Sh.Ripu Daman Haryal & Anr. vs Miss Geeta Chopra & Anr.
2011 Latest Caselaw 3065 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) No.297/2009

                                    Date of Decision : 04.07.2011

SH.RIPU DAMAN HARYAL & ANR.                         ...... Plaintiffs
                     Through:                Mr.A.S.Chandhiok,
                                             Sr.Adv. with Mr.Vikram
                                             Nandrajog, Adv.

                                Versus

MISS GEETA CHOPRA & ANR.                      ......      Defendants
                     Through:                Mr.Vikas Dhawan, Adv.

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

V.K. SHALI, J.

1. This order shall dispose of an application bearing No.

4821/2009 filed by the defendants under Order VII Rule

11 CPC for rejection of the plaint.

2. Brief facts of the case are that the plaintiffs filed the

present suit for declaration possession and injunction on

12.02.2009 which came up before the Court for the first

time on 13.02.2009. It was alleged in the plaint that the

plot bearing no. S-106, Panchsheel Park, New Delhi

measuring 505.90 sq. yards was owned by one Late Shri

Joginder Nath Bharadwaj. It was allotted to him for and

on behalf of the President of India by the DDA by way of

perpetual sub lease deed dated 18.12.1968. A copy of the

lease deed has been filed on record and is admitted by the

parties, which is marked as Ex.P-1. It has been alleged

that Smt. Geeta Chopra is the widow of Late Shri Joginder

Nath Bharadwaj and Rajesh Bharadwaj is the son. Both of

them are defendant nos.1 and 2 respectively. It has been

stated that the plaintiff no.1 and the defendants as well as

Late Shri Joginder Nath Bharadwaj were known to each

other as they were living in the same colony. They also

used to meet at the Panchsheel Club of which they were

members. It has been stated that Late Shri Joginder Nath

Bharadwaj in order to generate funds to settle his

son/defendant no.2 in some business sold the terrace

rights of the first floor i.e. second floor and half of the

terrace of the second floor that is Third floor of the suit

property bearing no. S-106, Panchsheel Park, New Delhi

for a total sale consideration of Rs.9,50,000/- to the

plaintiffs and their mother Smt. Krishna Haryal. The

deceased Joginder Nath Bharadwaj is stated to have

received the entire Sale consideration and executed not

only the agreement to sell but also Receipt, WILL and the

General Power of Attorney in favour of the plaintiffs on

11.6.1996 and got them duly registered with the Sub

Registrar. The case of the plaintiffs is that the possession

of the terrace of the first floor of the suit property was also

handed over to them and they had put their locks and one

guard named Shishu Pal to look after the said property.

Joginder Nath Bharadwaj died on 02.04.1999, and

therefore, it is stated that the title of the plaintiffs was

perfected by operation of the registered WILL dated

11.06.1996. It is stated that the plaintiffs did not raise

any construction on the second floor i.e. terrace of the first

floor on the ground that Delhi building Bye-laws were

under consideration for being amended for permitting

construction of the entire second floor as well as the third

floor of the properties in Delhi, and therefore, the plaintiffs

preferred to wait for the modified building bye-laws to be

notified. It has been stated that since the relations

between the plaintiffs and the defendants were cordial and

there was absolutely no problem and the plaintiffs allegedly

continued to be in possession of the premises sold to them

through their guard. However, it is stated that a key of

the terrace floor was given to the defendant in order to see

their overhead water tanks. It has been stated that on

02.01.2009 when the plaintiff no. 1 visited the suit

property he found that the air conditioners of the first floor

where tenant was living, had been dismantled and house

hold goods of the tenant were lying in a packed condition.

The plaintiff no. 1 went to the suit property that is the

terrace of the first floor and after locking the same came

down to the ground floor and met defendant no.1. It is

alleged that he was further surprised to see that even the

goods of the defendant no. 1 were lying packed. On

enquiry, the defendant no. 1 had stated that she is going to

Dubai and the tenant of the first floor was vacating the

property. On enquiring about defendant no. 2, the

defendant no. 1 stated that he is shifting to Gurgaon. It

has been further alleged that on the evening of 02.1.2009

at about 6.45 P.M. the plaintiff no. 1 along with his wife

and son Viraj went to meet the defendant no. 1 at her

residence while the plaintiff no. 1‟s wife and son went

inside the residence of the defendant no. 1, the plaintiff no.

