damages and decided the said issue against the Plaintiff. 14. It is pertinent to mention that from a reading of the appeal, this Court is unable to discern the ground(s) on which the impugned judgment and decree is assailed. Appellant has only made vague and bald assertions that the Plaintiff has failed to prove the contents of the plaint and that the judgment and decree is perverse and based on mere conjectures and surmises. With regard to order dated 11.02.2021 whereby the defence of Defendant No. 1 was struck off all that is averred is that the order is erroneous and no opportunity was granted to Defendant No. 1 to defend the case on merits. However, orally it is sought to be argued by counsel for Defendant No. 1 that the Trial Court ought not to have struck off the defence of Defendant No. 1 and an opportunity should have been granted to file the written statement. It is further argued that Defendant No. 1 had been in occupation of the suit property for the last 30 years and had become owner of the suit property by way of adverse possession and therefore, the Plaintiff has no right to eject Defendant No. 1. 15. I have heard learned counsels for the respective parties. 16. It is further argued that Defendant No. 1 had been in occupation of the suit property for the last 30 years and had become owner of the suit property by way of adverse possession and therefore, the Plaintiff has no right to eject Defendant No. 1. 15. I have heard learned counsels for the respective parties. 16. Insofar as the plea regarding the striking off the defence of Defendant No. 1 is concerned, the impugned order was passed way back on 11.02.2021. No steps were taken by Defendant No. 1 to challenge the said order and it is only now when the suit has been decreed that the said order is assailed in the present appeal. Even on merits, the order suffers from no infirmity. Order dated 11.02.2021 reflects that the written statement was filed belatedly and thereafter time was granted to Defendants No. 1 to 10 to file an application seeking condonation of delay but no such application was filed. In these circumstances, the Trial Court struck off the defence and in my view rightly so. 17. The only argument raised before this Court, assailing the impugned judgement and decree is the plea of adverse possession. The Supreme Court in Karnataka Board of Wakf v. Government of India and Others , 2004 SCC OnLine SC 505 has held that a party claiming adverse possession must prove the possession to be peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the true owner. It is equally settled that the possession should be actual physical possession and not merely constructive and secondly, the possession should be hostile to the actual owner. In this context, I may allude to another judgment of the Supreme Court in Ram Nagina Rai and Another v. Deo Kumar Rai (Deceased) By Legal Representatives and Another , (2019) 13 SCC 324 , relevant paras of which are as follows: "17. In this context, I may allude to another judgment of the Supreme Court in Ram Nagina Rai and Another v. Deo Kumar Rai (Deceased) By Legal Representatives and Another , (2019) 13 SCC 324 , relevant paras of which are as follows: "17. Applying the test of nec vi, nec clam, nec precario i.e. "without force, without secrecy, without permission" as an established test for finding adverse possession, we find that the defendants have not proved their possession to be adverse to that of the real owner inasmuch as they entered into possession as licensees to begin with and there is nothing on record to show as to when the permissive possession became adverse to the interest of the real owner. "Animus possidendi" is one of the ingredients of adverse possession, and unless the person possessing the property has the requisite hostile animus, the period of prescription does not commence. Virtually, the defendants are required to prove the possession to be adequate in continuity, adequate in publicity and to adequately show that their possession is adverse to that of the true owner. It must start with wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. xxx xxx xxx 20. This Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan [ Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan , (2009) 16 SCC 517 ] has opined that there is an urgent need for a fresh look regarding the law on adverse possession by observing thus: (SCC p. 529, paras 32-34) "32. 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 in 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. 33. This in 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. 33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation. 34. In our considered view, there is an urgent need for a 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." 21. This aforementioned observation was reiterated by this Court in a subsequent judgment of State of Haryana v. Mukesh Kumar [ State of Haryana v. Mukesh Kumar , (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] wherein the Court observed that the law of adverse possession needs a relook, holding the right to property to be a human right, in addition to it being a constitutional or a statutory right. 22. In light of the above observations of this Court, we find that there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property. This would be in clear violation of the basic rights of the actual owner of the property. There is nothing on record to show that the defendants' permissive possession over the property became adverse to the interest of the real owner, at any point of time. On the contrary, the records reveal that the permissive possession of the defendants continued till the filing of the suit." 18. From a reading of the aforesaid judgments and the principles elucidated therein, it is clear that there is no absolute proposition whereby the mere possession of the suit property by the Defendants would amount to adverse possession. As rightly held by the Trial Court, plea of adverse possession can be taken even in cases of permissive possession but only where such possession becomes hostile and adverse to the true and real owner. In the present case, as aforementioned, no written statement was filed by Defendant No. 1 and therefore, no evidence was led. As rightly held by the Trial Court, plea of adverse possession can be taken even in cases of permissive possession but only where such possession becomes hostile and adverse to the true and real owner. In the present case, as aforementioned, no written statement was filed by Defendant No. 1 and therefore, no evidence was led. Therefore, admittedly there is no evidence to show hostile animus and possession adverse to the knowledge of the real owner. In the written statement filed by Defendants No. 11 to 14 i.e. Delhi Development Authority, it was categorically stated that DDA had handed over possession of the suit property to the Plaintiff and not to Defendants No. 1 to 10. The ownership of the Plaintiff to the suit premises is undisputed and even if it is to be assumed that Plaintiff had permitted Defendant No. 1 to use the premises for a certain period it could at best be a permissive use, which continued till the filing of the suit. This Court, therefore, finds no infirmity in the judgment and decree passed by the Trial Court. 19. For the aforesaid reasons, appeal is dismissed with no orders as to costs.