Sh. Anil Singh & Anr. vs Sh. M.L. Ahuja & Ors.
2010 Latest Caselaw 1097 Del

*           HIGH COURT OF DELHI : NEW DELHI

+          I.A. No.1097/1999 in CS(OS) No.1636/2005

%                                          Pronounced on: 25.02.2010

     SH. ANIL SINGH & ANR.                              ...Plaintiffs

                       Through:     Mr. Sandeep Sethi, Sr. Advocate
                                    with Mr. A. Chaturvedi, Mr. Sindhu
                                    Sinha & Mr. Nikhil Bhalla,
                                    Advocates.

                       Versus

     SH. M.L. AHUJA & ORS.                           ....Defendants
                   Through:         Mr. Ravinder Sethi, Sr. Advocate
                                    with Ms. Mamta Mehra, Ms.
                                    Anupama Beniwal & Mr. Rajiv,
                                    Advocates for Defendant Nos. 2 to
                                    4.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               No

2. To be referred to Reporter or not?                            Yes

3. Whether the judgment should be reported                       Yes
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I propose to dispose of I.A. No. 1097/1999

filed by Defendant Nos. 2 to 4 under Order VII Rule 11 of the

Code of Civil Procedure, 1908 (hereinafter referred to as the „CPC‟)

for rejection of plaint. The three Plaintiffs i.e. Sh. Anil Singh S/o.

Late Sh. C.P. Singh, Smt. Vimla Singh W/o. Late Sh. C.P. Singh

and Smt. Rita Chaudhrie D/o. Late Sh. C.P. Singh filed the present

suit for declaration and permanent injunction seeking the following

reliefs:

"i. Declare the Plaintiffs as the legal heirs of late Shri C.P.

Singh and the legal owner and beneficiary of the leasehold

rights relating to the suit property and in terms of

Annexures 1 and II hereto and no other person and in

particular, the Defendant Nos. 1 to 5 cannot claim any right

adverse and contrary to the rights of the Plaintiffs and the

Plaintiffs alone are entitled to the Suit property and

consequential relief of possession of suit property bearing

no.124, Janpath, New Delhi in favour of Plaintiffs and

against the Defendants;

ii. Declare that the perpetual lease dated 5.8.1957 executed by

Defendant No. 5 in favour of Defendant No. 4 is illegal and

void and that it does not confer any rights, title or interest

in Defendant No.4 and/or in favour of its partners; calling

up the original documents, adjudging them as null and void

and to cancel the same;

iii. Declare that the alleged partnership entered into between

the late Sh. C.P. Singh and Defendant No. 1 to 4 or any of

them was illegal, void, fraudulent, fictitious, having been

entered into with the illegal and unlawful objectives and for

purpose of perpetrating a fraud on Defendant No.5, various

statutes and the exchequer and is thus not binding on the

Plaintiff or Defendant No.5.

iv. Declare that any sale/assignment of rights in the suit

property or the alleged partnership by Late Shri C.P. Singh

whereby legal rights and interests in the suit property were

sought to be created directly or indirectly in favour of

Defendants No. 1 to 4, or any of them is illegal and bad in

law;

v. Declare that Defendant No.2 has no rights, title or interest

in the suit property;

vi. Declare that the Defendant No.3 has no right to act as agent

of late Sh. C.P. Singh or otherwise in the name of M/s. C.P.

Singh & Co.;

vii. Declare that the legal possession of the property vests in the

Plaintiffs;

viii. Direct the defendant Nos. 1 to 4 to render accounts and to

make over to the Plaintiffs the mesne profits and all

benefits earned or derived by them in connection with the

suit property;

ix. Issue a permanent and mandatory injunction restraining the

defendants No. 1 - 4 their nominees, agents and assigns:

a. From the use and enjoyment of the said property in

any manner whatsoever;

b. From creating any third party interests in the said

suit property;

c. From representing themselves to be the legal

owners, occupiers or users of the suit property;

d. From acting the attorneys of Late Sh. C.P. Singh.

e. From interfering in the Plaintiff‟s rights of free

ingress/egress, use and enjoyment of the suit

property as the lawful owners thereof."