1 went to the terrace of the first floor and to his surprise,

found one person removing the handle and lock on the

entrance door of the terrace of the first floor and was trying

to put lock of larger size then that of the plaintiff. The

plaintiff no. 1 and his family members intimated the PCR

but the police is stated to have not taken any action, as

they were alleged to be in league with the defendants,

whereupon he lodged a report with the ACP of the area that

he was dispossessed from the terrace of the first floor

which was sold to him by Late Shri Joginder Nath

Bharadwaj. The plaintiffs have further stated that they

have learnt in the year 2009 that the defendants made a

false statement to the DDA that they are the only legal

heirs of Late Shri Joginder Nath Bharadwaj without

disclosing the factum of sale of the terrace of the first floor

of the suit property and without disclosing that the

deceased had made a WILL in respect of the said terrace

floor of the first floor in favour of the present plaintiffs and

applied for conversion of lease hold rights into freehold.

This request of conversion by the defendants was permitted

by the DDA and a conveyance deed dated 30.06.2008 has

been executed and registered in their favour. The

plaintiffs further states that on the basis of these

averments, the terrace of the first floor and half of the

terrace of the second floor having been sold to the plaintiffs

for a consideration of Rs.9,50,000/- with the 1/3rd right in

the land underneath, they are entitled to a declaration that

they are the owners of the entire terrace of the first floor

etc. The plaintiffs have also stated that they are entitled

to the possession of the aforesaid portion of the suit

property. Apart from this, the plaintiffs have also claimed

the mandatory injunction against the defendants. It is

stated in the plaint that the cause of action accrued to file

the suit on 29.3.1996 and 11.06.1996 when the

documents were executed in their favour and in any case it

also accrued on 02.04.1999 on account of the death of

Shri Joginder Nath Bharadwaj. It further arose on

2.1.2009 till which date the plaintiffs remained in

possession and when they found the defendants changing

the locks of the terrace floor and finally on 5.2.2009 when

the plaintiff found that the defendants were puncturing the

terrace floor and trying to sell the suit property. Along

with the suit, an application under Order 39 Rules 1 and 2

CPC has been filed.

3. The suit came up for hearing for the first time on

13.02.2009 and this Court after hearing the learned

counsel for the plaintiffs passed an ex-parte ad interim

order restraining the defendants from creating any third

party interest with regard to the title or possession of the

property and were further restrained from demolishing or

constructing the suit property. This order was modified by

the Court on 23.4.2009 and it was ordered that without

prejudice to the rights and contentions of the respective

claims of the parties the defendants were permitted to raise

the construction on the basement, ground floor and the

first floor. Vide order dated 22.12.2009, the defendants

were further permitted to raise construction over the first

floor terrace as per plan duly sanctioned by the local

authorities and subject to the condition that entire

construction shall be at the risk and the cost of the

defendants and they shall not claim any compensation if

the decision is ultimately passed against them. It was also

made clear that the defendants shall not part with the

possession of the second floor of the construction so made,

however, they were at liberty to use the said construction

for their own benefit. The defendants were also restrained

from creating any third party interest in the portion so

constructed.

4. Against the order dated 22.12.2009, an FAO(OS) No.

68/2010 was filed by the plaintiffs before the Division

Bench of this Court which was treated as disposed of on

the ground that the interest of the plaintiffs was

sufficiently protected by the statement made by the learned

senior counsel for the defendants that they shall raise the

construction at their own risk and the cost.

5. The defendants have contested the claim of the plaintiffs

both on the question of maintainability as well as on

merits. However, it is not necessary to advert to the same

while considering the application filed by the defendants

u/O 7 Rule 11 (d) CPC for rejection of the plaint. The only

thing to be seen by the Court is as to what are the

averments made in the plaint and their effect in the light of

the legal position.

