Smt. Renuka Wahi vs Maharaj T.S. Wahi
2010 Latest Caselaw 65 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       FAO (OS) NO. 3/2010

        SMT. RENUKA WAHI                            ..... Appellant
                       Through: Mr. D.R. Bhatia, Adv.
                  versus

        MAHARAJ T.S. WAHI                    ..... Respondent
                       Through: None
        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                   ORDER

% 08.01.2010

This appeal has been preferred against the order dated 23 rd

November, 2009 of the learned Single Judge dismissing the application of

the appellant-defendant under Order 7 Rule 11 of the CPC. The appellant-

defendant sought rejection of the plaint in the suit for declaration and

injunction filed by the respondent inter alia on the ground i) that the same

was not valued properly for the purposes of court fees and jurisdiction; ii)

that the suit was barred by limitation; iii) that the suit was barred under

Section 185 of the Delhi Land Reforms Act and; iv) lastly that the suit was

barred by Section 34 of the Specific Relief Act.

The learned single Judge has upheld the plea of the appellant-

defendant of the suit being not properly valued for the purposes of court

fees and jurisdiction and directed the respondent-plaintiff to affix the

deficient court fees on the plaint. The other grounds of rejection urged by

the appellant-defendant were negated.

The counsel for the appellant has first urged that the suit was

barred by time. The respondent-plaintiff is inter alia seeking a declaration

that he is the absolute owner of a Farm House situated at N-15, South

Avenue, Sainik Farms, New Delhi and the appellant-defendant who was

the wife of the respondent-plaintiff is merely a benamidar. The

contention of the counsel for the appellant-defendant is that since the

sale deed of the property in favour of the appellant-defendant is dated

21st May, 1980, the suit for declaration with respect thereto could only

have been instituted within three years of the date of the sale deed and

the suit instituted in April, 2009 was palpably barred by time and the

plaint should have been rejected on this ground alone. The counsel for

the appellant in this regard relies upon the Division Bench judgment of

this Court in Maha Singh v. Anand Singh, 156 (2009) DLT 674,

Lachhman Singh v. Hazara Singh, (2008) 5 SCC 444 and Dr. Kamal

Gupta v. Smt. Uma Gupta, 123 (2005) DLT 146.

It is undisputed that the limitation for such a suit for declaration

would be governed by Article 58 of the Schedule to the Limitation Act.

The same provides for a limitation of three years from the date when the

cause of action accrues. Upon the same being put to the counsel for the

appellant, he contends that the cause of action would accrue on the date

of the sale deed with respect whereto the suit for declaration has been

filed.

This Court in Maha Singh's case (supra), on the basis of the facts in

that case, held that the defendant in that suit had been letting out the

property and had been realizing rent to the exclusion of the plaintiff for

more than 12 years prior to the institution of the suit and it was in these

facts held that the plaintiff had been excluded from the property for over

12 years and was not entitled to maintain the suit for partition. Lachhman

Singh's case (supra) is also not concerned with the limitation for claiming

rights as a benamidar. In Dr. Kamal Gupta (supra), the declaration was

sought on the basis that relinquishment deed was not validly executed. It

was in that context that a single Judge of this Court held that the cause of

action for setting aside the said relinquishment deed would arise on the

date of its execution. The single Judge of this Court in Dr. Kamal Gupta

(supra), in the facts of that case, found the cause of action to have

accrued on the date of execution. However, the said judgment cannot be

said to be laying down a general principle that all suits for declaration qua

deeds are to be instituted within three years of the execution of the deed.

Article 58 does not lay down the date of execution of the deed as the date

of accrual of the cause of action. On the contrary, Article 56 expressly

dealing with the declaration of the forgery of an instrument issued or

registered provides the limitation of three years commencing from the

date when the issue of registration becomes known to the plaintiff.

Similarly, Article 59 dealing with suits relating to decrees and instruments

and for cancellation or setting aside of an instrument also provides

limitation of three years commencing from the date when the facts

entitling the plaintiff to have the instrument or decree cancelled or set

aside or the contract rescinded first become known to the plaintiff.

The respondent-plaintiff in the present case is not even claiming

any declaration qua the sale deed (supra). The validity of the said sale

deed is not under challenge. The declaration sought is that though the

sale deed is in favour of the appellant-defendant, the respondent-plaintiff

is the real owner of the property. Suit for such a declaration has to be

filed when first a challenge is made to such benami ownership. In a

similar vein, it was held by the Division Bench of the Calcutta High Court

in Kanailal Das v. Jiban Kanai Das, AIR 1977 Cal 189 that the 'right to

sue' in Article 58 is not there until an accrual of the right asserted and its

infringement or at least a clear and unequivocal threat to infringe that

right by the defendant against whom the suit is instituted exists.

Reference in this regard may also be made to Bharat Singh v. Kunwar

Singh, AIR 1991 MP 368. If the respondent-plaintiff is able to establish

during the course of trial that such challenge to his benami ownership was

first made within three years prior to the institution of the suit, the suit

would be within time. In the circumstances, no ground for rejection of the

plaint on this ground is made out.

As far as the bar of Section 185 of the Delhi Land Reforms Act is

concerned, the same applies only to the cases mentioned in the schedule

to the said Act and which are triable before the revenue courts

constituted under the said Act. Neither has the counsel for the appellant

been able to show nor is there any article in the said schedule to the Land

Reforms Act where a suit of the nature from which this appeal arises is

triable before the revenue courts. No fault can be found with the

reasoning of the leanred single Judge on this account also.

The last ground of the suit being barred by Section 34 of the

Specific Relief Act has also been succinctly dealt with in the order

impugned in this appeal. The contention of the counsel for the appellant

is that since the respondent-plaintiff is not in possession of the property,

he is not entitled to maintain a suit for declaration alone. The learned

single Judge has held that the suit property comprises of two units, of

which one is in occupation of the appellant-wife and the other is in

occupation of the respondent-husband and the said two residential units

are surrounded by open land; that the possession of open land is

governed by title; that since the respondent-plaintiff is also in possession,

he is not required to sue for possession and as far as the occupation by

the appellant of the other unit is concerned, the same is on account of

relationship. We do find any case of rejection of the plaint to have been

made out on this ground either.

Resultantly, no ground is made out to entertain the appeal. The

same is dismissed in limine.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J JANUARY 8, 2010 pk