2. It is submitted by Defendant Nos. 2 to 4 in the present

application that the Plaint should be rejected mainly on the ground that

there is no cause of action in favour of the Plaintiffs as the Plaintiffs are

seeking to challenge transactions and events concerning the Defendant

company which occurred during the year 1957. The Plaintiffs are the

wife and children of late Sh. C.P. Singh and they are challenging the

documents i.e. partnership and perpetual lease deed which were

executed in the year 1957 though the same were never challenged by

late Sh. C.P. Singh and moreover he never claimed any right under the

said deed when he was alive. Sh. C.P. Singh died on 31 st December,

1984 and the present Suit was filed in the year 1997.

3. The contention of the Defendants is that the Suit is barred by

the law of limitation and consequently it discloses no cause of action. It

is stated in the application that the deed of perpetual lease was executed

between the President of India and the Defendant No. 4 way back on 5th

August, 1957 in favour of the Defendant No. 4.

4. It is further stated that since 1957, the Defendants have been

in possession and occupation of the Suit property openly and without

any protest from the predecessor-in-interest of the Plaintiffs and since

the present Suit was filed after the expiry of 40 years, the same is barred

by Article 58 of the Limitation Act, 1963.

5. Even otherwise, under Section 90 of the Evidence Act, the

genuineness of the document cannot be challenged if it is thirty years

old and is to be produced from proper custody. The document in

question is thirty years old and therefore it cannot be challenged by way

of declaration in the year 1997.

6. Another contention of the learned counsel for the Defendants

is that the Plaintiffs have no locus standi to file the present Suit as the

Plaintiffs have neither set up any Will nor any Succession Certificate, if

any, obtained by the Plaintiffs and as far as commission of any fraud is

concerned, the same is alleged to have been committed by the Union of

India which has executed the document on 5th August, 1957.

7. In reply, it is contended by the Plaintiff that the cause of

action arose in or about January/February, 1995 when the Plaintiffs for

the first time came to know about the fraud perpetrated by the Defendant

Nos. 1 to 4 and further the cause of action arose when the Plaintiffs and

their advocate visited the L&DO office and came to know of the fraud,

mistake and misrepresentation on account of suppression of material

fact.

8. As far as the period of limitation is concerned, the contention

of the Plaintiffs is that it can be counted from the date when the

Plaintiffs came to be aware of the above stated facts. It is argued that

the agent was looking after the suit premises through a power of

attorney and he suppressed material facts and kept the Plaintiffs in dark

and misused that power and misrepresented his position before the

authorities. It is also contended that the fraud was committed in

connivance with some of the authorities and the agent concealed the

actual facts and misrepresented himself and even late Sh. C.P. Singh

was kept in the dark with regard to the same.

9. It is submitted by the Plaintiffs that the Defendants in any

event have no title or right to become the owners of the suit premises

and in case they are claiming the property by way of adverse possession

they have to move the Court to prove the same. It is also stated that

since the Plaintiffs are the legal heirs of the deceased, therefore, they

have locus standi to file the present suit.

10. As far as reference to Section 90 of the Evidence Act is

concerned, it is contended by the Plaintiffs that the said provision has no

application to the facts of this case as the same clearly lays down that

the document has to be proper. It is prayed that the application is totally

misconceived and it has been filed in order to delay the proceedings and

the same is liable to be dismissed.

11. Learned counsel for the Plaintiffs has referred to various

decisions in support of his submissions and the same are dealt with

hereunder.

12. As regards adverse possession, in Saroop Singh Vs. Banto

and Others, (2005) 8 SCC 330 the Supreme Court observed:

30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [See Md. Mohammad Ali (Dead) By LRs. v. Jagdish Kalita and Ors. SCC Para 21 (2004)1 SCC 271]

31. Yet again in Karnataka Board of Wakf v. Government of India and Ors. (2004) 10 SCC 779, it was observed :

"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

13. With respect to the genuineness of the documents which can

not be challenged under Section 90 of the Evidence Act, 1872, learned

counsel for the Plaintiffs has referred the decision in the case of M/s.

