Delhi High Court
Sukhbiri Devi & Ors. vs Uoi & Ors. on 25 August, 2009
Author: Aruna Suresh
* HIGH COURT OF DELHI AT NEW DELHI
+ RSA 79/2007 & CM No. 3931/2007
Judgment reserved on : August 03, 2009
Date of decision : August 25, 2009
SUKHBIRI DEVI & ORS. ..... Appellant
Through : Mr. J.C. Mahindroo, Advocate
Versus
UOI & ORS. .....Respondents
Through : Mr. S.D. Singh, Advocate for
defendant No. 5.
Mr. Pawan Mathur, Adv. for
DDA.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J.
1. The appellants (hereinafter referred to as plaintiffs)
filed a suit for declaration with consequential relief
of injunction against the respondents (hereinafter
referred to as defendants) seeking decree of
declaration declaring that plaintiffs are the co-
owners in the allotment of the suit plot No.13, Type
A-1, Sector-26, Rohini, New Delhi and that
defendant No. 5 is not the exclusive owner of the
said plot in suit. Plaintiffs further sought relief for
permanent injunction seeking restraint order
against the defendant No.5 from selling, conveying,
transferring or alienating the said plot to anyone
whosoever and for restraining defendants No.1 to 4
from delivering the physical possession and the
titles of the said plot to defendant No.5 or his
nominee. The said suit was dismissed by the trial
court vide its judgment and decree dated
13.5.2005. Against this order, plaintiffs filed first
regular appeal before the Additional District Judge.
The said appeal was dismissed by the appellate
court vide its judgment dated 8.12.2006. Aggrieved
by the judgment of the first appellate court, the
second appeal has been filed by the plaintiffs under
Section 100 of the Civil Procedure Code (hereinafter
referred to as CPC).
2. Following substantial question of law was
formulated on 3.8.2009:-
"Whether the trial court rightly
construed the provision of Limitation
Act while coming to the conclusion
that the suit was barred by limitation
and also the date from which the
cause of action is alleged to have
accrue in favour of plaintiff while
considering the issue of limitation."
3. Mr. J.C. Mahindroo, learned counsel for the plaintiffs,
has contended that the cause of action arose in
favour of the plaintiffs on 9.1.1976 when the lands
of Sh. Rama Nand were acquired and thereafter it
arose when Sh. Rama Nand died and his estate was
inherited by his heirs. He argued that cause of
action further arose when application for alternative
plot was made by the defendant No.5 by playing
fraud and claiming himself to be the sole and
exclusive heir of the deceased Rama Nand. It
further arose when objection applications were
made with the defendants No.1 to 4 on various
dates. He further submitted that cause of action
again arose when Nahar Singh died on 14.5.1993
and plaintiffs being his legal heirs stepped into his
shoes and again it arose when the allotment was
made and then when the defendant No.5 started
holding himself to be the exclusive allottee and
tried to negotiate for sale of the allotment of the
suit plot and lastly on 27.5.2000 when defendant
No.5 finally refused to accede to the request of the
plaintiffs. Therefore, according to him the suit has
been filed within the period of limitation of three
years which started running against the plaintiffs on
27.5.2000 and the suit was filed on 29.5.2000 i.e.
well within the period of limitation.
4. Mr. S.D. Singh, learned counsel for the defendant
No.5 has submitted that the suit of the plaintiffs as
per their own admission in the plaint is barred by
period of limitation. Article 58 of the Schedule to
the Limitation Act prescribes period of limitation of
three years for a suit seeking declaratory relief and
limitation started running when the right to sue first
accrued. He further argued that the plaintiffs and
their predecessor in interest had come to know
about the misuse of the impugned relinquishment
deed executed on 21.10.1985 vide letter dated
8.3.1991 and they has raised objection vide their
application dated 5.4.1991 objecting to the
allotment of the plot to the defendant No.5. He
further argued that suit property was allotted to
defendant No.5 by the DDA in the year 1994.