6. But before coming to the same, it may be pertinent here to

mention that the application filed by the defendants under

Order VII Rule 11 CPC seeking rejection of the plaint filed

by the plaintiffs on the ground that the present suit is

barred by law on the ground that the plaintiffs are claiming

a decree of declaration to the effect that they are the

owners of the suit property. It is stated that from the

meaningful reading of the plaint, it is manifest that the

declaration which is prayed for is based on unregistered

agreement to sell dated 29.03.1996 and the registered

GPA/SPA/WILL dated 11.06.1996. It is further stated

that the plaintiffs in their plaint have specifically averred

that the cause of action has accrued to them firstly on

29.3.1996 to file the suit and in any case, it also accrued in

their favour on 02.04.1999 when Sh.Joginder Nath

Bharadwaj expired. It is further averred that it arose on

2.1.2009 when they found the defendants changing the

lock and also on 5.2.2009, when the plaintiff found that

they were puncturing the terrace. It has been stated by

the learned counsel for the defendants that according to

Article 58 of the Limitation Act a suit for declaration has to

be filed within a period of three years from the date of

accrual of cause of action, and according, to the plaintiffs

own averment the cause of action firstly accrued in their

favour on 29.3.1996 and secondly on 02.04.1999 when

Late Shri Joginder Nath Bharadwaj died. In case limitation

is reckoned from the date of death i.e. 02.04.1999, it would

expire on 01.04.2002 while as the present suit for the

declaration has been filed in the year 2009. It is further

averred in the application that the plaintiffs by a clever

drafting of the plaint purported to file the present suit for

declaration and injunction merely as a camouflage while as

in effect they are seeking the specific performance of an

agreement to sell dated 29.03.1996 and execution of the

documents of title in their favour. In this regard, the

learned counsel for the defendants has stated that the

agreement to sell (which is being termed as sale by the

plaintiffs) is not duly registered and as per the provisions of

Section 49 of the Indian Registration Act or Section 54 of

the Transfer of Property Act, the said document is

inadmissible in evidence. It is alleged that the plaintiffs

have chosen to file the present suit after 13½ years of

execution of the alleged agreement to sell knowing fully

well that they cannot sue as on date by filing the suit for

specific performance as the same is barred by limitation.

7. The defendants have averred that in effect the plaintiffs

have tried to camouflage the real relief by filing the present

suit simplicitor for declaration with a view to avoid the

filing of a suit for specific performance for perfecting their

title, and therefore, applying the principle laid down by the

Apex Court in case titled N. V. Srinivasa Murthy & Ors

Vs. Mariyamma (Dead) (2005) 5 SCC 548 and Hardesh

Ores (P) Ltd. Vs. Hede and Company (2007) 5 SCC 614

the present suit is liable to be rejected.

8. So far as the plaintiffs are concerned, they have contested

the defendant‟s application for rejection of the plaint under

Order VII Rule 11(d) CPC on the ground that the plaintiffs

had filed an appeal bearing FAO (OS) No. 68/2010 against

the order dated 22.12.2009 by virtue of which the

defendants were permitted to raise the construction

subject to their unilateral undertaking that they will not

use the construction over the disputed portion and the

same shall remain locked and unoccupied, is a clear

admission that the defendants have given up their plea of

rejection of the plaint under Order VII Rule 11 (d) CPC and

have conceded that it being tried on its merit.

9. It is further stated in the reply that without prejudice to

the aforesaid the suit cannot be rejected on the ground

that the said suit is barred by limitation as well as on the

ground that the agreement to sell is not a registered

document. It is contended that under Section 54 of the

Transfer of property Act a distinction is to be drawn

between the „sale‟ and the „mode of sale‟.

10. It is contended that in the present case Late Shri Joginder

Nath Bharadwaj, owner of the property bearing no. S-106,

Panchsheel Park, New Delhi sold the entire terrace of the

First Floor i.e. the Second Floor and half of the terrace of

the Second Floor i.e. the Third Floor for a total sale

consideration of Rs.9,50,000/- to the plaintiffs and their

mother Smt. Krishna Haryal. The deceased stated to have

executed an agreement to sell, affidavit and receipt dated

29.03.1996 after having received the entire sale

consideration and handed over the vacant and peaceful

possession of the same to the plaintiffs. It is further stated

that Late Shri Joginder Nath Bharadwaj also executed the

registered GPA with power to execute the sale deed vested

in favour of the plaintiff no. 1 and SPA and WILL dated

11.06.1996. On the basis of the said documents, it is

stated that this constituted a sale within the meaning of

Section 54 of the Transfer of Property Act and resulted in

transfer of ownership by Late Shri Joginder Nath

Bharadwaj. It is averred that so far as the question of

non-registration of the agreement to sell is concerned, it

pertains to the mode of sale which does not in any manner

detract from the sale of the property in question by the

predecessor in interest of the defendant. In order to

support this, it is stated that as per Clause 9 of the

General Power of Attorney, the plaintiff no.1 was

empowered to sell the suit property. This general power of

attorney being registered and consideration having been

paid has become irrevocable and does not lapse even on

account of the death of Sh.Joginder Nath Bharadwaj. It is

averred that illustrations appended to Section 202 of the

Indian Contract Act clearly supports this view that an

interest in the property which form the subject matter of

agency, cannot in the absence of an express contract be

terminated to the prejudice of such interest. Reliance in

this regard is placed on case titled Asha M. Jain Vs. State

& Ors 2002 II AD (Delhi) 734 to contend that the

judgment of the Division Bench in Asha Jain‟s Case clearly

recognizes the ownership of a property on the basis of

documents like agreement to sell, Power of Attorney, Will

etc.

11. So far as the question of limitation is concerned, it is stated

that the defendants have erroneously taken the period of

limitation of three years from 29.03.1996 or alternatively

w.e.f. 02.04.1999 without realizing the fact that the plaint

makes clear mention that there was no issue with regard to

the title or the ownership of the plaintiffs in respect of the

portion of the suit property till 02.01.2009 that is the date

upto which they continued to be in possession of the said

portion. It is stated that it was only on the said date i.e.