Sodhi Transport Co. & Anr. Vs. State of UP & Anr. AIR 1986 SC 1099

was referred to wherein the Supreme Court held:

"11. In the Indian Evidence Act, 1872 there are three cases where conclusive presumption may be drawn. They are Sections 41, 112 and Section 113. These are cases where law regards any amount of other evidence will not alter the conclusion to be reached when the basic facts are admitted or proved. In Woodroffe & Amir All's Law of Evidence (Vol. I) 14th Edition at page 299 it is stated thus :

Conclusive presumptions of law are :

„rules determining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. They consist chiefly of those cases in which the long experienced connection, just alluded to has been found so general and uniform as to render it expedient for the common good that this connection should be taken to be inseparable and universal. They have been adopted by common consent, from motives of public policy, for the sake of greater certainty, and the promotion of peace and quiet in the community; and therefore, it is that all corroborating evidence is dispensed with, and all opposing evidence is forbidden (Taylor, Ev., s.71 : Best, Ev., p. 317, s.304')....

Rebuttable presumptions of law are, as well as the former,

'the result of the general experience of a connection between certain facts or things, the one being usually found to be the companion or the effect of the other. The connection, however, in this class is not so intimate or so uniform as to be conclusively presumed to exist in every case; yet, it is so general that the law itself, without the aid of a jury, infers the one fact from the proved existence of the other in the absence of all opposing evidence. In this mode, the law defines the nature and the amount of the evidence which is sufficient to establish a prima facie case, and to throw the burden of proof upon the other party;

and if no opposing evidence is offered, the jury are bound to find in favour of the presumption. A contrary verdict might be set aside as being against evidence. The rules in this class of presumptions as in the former, have been adopted by common consent from motives of public policy and for the promotion of the general good; yet not as in the former class forbidding all further evidence, but only dispensing with it till some proof is given on the other side to rebut the presumption raised.

12. Having regard to the definition of the words 'may presume', it is open to a court where they are used in its discretion either to draw a presumption referred to in a law or may not. The words 'shall presume' require the court to draw a presumption accordingly, unless the fact is disproved. They contain a rule of rebuttable presumption. These words i.e., 'shall presume' are being used in Indian judicial lore for over a century to convey that they lay down a rebuttable presumption in respect of matters with reference to which they are used and we should expect that the U.P. Legislature also has used them in the same sense in which Indian courts have understood them over a long period and not as laying down a rule of conclusive proof. In fact these presumptions are not peculiar to the Indian Evidence Act. They are generally used wherever facts are to be ascertained by a judicial process."

14. With regard to limitation and Order VII Rule 11 CPC, in the

case of Ramesh B. Desai & Ors. Vs. Bipin Vadilal Mehta & Ors. AIR

2006 SC 3672 the Supreme Court held:

"16. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a

member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust and Ors.) decided on 8.11.2005 and it was held: -

"After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the paint it cannot be held that the suit is barred by time."

This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11(d) CPC."

15. In another case of Balasaria Construction (P) Ltd. Vs.

Hanuman Seva Trust and Others (2006) 5 SCC 658, the Apex Court

observed:

"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure."

16. The law as regards rejection of plaint is quite well settled. In

Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V.

Fortune Express and Others (2006) 3 SCC 100 the Apex Court

observed:

"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the Plaintiff may not succeed cannot be a ground for rejection of the plaint."

17. In a case decided by a Division Bench of this Court being

Manmohan Singh Chawla & Ors. Vs. Rajesh Berry & Anr., 2009 (3)

AD (Delhi) 259 the Court held:

"It is not in dispute and even the parties were at ad idem that while considering the application under Order VII Rules 10 and 11 of the Code averments made in the plaint and plaint alone are to be seen. At this stage the Court cannot go into the defence of the defendants contained in the written statement or the documents filed by the defendants."

18. The learned counsel for the Defendants has argued that since

the defendant No.2 is the owner of the suit property in question,

therefore, the claiming of adverse possession does not arise. His

submission is that the judgment referred by the learned counsel for the

Plaintiffs i.e. Saroop Singh (supra) has no bearing in the present matter.

He further argues that the suit property in question was registered in the

name of a partnership firm M/s. C.P. Singh & Company and late Sh.

C.P. Singh had sold his rights/shares in the partnership firm M/s. C.P.

Singh & Company in favour of defendant No.2 who is now the owner of

the property.