5. It is submitted by the learned counsel that draw of
lots is the consequence of recommendation and
allotment on the basis of relinquishment deed and
plaintiffs cannot question the draw of lots unless the
relinquishment deed, recommendation, sanction
and allotment made in the year 1991 and 1994 are
declared null and void. Therefore, apparently the
relief of declaration as claimed by the plaintiffs is
barred by period of limitation.
6. Article 58, Schedule I, Part III, of the Limitation Act
prescribes the period of limitation to obtain a
declaration not covered by any other article under
this part (part III). It reads:-
Description of Period of Time from which
suit limitation period begins to run
Article 58. -- To Three years. When the right to sue
obtain any other first accrues.
declaration.
7. Article 58 of the Limitation Act therefore is a
residuary article so far as the suits for declarations
are concerned excepting declarations under Article
56 and 57.
8. Thus, it is clear that period of limitation for suits for
declarations is three years from the date when the
right to sue first accrues. What is relevant in this
article is that the limitation starts running on the
date when the right to sue first accrues and not on
subsequent dates even if a cause of action has
arisen on subsequent occasions as well. The right
to sue can be treated as having arisen when there
was clear or unequivocal threat proceeding from
the opponent and that a threat which clearly
invades or jeopardizes the plaintiffs‟ right can be
taken as giving rise to a cause of action to take
steps for smothering such a threat. As per the
language of the article computation of the period of
limitation has to be done by tracking it back to the
time when the right to sue accrued for the first
time.
9. The exact antecedent of the word „first‟ in article 58
is that when any act or assertion of the defendant
threatened that gives plaintiff a cause of action. In
a suit for declaration the right to sue accrues when
the defendant actually tries to assert his right and
interferes with the possession of the plaintiff and
not when the defendant is successful in getting the
property in his name.
10. The impugned relinquishment deed was executed
by the predecessor in interest of the plaintiffs in
favour of Dhan Singh defendant No.5 on
21.10.1985. Nahar Singh, predecessor in interest
of the plaintiffs, got the knowledge that Dhan Singh
had misused the said relinquishment deed in order
to deprive his rights and that of other legal heirs of
deceased Rama Nand in the alternative plot to be
allotted in lieu of the acquired land vide letter No.
31(11)/8/87 L&B/Alt/8226 dated 8.3.1991. This
letter was addressed to defendant No.5 by Land and
Building Department regarding allotment of
alternative plot. Thereafter Nahar Singh wrote an
objection letter dated 5.4.1991 to DDA and Land
and Building Department. He died on 14.5.1993.
Plaintiff No. 1 also filed an objection application
addressed to Joint Secretary Land and Building on
9.5.1995, 16.9.1998, 3.8.1999 and thereafter.
11. Letter dated 30.12.1994 was written by Land and
Building department to DDA requesting it to allot an
alternative plot to Dhan Singh. A list of allotment
was circulated wherein the name of Dhan Singh was
shown at No. 023(0018)/94 as allottee of 300 sq.
meter plot at Rohini. Vide letter dated 7.7.2000
DDA informed Dhan Singh that it had recommended
allotment of an alternative plot to him on perpetual
lease hold basis vide Land and Building department
letter dated 30.12.1994. As per para 25 of the
plaint, cause of action lastly arose on 27.5.2000
when defendant No.5 finally refused to accede to
the request of the plaintiffs. Therefore, as per the
pleadings contained in the plaint itself, the cause of
action first accrued in favour of the plaintiffs or their
predecessor in interest i.e. Nahar Singh on his
coming to know of letter dated 8.3.1991 that Dhan
Singh had misused the relinquishment deed in order
to get the alternative plot in lieu of the acquired
land allotted in his name. Correspondences
exchanged between Nahar Singh and the
departments as well as the present plaintiffs and
the defendants No. 1 to 4 cannot be construed as
giving rise to any fresh cause of action in favour of
the plaintiffs and against the defendants. Even if
the cause of action arose on the date when the
allotment letter was circulated in the year 1994
wherein defendant No.5 has been shown as an
allottee of 300 sq. meter of plot at Rohini, then also
the present suit is barred by period of limitation
having been filed on 29.5.2000. Reference is made
to Secretary, Ministry of Works and Housing v.