02.01.2009 when an attempt was made by the defendants

to dispossess the plaintiffs from the suit property that the

cause of action arose in their favour to file the suit. It is

further stated that it also arose on 5.2.2009 when the

plaintiffs found that the defendants were puncturing the

terrace. And even if the period of limitation of three years

is taken into account, the said suit is still well within its

time if reckoned from 02.01.2009 or from 5.2.2009. It

has been further stated that so far as the relief of

possession is concerned, a suit for possession can be filed

by the plaintiffs up to the period of 12 years, and therefore,

even if the period of limitation is reckoned as is mentioned

in the plaint, the period of 12 years has to be reckoned

from the date of dispossession, i.e., 02.01.2009 and

therefore, the suit is well within its time.

12. I have heard the learned senior counsel, Mr. A.S.

Chandhiok for the plaintiffs and Mr.Vikas Dhawan, for the

defendants. I have also gone through the record. Before

dealing with the respective contention of the parties, it may

be pertinent here to refer to undisputed facts as alleged in

the plaint.

(i) In paragraphs 5 and 6 of the plaint, the plaintiffs have

claimed that the entire terrace of the first floor that is the

second floor and half of the terrace of the second floor i.e.

the third floor was sold to him by Late Shri Joginder Nath

Bharadwaj by virtue of agreement to sell dated 29.3.1996

and WILL, General Power of Attorney etc. dated 11.6.1999,

which were duly registered before the Sub Registrar and

the possession was handed over to the plaintiffs..

(ii) In para 8 of the plaint, it is averred that Late Shri Joginder

Nath Bharadwaj expired on 02.04.1999 and on the basis of

the registered Will dated 11.6.1996, title of the plaintiffs

was perfected.

(iii) In para 10 of the plaint, the plaintiffs have stated that they

had purchased the property from the father of the

defendants‟ besides being the owners of the property by

virtue of the last WILL and testament of Sh.Joginder Nath

Bharadwaj dated 11.06.1996. Similar, averments were

made in para 15 and 16 of the plaint.

(iv) In para 18 of the plaint, it is averred that the cause of

action accrued to the plaintiffs on 29.03.1996 when the

property was sold to them by way of an agreement to sell

and execution of the General Power of Attorney and will

etc. on 11.6.1996 which were duly registered. It further

arose, when their title to the part of the suit property was

allegedly perfected on account of the death of Late Shri

Joginder Nath Bharadwaj on 02.04.1999. The plaintiffs

are also making reference to two dates dated 2.1.2009

when they allege that the defendants have put their locks

on the terrace and secondly, on 5.2.2009 when they found

that the defendants were getting the terrace punctured.

13. On the basis of these averments, the following three reliefs

have been claimed by the plaintiffs:

"a) Pass a decree of declaration in favour of plaintiffs and against the defendants that plaintiffs are owners of entire terrace of first floor i.e. second floor and half of terrace of second floor i.e. third floor along with proportionate undivided 1/3rd rights in the land underneath of the property S-106, Panchsheel Park, New Delhi.

b) Pass a decree of possession in favour of plaintiffs and against the defendants with respect to the entire terrace of the first floor i.e. second floor of the property S-106, Panchsheel Park, New Delhi, directing defendants to be ejected therefrom and plaintiffs being put in possession of the same.

c) Pass a decree of permanent injunction restraining defendants from in any way selling, mortgaging, alienating, transferring, creating third party interest or parting with possession or the entire first floor i.e. second floor and half of terrace of second floor i.e. third floor and 1/3rd rights in the land underneath of the property S-106, Panchsheel Park, New Delhi or raising any construction or demolishing the said property."

14. The question to be considered is, as to whether the plaint

is liable to be rejected under Order 7 Rule 11(d) CPC being

barred by limitation as the contention of the defendants is

that according to the averments made by the plaintiffs

themselves the cause of action accrued to them on

29.03.1996 when the agreement to sell was executed and

in any case it was stated to have arisen in their favour on

02.04.1999 on account of the death of Late Shri Joginder

Nath Bharadwaj. Though reference is made to the date

2.1.2009, the day they are allegedly dispossessed and the

date 5.2.2009 when they contend that the defendants were

puncturing the terrace. It has been contended that as a

matter of fact the plaintiffs are seeking specific

performance of an agreement dated 29.03.1996 on the

basis of which they are purported to have purchased the

property. Supporting documents dated 11.06.1996 are

relied upon by them for this purpose. It has been

contended that admittedly the plaintiffs are not in

possession and the suit has been filed after an expiry of 13

½ years by camouflaging the present suit for specific

performance as a suit for declaration while as they ought to

have filed a suit for specific performance within 3 years of

accrual of the cause of action. It has been further

contended that even if it is assumed that the present suit

for declaration could be filed, the suit is not maintainable

because in effect they ought to have claimed the

consequential relief of specific performance, as they do not

have the title to the property and they will have to first

perfect the same. Reference is made to Section 34 of the

Specific Relief Act which lays down that a suit for

declaration would not be maintainable if a party omits to

claim the consequential relief. It is contended that even

a suit for declaration is to be filed within three years and in

case the plaintiffs are claiming to have become owner on

the basis of the Will made by Late Shri Joginder Nath

Bharadwaj which was duly registered even then the

declaration ought to have been sought within three years.