19. The next submission of the learned counsel for the

Defendants is that the fraud as per the Plaintiffs took place somewhere

in the year 1957 and Sh. C.P. Singh died on 31 st December, 1984.

During his lifetime, late Sh. C.P. Singh did not initiate any legal

proceedings alleging the said fraud in respect of the suit property. Since

he did not take any action for the same, his legal heirs, after the expiry

of 13 years since his demise, cannot claim any fraud having been

committed upon them. The limitation period has to start from the time

of knowledge of Sh. C.P. Singh and not from the legal representative of

Sh. C.P. Singh.

20. The next contention of the Defendants is that Sh. C.P. Singh

remained silent for almost 27 years i.e. between the period from 1957 to

1987 and now the question of fraud cannot be raised by the Plaintiffs. It

is also argued that there is no question of transfer as the property was in

the name of M/s. C.P. Singh & Company, the partnership firm, of which

Sh. C.P. Singh and defendant No.2 i.e. ICPL were the partners and

subsequently on 5th August, 1957 Sh. C.P. Singh sold his share in the

partnership firm to defendant No.2.

21. Since the lease deed was executed in the name of M/s. C.P.

Singh & Company, the question of sale of property to the third party

does not arise as the present case is a case where one partner of the

partnership firm had sold his share in the partnership firm to another

partner i.e. defendant No.2. The defendant No.2 is in possession and

occupation of the suit property and is the legal owner and till his death

Sh. C.P. Singh had never disputed the said ownership and occupation of

defendant No.2.

22. Since during his lifetime he had never claimed any right in

the suit property, thus, at this juncture the Plaintiffs who are claiming

their right through late Sh. C.P. Singh cannot claim ownership.

Therefore, the suit is barred by limitation and is liable to be dismissed.

23. In support of his submissions, the learned counsel for the

defendant has referred to various judgments:

                  I.      T. Arivandandam Vs. T.V. Satyapal and
                         another, AIR 1977 SC 2421
                  II.    Malvika Madan Sehgal and Another Vs. M.M.

Sehgal Limited and Others, 65 (1997) DLT 381. III. Ajay Goel Vs. K.K. Bhandari and others, 1999 A I H C 1722.

IV. Raj Narain Sarin (Dead) Through Lrs. and Others Vs. Laxmi Devi and Others, (2002) 10 SCC 501.

                  V.     N.V. Srinivasa Murthy and Others Vs.
                         Mariyamma (dead) by Proposed LRs and



                        Others, JT 2005 (6) SC 1.

24. On the point of Section 90 of the Indian Evidence Act that the

genuineness of the document cannot be challenged if it is thirty years old,

the learned counsel for the defendant has referred the following judgments:

1. Parkash Chand and others Vs. Hans Raj and another, AIR 1994 Himachal Pradesh 144.

2. Liladhar Vs. Siaram and Another, AIR 1976 Allahabad 213.

3. Rao Raja Tej Singh and others Vs. Hastimal and others, AIR 1972 Rajasthan 191 (V 59 C 53).

4. Savitri Dei Vs. Bhaskar Bhuyan and others, AIR 1972 Orissa 148 (V 59 C 45).

5. Rajendra Prasad Bose Vs. Gopal Prasad Bose, 94 Indian Cases 1926 Page 814.

6. Ram Lal Kaviraj and Others Vs. Satya Niranjan Chakerverty and Others, 1920 Indian Cases 786.

7. Babu Nandan and others v. The Board of Revenue and others, AIR 1972 Allahabad 406 (V 59 C 108).

8. Gulamuddin s/o Hisamuddin, dead through LRs Vs., 2004 (3) Bom. C.R. 365.

25. I have heard the learned counsel for the parties. Mr. Sandeep

Sethi, learned Senior Counsel for the Plaintiffs in his contention submits

that the Suit must be allowed to run its full course in order to arrive at the

conclusion as to whether the Suit filed by the Plaintiffs is maintainable or

not. He argued that in view of the provisions of Code of Civil Procedure,

1908, the averments in the Plaint can be looked into and while reading the

Plaint, in case the Court arrives at the conclusion that action is barred by

limitation then the prayer sought by the defendants can be allowed.

