Sardar Jaswant Singh & Anr. vs Sh.Balwant Singh Narang & Anr.
2010 Latest Caselaw 5902 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+               IA No.14811/2009 in CS(OS) NO.1783/2009

                                             Date of Decision : 24.12.2010

SARDAR JASWANT SINGH NARANG & ANR.       ......Plaintiffs
                     Through: Mr. S.C.Singhal, Advocate.

                                       Versus

SH.BALWANT SINGH NARANG & ANR.        ...... Defendants
                     Through: Mr. K.N.Popli, Advocate


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                           YES
2.     To be referred to the Reporter or not ?                NO
3.     Whether the judgment should be reported
       in the Digest ?                                        NO

V.K. SHALI, J.

IA No.14811/2009

1. This order shall dispose of an application bearing IA

No.14811/2009 under Order 7 Rule 11 CPC filed by the

defendants.

2. Briefly stated that facts of the case are that the plaintiffs have

filed a suit for declaration, partition and mandatory

injunction against the defendants. It is alleged in the plaint

that the defendants, who are related to the plaintiffs, have

purchased a plot of land from one Mr. Ajinder Pal Singh by an

agreement to sell dated 31.12.1979. It is further alleged

that after getting the plan sanctioned from MCD, a structure

was raised on the said piece of land and the defendants vide

agreement dated 04.07.1985 gave the first floor of the said

premises for the use and occupation to the plaintiffs on

payment of `1 lakh as security deposit.

3. It was laid down in the said agreement that the aforesaid

amount of `1 lakh would continue to be with the defendants

so long as the plaintiff continues to be in occupation of the

first floor of the suit premises. It was also envisaged that as

and when the plaintiff would vacate and hand over the

peaceful and vacant possession of the first floor to the

defendants, they would refund the aforesaid amount of `1

lakh to the plaintiff.

4. One of the important terms and conditions in the agreement

was that in case, during the period of occupancy, the

plaintiffs decided to purchase ½ share of the right, title or

interest in the aforesaid plot of land and the building thereon

then the amount of `1 lakh shall be treated as a

consideration of payment by the plaintiffs to the defendants of

his share towards the purchase amount and the plaintiffs

shall be treated as a co-owners of ½ share of the suit

property. Relevant clause reads as under:-

"During the period of occupancy if the party of the other part decided to purchase ½ share rights, title and interest in the aforesaid plot of land and the building thereon the party of the one part, is under an obligation to make her as equal co-owner of entire property and the security deposit of `1,00,000/- shall be treated as a consideration of payment of her share of the aforesaid purchase. In

such a case, the parties hereto shall join in making an application to Delhi Municipal Corporation for transfer of lease in their joint names"

5. It is on the basis of this clause, the plaintiffs have alleged that

they are the co-owners/co-sharers to the extent of ½ share

and since the defendants had denied and cast a cloud on the

right of the plaintiff, he came to issue a notice dated

06.08.2009 to the defendants that they must perfect the title

of the plaintiffs and for this purpose, get the property

converted into freehold and do all the other necessary acts in

this regard.

6. The reply to this notice was given on 29.8.2009 by the

defendants denying the claim of the plaintiffs and taking the

plea that the plaintiffs were only licencee and there was no

agreement to sell the first floor. In addition to this, amount of

`1 lakh is stated to have been refunded to the plaintiff vide a

cheque which was not encashed.

7. After the pleadings in the matter were completed, the

defendants filed the aforesaid application for rejection of the

plaint on the ground that there is no cause of action in favour

of the plaintiff to file the present suit. Secondly, the suit is

barred by time as the limitation under Article 58 of the

Limitation Act. It is alleged by the defendants that the period

of limitation of three years is to be reckoned w.e.f. 31.12.1979

and in any case it is to be reckoned w.e.f. 04.07.1985 when

the agreement is purported to have been executed and

therefore, the period having started long back, the present

suit for declaration by the plaintiffs has been filed after expiry

of 30 years from the date of Agreement by the defendants and

24 years after the date of execution of the agreement dated

04.07.1985 is hopelessly barred by time.

8. The third preliminary objection, which was taken by the

defendants was that the suit of the plaintiff is also barred by

Benami Transactions (Prohibition) Act, 1988 and therefore,

the plaint be rejected.

9. Reply to the application has been filed by the plaintiff who

has contested the claim of the defendants. He has also

denied the averments made by the defendants that the suit is

barred by time or Benami Transactions (Prohibition) Act,

1988.

10. I have heard the learned counsel for the parties and perused

the record.

11. The first question which is being raised for consideration is

whether the suit of the plaintiff is barred by time or not.

12. There is no dispute about the fact that Article 58 of the

Schedule part 3 deals with the suit relating to declarations. It

lays down the period of limitation as three years from the date

when the right to sue accrues. The residuary clause under

Article 113 which is part X provides for the period of

limitation for suits for which there is no prescribed period

specified. It also lays down a period of limitation of three

years from the date when the right to sue accrues.