15. The second submission of the learned senior counsel for

the defendants is that the plaintiffs are making contrary

averments in the plaint. Firstly, they are claiming that

they have purchased the property and the sale itself was

completed under Section 54 of the Transfer of Property Act

when the agreement to sell was executed. It has been

urged that Section 54 of the Transfer of the Property Act

specifically laid down as to how the sale is to be made and

it has been defined as a transfer of ownership in exchange

for a price paid or promised or part paid and part

promised. It further lays down that such sale in the case

of tangible immovable property of the value of Rs.100 and

upwards has to be made only by a registered document. It

has been contended that admittedly in the instant case the

document which is relied upon by the plaintiffs is not a

registered document, and therefore, it could not be treated

as a document of sale and consequentially no declaration

can be claimed as the document itself is inadmissible in

law. Further, it has been stated that the plaintiffs in para

10 has stated that they became the owner on the basis of

the registered WILL, the moment Late Shri Joginder Nath

Bharadwaj died on 02.04.1999. It has been contended by

the learned counsel that either the property has been sold

intervivos or it has been passed by way of testamentary

succession. Admittedly the WILL of Late Shri Joginder

Nath Bharadwaj has not been got probated, and therefore,

it could not be said that the property was passed on to the

plaintiffs on the basis of the WILL of Late Sh.Joginder Nath

Bharadwaj. In this regard, reference has been made to

case titled N. Ramaiah Vs. Nagaraj S. AIR 2001 Karnataka

395, which makes a distinction between the intervivos sale

and testamentary succession.

16. The third submission made by the learned senior counsel

for the defendants is that the suit has been cleverly drafted

by the plaintiffs only with a view to overcome the period of

limitation which admittedly accrued in favour of the

plaintiffs on 29.03.1996 and in any case according to their

own submissions it accrued on 02.04.1999 and a

meaningful reading of the plaint would clearly show that in

effect what the plaintiffs are claiming is specific

performance of the agreement to sell dated 29.03.1996 and

it is only with a view to get over the bar of limitation that

the plaintiffs have chosen to file the present suit after

expiry of 13 ½ years by camouflaging it as a suit for

declaration. The learned senior counsel for the plaintiffs

have placed reliance on cases titled N. V. Srinivasa

Murthy & Ors Vs. Mariyamma (Dead) (2005) 5 CSS 548

and Hardesh Ores (P) Ltd. Vs. Hede and Company

(2007) 5 SCC 614 in order to substantiate his plea.

17. The learned senior counsel Mr.A.S.Chandhiok for the

plaintiffs has contested this and urged that in view of the

order dated 27.04.2010 passed by the learned Appellate

Court where the defendants have unilaterally submitted

that they will not use the construction over the second

floor and the third floor and will keep the same locked and

unoccupied is in itself an admission made by the

defendants that the Suit has to be adjudicated on merits

by permitting the parties to adduce evidence.

18. So far as the merits of the case are concerned, the learned

senior counsel for the plaintiffs has stated that there is a

difference between the sale and mode of sale. It has been

contended that this difference is laid down in Section 54 of

the Transfer of Property Act itself. It has been stated that

sale is a transfer of ownership in exchange of price paid or

promised or part paid or part promised. It has been

contended that in the instant case admittedly Late Shri

Joginder Nath Bharadwaj had sold the entire terrace of the

first floor that is the second floor and half of the terrace of

the second floor i.e. the third floor and executed agreement

to sell, affidavit, receipt, etc. on 29.03.1996 and thus

having received the entire money, the sale was complete.

Late Sh.Joginder Nath Bharadwaj had executed a General

Power of Attorney/Special Power of Attorney/Will on

11.06.1996 which were duly registered before the Sub-

Registrar. On the basis of these documents, the plaintiffs

have become the owner of the suit property.

19. It has been further contended by the learned counsel that

the General Power of Attorney which is purported to have

been executed by Late Shri Joginder Nath Bharadwaj for

consideration in favour of the plaintiffs is an irrevocable

power of attorney which does not get lapsed on account of

the death of the deceased. It is stated that such a

contingency is specifically envisaged under Section 202 of

the Contract Act.