26. As far as the cause of action is concerned, one has to see

the prayer made in the suit while determining as to what would constitute

the cause of action. The Supreme Court in the case of Om Prakash

Shrivastava Vs. Union of India, 2006 (6) SCC 207 observed in paras 12

and 13 as under:-

"12. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a Plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the Plaintiff must fail in his suit. (See Gurdit Singh v. Munsha Singh : [1977]2SCR250 ).

13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person. (See Black's Law Dictionary). In. Stroud's Judicial Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the Plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4 th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra and Ors. : AIR2000SC2966 )."

27. In view of the settled law on the subject-matter, I shall now

examine the statements in the plaint to see whether it is liable to be

rejected or not.

A. In para 3 of the plaint, the Plaintiffs have made the

statement that on or about 22nd/23rd July, 1994, the

Plaintiffs were informed by one of their lawyers

handling their legal matters that there was some case

pending in the High Court relating to their father and

NDMC and the making an inquiry into the matter, the

Plaintiffs came to know that late Sh. C.P. Singh had

acquired the suit property.

B. In para 3.3of the plaint, it is mentioned that on inquiry

made in the Land and Development Office by the

Plaintiffs on 27th February, 1995, the Plaintiffs came to

know that the defendant No.1 had been dealing in the

office as an attorney of late Sh. C.P. Singh and in his

business name i.e. M/s. C.P. Singh and Company and

the defendant No.5 had been dealing with defendant

No.1 believing him to be the attorney of Sh. C.P. Singh

and as the attorney of the firm.

C. Para 4 of the plaint reads as under:

4.1. That in July, 1949, the Late Shri C.P.

Singh then resident of 18, Barakhamba Road,

was granted in perpetuity, lease hold rights by

the Governor General of India, acting through

the Local Self Government, with respect to the

piece of land then known as 124 Queen‟s way,

New Delhi, comprising of 0.53 acres.

4.2. That the Governor General of India

acting through Shri K.K. Sharma, Secretary

(Local Self Government) to the Chief

Commissioner of Delhi by the order and

direction of the Governor General of India

executed in favour of Shri C.P. Singh, the

Agreement for lease.

Alongwith the said Agreement for Lease

Shri C.P. Singh and the Registrar of the Chief

Commissioner of Delhi, signed a copy of the

Perpetual Lease in acceptance of the terms and

conditions relating to the grant of the

Perpetual Lease hold rights with respect to the

suit property 124, Queens way, which is now

known as 124, Janpath, New Delhi and is

herein referred to as the suit property.

The aforesaid original documents are

now in the possession of the Plaintiffs and

Annexures P-1 & P-2 are true photo copies of

the same and the same may please be read as a

part of this plaint.

4.3. That pursuant to the execution of the

aforesaid documents the possession of the suit

property was handed over to and taken over by

late Shri C.P. Singh who was thereby vested

with all rights of ownership, and came into

possession of the suit property together with

all the Lease-hold rights in perpetuity.

4.4. That Shri C.P. Singh remained the owner

in possession of the said property till his death

on 31.12.1984, whereupon the Plaintiffs as the

surviving legal heirs inherited all the rights,

title and interests in the suit property. Shri

C.P. died intestate.

4.5. That the Defendants have intentionally

suppressed the fact of Sh. C.P. Singh‟s death

from the L & D O.

D. In para 6 of the plaint, it is stated that after coming to

know in February, 1995, the Plaintiffs served a legal

notice dated 14th February, 1996 to the defendant No.1

and in response to the said notice the defendant No.1

sent the reply dated 23rd February, 1996 wherein it was

mentioned that on 5th August, 1957 Sh. C.P. Singh had

sold his interest in M/s. C.P. Singh and Company to the

defendant No.2 M/s. Indian City Properties Ltd. and the

lease deed admittedly was not singed by Sh. C.P. Singh

but was signed by Sh. I.S. Anand on behalf of M/s. C.P.

Singh and Company.

E. In para 7 of the plaint, it is stated that there was no

request of late Sh. C.P. Singh to the defendant No.5 for

the execution of the deed of perpetual lease in favour of

defendant No.4.