Therefore, irrespective of going into the specific Article under

which the present suit falls, there is no denial of the fact that

the period of limitation is three years when the right to sue

first accrued in a suit for declaration. The plaintiffs in their

plaint in para 19 have specifically stated that the cause of

action arose to the plaintiffs on the notice being served dated

06.08.2009, when he requested the defendants to perfect his

title in terms of agreement dated 04.07.1985.

13. The law regarding Order 7 Rule 11 CPC is very clear that

while deciding the question of rejection of plaint, what is to be

seen are the averments made by the plaintiffs in the plaint

and not the defence which is taken by the defendants or the

averments made by the defendants in their pleadings.

Therefore, it is not open to the defendants to contend that the

suit of the plaintiffs ought to have been filed immediately

when the agreement dated 04.07.1985 was executed or to say

that the suit is hopelessly barred by time because it has been

filed after 30 years from the date of purchase of the suit

property and 24 years from the date of entering into the

agreement. But that was not the date on which the cause of

action accrued to the plaintiffs. There is no dispute about

the fact that the suit property was purchased originally by the

defendants from one Sh. Ajinder Pal Singh and it was

thereafter built upon. The plaintiff came into picture only

by virtue of the agreement dated 04.07.1985 when he was put

into possession of the suit property on payment of `1 lakh as

a security deposit with the defendants

14. The terms and conditions of the security deposited are

enunciated in detail in the agreement itself, but the

agreement also lays down that if at any point of time while

the plaintiffs are in occupation of the suit premises, if they

exercise their right to become the co-owners of the suit

property then the aforesaid amount of `1 lakh shall be treated

as a sale consideration on their behalf to the defendants.

15. Therefore, it is in this context that the defendants have

alleged to have cast a cloud on the right of the plaintiff for

which a notice dated 06.08.2009 came to be issued.

Therefore, the earliest point of time when the cause of action

accrued to the plaintiff was only on 6.8.2009 and it is from

this date the period of limitation has to be reckoned and

therefore, the suit of the plaintiff cannot be said to be barred

by time. It may be pertinent here to refer to the averments

made by the defendant himself who has stated that he had

sent a cheque of `1 lakh deposited with him to the plaintiffs

on 29.08.2009 drawn on State Bank of India, Azadpur

Branch which was not encashed by the plaintiff. This refund

of cheque of `1 lakh is admittedly after the notice dated

06.08.2009 having been issued to the defendants which

clearly shows that the plaintiff continued to be in occupation

and the amount of `1 lakh which was to be treated as a

purchase amount continued to be with the defendants during

all this period. Therefore, it cannot be said that the suit of

the plaintiffs is prima facie barred by limitation as is sought

to be urged by the defendants. Accordingly, the plea of the

defendants in this regard is rejected.

16. So far as the plea of the defendants with regard to the cause

of action is concerned, the suit cannot be said to be without

any cause of action and liable to be rejected under Order 7

Rule 11(a) CPC. The entire reading of the plaint has given

the sequence of events and the plaintiffs has specifically

stated that he issued a notice dated 06.08.2009 to the

defendants to perfect his title and therefore, the defendants

having failed to do so, he chose to file the present suit for

declaration with the consequential reliefs. It can by no

stretch of imagination be said that the suit is without any

cause of action, therefore, this plea of the defendants is also

without any merit.

17. Lastly, we are left with the plea under the Benami

Transactions (Prohibition) Act, 1988 hereinafter referred to as

'Act') as has been raised by the defendant. It is the case of

the defendant that even if it is assumed that the plaintiff had

paid a sum of `1 lakh to the defendants towards the part of

the sale consideration for which the suit land was purchased

or the suit property was built but the property having been

purchased in the name of the defendants by an agreement to

sell is actually the property of the defendants and it cannot be

treated to be property of the plaintiffs because it becomes at

best ½ share of the defendants by way of Benami property,

which is hit by Section 3 of the Benami Transactions

(Prohibition) Act, 1988.

18. I have considered this submission of the defendant.

19. Admittedly, the title of the defendants in respect of the suit

property is not complete, the defendants only have in their

favour an agreement to sell. The property has been

purchased in the year 1979 and the plaintiff has been put

into possession by virtue of agreement dated 04.07.1985

when he paid a sum of `1 lakh to the defendants by way of

security deposit. Therefore, it cannot be said that this

amount of `1 lakh was paid to the defendant at the time of

purchase of the plot of land. In any case, since the title of the

defendants themselves is not perfect, it is not open to the

defendant to contend that the provisions of the 'Act' would be

applicable qua the plaintiff, so far as the suit property is

concerned. Therefore, this plea of the defendants also does

not have any merit.

20. In any case, all these pleas which have been raised by the

defendants in his written statement are pleas of mixed

question of law and fact and they can be decided only after

the parties are permitted to adduce their respective evidence.

21. I accordingly, dismiss the application of the defendants under

Order 7 Rule 11 CPC as being misconceived. No order as to

costs.

22. Expression of any opinion hereinbefore may not be treated as

an expression on the merits of the case.

23. List before the Joint Registrar for further proceedings on

7.2.2011.

V.K. SHALI, J.

DECEMBER 24, 2010 RN