20. The learned senior counsel has also placed reliance on the

Division Bench judgments of this Court in case titled Asha

M. Jain Vs. The Canara Bank & Ors. 2002 II AD (Delhi)

734 wherein the High Court of Delhi has recognized the

sale of properties on the basis of General Power of

Attorney, under Section 202 and it has been stated to be a

valid defence under Section 53A of the Transfer of the

Property Act. The learned senior counsel has also cited

the judgment of the Apex Court in case titled Suraj Lamp

and Industries Pvt. Ltd. Vs. State of Haryana & Anr.

(2009) 7 SCC 363 to contend as not an authority on the

question as to whether the sale of power of attorney is

illegal or not, and therefore, not applicable to the facts of

the present case. The learned senior counsel has

referred to the judgment of Apex Court in case titled State

of Rajasthan & Ors. Vs. Basant Nahata, AIR 2005 SC

3401 where in the Apex Court had observed that an

Agreement to Sell executed in favour of an attorney is a

document which cannot be refused registration on the

ground that the State (of Rajasthan) has amended the

Registration Act and introduced Section 22A and issued

notification thereunder that such attorney be not registered

being opposed to public policies. It is stated that the Apex

Court had set aside the section 22A as unconstitutional.

Apart from these some more judgments have been cited

with which I will deal at appropriate stage.

21. So far as the averments made in the application that the

suit is barred by limitation in view of Article 58 of the

Limitation Act is concerned, it is contended that this is a

misconceived argument as the plaint is to be read as a

whole and not in an isolated manner. It is also stated that

the plaint cannot be rejected in part. Even if the

declaration is claimed to be barred it is stated that

plaintiffs are claiming possession as well for which period

of limitation is 12 years which has to be reckoned from

02.01.2009 or 05.02.2009. It is the case of the plaintiffs

that they were in possession of the terrace floor above the

first floor till 02.01.2009 when an attempt was made to

dispossess them. Further, on 5.2.2009, the plaintiffs had

noticed that the defendants were puncturing the terrace

and therefore, there was hardly any occasion for the

plaintiffs to come to the Court prior to that date. It is

stated that the averments made in the plaint, that the

cause of action accrued for the first time on 29.3.1996 is

only a background averment in the context that the

plaintiffs acquired the right to the suit property on

29.03.1996 and the dispute arose in the year 2009, and

therefore, the suit was filed in the year 2009 and it could

not be said to be beyond limitation. The learned senior

counsel placed reliance on the case titled C Natrajan Vs.

Ashim Bai & Anr. 2007 14 SCC 183 in order to contend

that the suit is within limitation.

22. On the basis of these averments, it has been contended

that the suit of the plaintiffs is well within time and the

application filed by the defendants is totally misconceived

and without any merits.

23. In the light of the aforesaid facts and the respective

submissions. The following points emerge to be considered

as to whether the plaintiffs are entitled to a declaration to

the effect that they are the owners of the suit property on

the basis of the agreement to sell dated 29.03.1996 or they

had became the owners of the suit property on the basis of

the registered Will dated 02.04.1999 when Late Shri

Joginder Nath Bharadwaj had died or alternatively whether

the plaintiffs were required to file a suit for specific

performance of the agreement dated 29.03.1996.

24. Section 54 of the Transfer of Property Act, 1882 defines

sale as under:

54. "Sale" defined.- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

25. A perusal of the aforesaid Section clearly shows that sale is

a transfer of ownership in exchange of a price which is paid

or promised to be paid and it is further stated that if the

sale pertains to an immovable property the value of which

is more than Rs.100/- and upwards the document is to be

compulsorily registered. Section 17(1)(b) of the

Registration Act, 1908 also makes non- testamentary

instruments which purport or operate to create, declare,

assign, limit or extinguish, whether in present or in future,

any right, title or interest, whether vested or contingent, of

the value of one hundred rupees and upwards, to or in

immovable property, as compulsorily registerable.

26. A reading of the aforesaid two provisions together would

clearly show that no right or title or interest in any

immovable property passed on to the purchaser until and

unless the document is duly registered. In the instant

case, the plaintiffs of their own admission have stated that

they have purchased the terrace of the first floor vide

agreement to sell dated 29.03.1996 which is not a

registered document. First of all, the said document in

question is an agreement to sell and not a sale document

as is sought to be claimed by the plaintiffs. Even if it is

assumed to be a sale document, as it has been contended

by the plaintiffs, even then the document being an

unregistered document cannot be taken cognizance of,

therefore, the contention which is sought to be made by the

learned counsel for the plaintiffs that there is a distinction

between the sale and the mode of sale may be right but the

fact remain that the right or title or interest in the

immovable property does not pass on to the plaintiffs until

and unless they seek specific performance of the said

agreement on the basis of the aforesaid documents.