F. In para 8 of the plaint, it is stated that as per Annexures

1 & 2 executed between late Sh. C.P. Singh and the

Governor General of India, Sh. C.P. Singh had fully

paid the sale consideration amount to the Government

and against the said consideration the possession

thereof was handed over in full to Sh. C.P.Singh and he

was granted the lease-hold rights in perpetual to the suit

property. As per the agreement, late Sh. C.P. Singh

could not have transferred his right in the suit property

without prior consent of the lessor i.e. defendant No.5.

Nor defendant No.5 ever granted any permission to Sh.

C.P. Singh or any one else to transfer the suit property

or his right. It is contended that the said partnership

appears to have been formulated under the name and

style of M/s. C.P. Singh and Company i.e. defendant

No.4 and real object of the defendant appears to have

been to transfer the suit property by circumvent with by

the various provisions of law. It is also alleged that the

partnership was illegal and fraudulent and therefore, it

could not have been any legal or valid assignment in

favour of defendant No.4.

G. In para 10 of the plaint, it is also stated that the

defendant No.1 as attorney of M/s. C.P. Singh &

Company does not have the right to act as an agent and

representative of late Sh. C.P. Singh and therefore, the

defendants No.5 & 6 have been misled into acting in

granting permissions/approvals and sanctions and they

acted by mistake on account of misrepresentation and

by suppression of material fact by the defendants.

28. After examination of the averments made in the plaint and

documents, it appears to this Court that prima facie no inference can be

drawn from the documents filed by the Defendants in order to show that

late Sh. C.P. Singh had ever admitted his partnership with the defendant

No.2 before the defendant No.5 or had written any letter under his

signature informing the defendant No.5 in this regard. There is also no

cogent material on record to show that late Sh. C.P. Singh or the

Plaintiff herein had knowledge before his death about the transfer of his

share in favour of the defendant No.2 in the firm of defendant No.4 or

had any knowledge about the giving up of his right before defendant

No.5. Thus this Court is of the view that all these questions can be

answered when the parties will lead their evidence as per their

contentions.

29. In para 4 of the Plaint, it is mentioned that Plaintiffs (the

legal representatives of late Sh. C.P. Singh) have made the specific

statement that Sh. C.P. Singh remained the owner and in possession of

the suit property till his death on 31 st December, 1984. On the other

hand, the Defendants are claiming that after the execution of the lease

deed from the office of defendant No.5, the defendant No.2 constructed

the suit property on the land known as Thapar House.

30. The Plaintiffs in the Plaint have specifically stated that late

Sh. C.P. Singh was the owner of the property and were not aware about

the execution of the lease deed and late Sh. C.P. Singh never sold his

share in favour of the partnership business M/s. C.P. Singh & Company

in favour of defendant No.2. Though the Defendants are alleging that

late Sh. C.P. Singh during his life time never claimed any right or title in

M/s. C.P. Singh & Company.

31. In the cause of action paragraph it is stated by the plaintiffs

that the cause of action accrued in or about January/February 1995 for

the first time when the Plaintiffs came to know about the fraud

committed by the defendants No.1 to 4. The defendants on the other

side have pleaded that late Sh. C.P. Singh did not raise any objection

for more than 27 years when the property was leased in favour of

defendant No.4 and before that late Sh. C.P. Singh already sold his share

to defendant No.2.

32. No doubt, in case the averments made by the Defendants in

the written statement are proved to be true then the suit is definitely

barred by limitation and is not maintainable. But in the present case the

plaintiffs have made the specific statements to the effect that they first

time came to know about the said suit property in the month of July,

1995 and also details as regards the alleged fraud committed by the

defendants in the Office of Land and Development in the year 1995 and

the suit was filed in the year 1997 which is within time after having the

information.

33. Admission/denial in this matter is already complete. The

matter will go for trial after framing of issues. Therefore, without going

into the merit of the case, I am of the considered view that trial in the

present case is necessary in order to determine the rival pleas made by

the parties.

34. After considering the entire gamut of the matter, this Court is

not inclined to allow the present application. The same is dismissed

with the direction that the proceedings in the suit be expedited as the

suit was originally filed in the year 1997.

CS(OS) No. 1636/2005

35. List before the Court for framing of issues on 17th March,

2010.

MANMOHAN SINGH, J.

FEBRUARY 25, 2010 dp/jk