Mohinder Singh Jagdev and others - (1996) 6
SCC 229 and State of Punjab v. Balkaran
Singh - (2006) 12 SCC 709.
12. Learned counsel for the plaintiffs has referred to
Ajudh Raj and others v. Moti - (1991) 3 SCC
136. This case is of no help to the plaintiffs as it
related to a suit for title to an immovable property
and it was observed that where a suit for title to an
immovable property; subject matter of the case
under a special act, if an adverse order comes in
the way to the success of the plaintiff, he must get
it cleared before proceeding further. But in case
such order has been passed without jurisdiction, the
same can be ignored being a nullity, i.e. non-
existent in the eyes of law and such a suit will be
governed by article 65. The facts and
circumstances of this case are completely different
in nature and the relief claimed is of declaration for
declaring the relinquishment deed executed by the
predecessor in interest of the plaintiffs as null and
void.
13. Similarly Kuldeep Singh v. Ganpat Lal and
another - (1996) 1 SCC 243, wherein an
application under Order VII Rule (1)(e) CPC was filed
for eviction of a tenant on the grounds of default in
payment of rent for six months and the plaint did
not disclose the cause of action, it was observed
that purpose of plaintiff in indicating the date on
which the cause of action arose would be of little
consequence if the cause of action had arisen on
the date on which the suit was filed and the suit
was within limitation on the said date, does not
come to the rescue of the plaintiffs in any manner.
14. Plaintiffs have claimed knowledge of misuser of the
impugned relinquishment deed by Dhan Singh vide
letter dated 8.3.1991. As per Section 17 of the
Limitation Act the plaintiffs have to prove that they
were kept out of the knowledge of their right to sue
or apply by that fraud or mistake. This is not the
case before me. In case of a suit or an application,
limitation runs from the date when the fraud
becomes known to the plaintiffs or applicant who is
injuriously affected by the fraud. The knowledge
referred to in Section 17 of the Act is clear and
definite knowledge of the facts constituting the
particular fraud and not a mere suspicion. To bring
a case within the Section the plaintiff or applicant
must allege both the fraud and the date when the
fraud pleaded came to his knowledge. As pointed
out above, plaintiffs have pleaded fraud and its
knowledge vide letter dated 8.3.1991. Therefore,
even by virtue of Section 17 of the Limitation Act,
period of limitation started running against the
plaintiffs on 8.3.1991. The present suit having been
filed on 29.5.2000 is after the expiry of period of
three years and therefore is barred by period of
limitation.
15. The first appellate court rightly observed that cause
of action arose in favour of Nahar Singh on the date
when it came to his knowledge on 8.3.1991 that a
fraud had been played upon him by defendant No.5
and since he did not choose to get the impugned
relinquishment deed cancelled during his life time
and the present suit having been filed on the basis
of alleged cause of action having accrued on the
subsequent dates i.e. date of allotment is barred by
period of limitation.
16. Learned counsel for the plaintiffs has referred to
letter dated 7.7.2000 whereby DDA informed Dhan
Singh that it had recommended allotment of an
alternative plot to him on perpetual lease on the
basis of the Land and Building department letter
dated 30.12.1994 and therefore, according to him a
fresh cause of action arose in favour of the plaintiffs
on 7.7.2000. The present suit having been filed in
the same year is within the period of limitation.
17. As discussed above, the cause of action first
accrued in favour of the predecessor in interest of
the plaintiffs on 8.3.1991 when Nahar Singh came
to know about the fraud being played by Dhan
Singh to get the alternative plot allotted in his name
on the basis of the relinquishment deed and
therefore, by virtue of article 58 the period of
limitation started running against Nahar Singh and
thereafter his legal heirs; the plaintiffs from
8.3.1991. The present suit having been filed after
nine years is barred by period of limitation.
18. Therefore, I conclude that the trial court rightly
construed the provisions of Limitation Act while
coming to the conclusion that the suit was barred
by period of limitation and also the date on which
the cause of action accrued in favour of the
plaintiffs while considering the issue of limitation.
19. Hence, I find no merits in the appeal and the same
is accordingly dismissed.
(ARUNA SURESH)
JUDGE
AUGUST 25, 2009
jk