Further, according to Article 54 of the Schedule of the

Limitation Act, the said suit for specific performance is to

be filed within three years from the date of accrual of cause

of action or within three years from the date of refusal by

the defendants to perfect the title of the plaintiffs. While

as in the instant case, the suit is filed for declaration to the

effect that they should be declared owners. Plaintiffs

cannot be declared as owners on the basis of an inchoate

title to the property. The plaintiffs are admittedly not in

possession of the suit property. Even if it is assumed

that the plaintiffs have not filed the suit for specific

performance they ought to have claimed consequential

relief under Section 34 of the Specific Relief Act wherein

they were seeking declaration by claiming that the

defendants be directed to perfect their title by execution of

certain documents in terms of Section 54 of Transfer of

Property Act pertaining to sale and mode of sale and by

getting them registered under Section 17 (1) (b) of the

Registration Act, 1908 but this has not been done. The

plaintiffs have actually camouflaged the present suit to

overcome the bar of limitation which admittedly in a suit

for specific performance under Article 54 of the Limitation

Act is three years. If it is taken to be a suit for declaration

even then the period of limitation is three years which is to

be reckoned, when the right to sue first accrues. The

plaintiffs of their own admission have stated that the right

to sue first accrued on 29.3.1996 and therefore, the said

period of three years comes to an end in 1999. According

to Section 9 of the Limitation Act, the period of limitation

cannot be stopped once it starts running. Therefore, the

period of limitation for seeking declaration is not to be

reckoned from 2.1.2009 or 5.2.2009 as claimed by the

plaintiffs. So far as the question of possession is

concerned, it is only a consequential relief to the

declaration or specific performance which the plaintiffs

have failed to claim within the period of limitation of three

years, reckoning either from 29.3.1996 or 11.6.1996 or

2.4.1999 and hence the suit, on the meaningful reading of

the entire plaint, is barred by limitation both under Article

54 or 58 of the Schedule to the Limitation Act.

27. As a matter of fact, a perusal of the agreement to sell itself

shows that the plaintiffs were under an obligation to file a

suit for specific performance if the defendant‟s predecessor

in interest defaulted, it may be pertinent here to refer to

few paragraphs of the agreement to sell dated 29.03.1996

which will clearly show that this was only an agreement to

sell and the plaintiffs who are mentioned as parties 1, 3

and 4 in the said agreement were required to seek

necessary permission from DDA as well as impleading co-

operative housing society for perfecting their title which

admittedly has not been done by them. The relevant

clauses of the agreement to sell are as under:

"Clause 4: That the Second, Third and Fourth parties shall realize all the profits or the said terrace on the first floor after the date of execution of this agreement and the first party shall not create any charges or make any claim.

Clause 8: That the second, third and fourth parties shall obtain all the permissions, necessary approvals to complete the sale transaction including the following:

(a) Permission from the DDA to transfer the

aforesaid terrace right on first floor only of property in favour of the second, third and fourth parties or his/her/their nominee(s) at the cost of the second party.

(b) Permissions from the competent authority under the Urban Land (ceiling & Regulations) Act, 1976 if required, or in the alternative the first party shall produce the necessary affidavits(s), declarations or prescribed performas.

(c) On any other permission that may be required to transfer the said terrace right of the first floor only in favour of the second, third and fourth parties at the time of the registration of the sale deed at his/her/their own cost. The unearned increase, stamp duty, registration charges, conveyancing etc. shall be paid and borne by the second, third and fourth parties and in that even the first party shall not make any further claim demand and objection whatsoever. But the first party would provide necessary help, would provide necessary information and sign the execute required papers/documents; if so required by the concerned authority to do all or nay of the acts mentioned in point no.9.

Clause14: That in case the first party does not perform its part of the contract then the second, third and fourth parties shall be entitled to enforce this contract by way of specific performance before the appropriate court at the risk and cost of the first party"

28. A perusal of the aforesaid clauses clearly show that the

plaintiffs were under an obligation to apply to the DDA for

obtaining necessary permission for perfecting their title, by

way of sale in their favour, for which there is a limitation

contained in para 6(a) of the perpetual sub lease deed

which reads as under:

"The Sub-lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the residential plot in any form or manner, benami or otherwise, to a person who is not a member of the Lessee.

29. It may be pertinent here to mention that the perpetual sub

lease which is an admitted document between the parties

and marked as exhibit P-I dated 18.12.1968 is executed for

and on behalf of the President of India by Cooperative

Housing Building Society as a lessee and Late Shri

Joginder Nath Bharadwaj as a sub lessee by way of

tripartite agreement in terms of Government Grants Act

1998. Section 3 of the Government Grants Act, 1985

clearly lays down that any provision of the perpetual sub

lease or lease granted under Government Grants Act will

have the same force as a provision of law, therefore, the

agreement to sell which is treated as a sale document by

the plaintiffs, apart from other infirmities as have been

stated hereinabove is also hit by Section 3 of the

Government Grants Act, 1985 because Clause 6(a) of the

perpetual sub lease deed will supersede the terms and

conditions of the agreement and prior permission for sale

had not been obtained by the plaintiffs as envisaged in

their own agreement. Order 7 Rule 11(d) CPC lays down a

contingency of rejection of the plaint if it is barred by any

law.

30. Further in the agreement to sell itself it has been envisaged

that in case any of the contracting parties, namely, the

plaintiffs and the defendants do not adhere to the terms

and conditions of the agreement to sell dated 29.03.1996,

the aggrieved party have an option to go for a specific

performance. In the instant case, the plaintiffs having

been aggrieved admittedly ought to have filed a suit for

specific performance and not a suit for declaration as has

been done by them. In this regard, I agree with the

submissions made by the learned counsel for the

defendants that the plaintiffs have camouflaged the present

suit by filing a suit for declaration so as to escape the

period of limitation which is admittedly three years in

respect of suit for specific performance in terms of Article

54 of the Limitation Act. The learned counsel for the

defendants has rightly cited N. V. Srinivasa Murthy & Ors

Vs. Mariyamma (Dead) where the Apex Court has upheld

the rejection of a plaint because the party had omitted to

claim the relief warranted on the facts of the case only with

a view to get around the bar of limitation. Also, in case

titled Hardesh Ores (P) Ltd. Vs. Hede and Company the

order of rejection of plaint was upheld by the Apex Court

after observing that the plaint is to be read as a whole for

the purpose of arriving at such a conclusion, has been fully

complied with in the instant case. In the present case, I

have not referred to the written statement at all and the

plaint of the plaintiff has been seen as a whole. Further

reliance can safely be placed on the judgment of the Apex

Court in T.Arivandandam Vs. T.V. Satyapal SCC p. 468.

"The trial court must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a

clear right to sue, it should exercise its power under Order VII Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the part searchingly under Order 10 CPC. An activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Chapter 11) and must triggered against them."

31. The contention of the learned counsel for the plaintiffs is

that Late Shri Joginder Nath Bharadwaj had executed a

General Power of Attorney on 11.06.1996 authorizing the

plaintiffs to sell the property or part of property sold to

them notwithstanding the fact that Late Shri Joginder Nath

Bharadwaj had died. No doubt, Section 202 clearly lays

down that where the principal executes a General Power of

Attorney and a document of agency in favour of other

persons to discharge an obligation qua the person in whose

favour the attorney is executed the said attorney does not

come to an end on account of death or insanity of the

principal.

32. Section 202 of the Contract Act, 1872 reads as under:

"202 Termination of agency, where agent has an interest in subject matter.- Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations:

(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."

33. A perusal of the aforesaid Section would clearly show that

the power of agency does not come to an end on account of

the insanity or the death of the principal provided the

document of agency confers a power on the agent to do

something for his own benefit, like in illustrations 1 and 2,

the sale of the property and payment thereof to the agent

himself in discharge of debts.

34. If we look at the General Power of Attorney which is sought

to be relied upon by the plaintiffs in the instant case, at the

very outset it must be mentioned that it does not say that

it is an irrevocable power of attorney. Even if this factor is

assumed in favour of the plaintiff for the sake of argument,

further, a reading of the General Power of Attorney does

not show that it meets the requirements as envisaged

under Section 202 of the Contract Act which in the instant

case would be to perfect the title of the plaintiffs

themselves on account of having paid an amount of

Rs.9,50,000/- to Late Shri Joginder Nath Bharadwaj.

35. The plaintiffs in support of their contentions have relied on

Clause 9 of the General Power of Attorney which read as

under:

"To execute, sign and present for registration, before proper registering authority, proper sale/conveyance deed, for conveying my rights, interests, liens and titles in the property only terrace of the said property, in favour of the intended purchaser(s) and for the purpose of conveying the same, absolutely forever in favour of the intended purchaser(s) or his/her/their nominee

(s) and to do all other acts, deeds and things which are necessary for the purpose, i.e. to receive the consideration and to admit the receipt thereof, and to deliver the possession to the said purchaser(s), or his/her/their nominee(s) either physical or constructive as may be feasible.

36. A perusal of the aforesaid clause shows that the agent,

namely, the plaintiff no.1 Ripu Daman Haryal is only

authorized to appear before the registering authority and

execute the sale deed, conveyance deed or create right or

title or interest in the suit property in favour of "intending

purchaser" (emphasis added) and for the purpose of

conveyance of the same.

37. Similarly in Clause 15 of the General Power of Attorney the

agent namely the plaintiff no. 1 herein is permitted to

further delegate the power of attorney in favour of any

other person to perform all the acts which he is entitled to

do under the power of attorney with liberty to cancel,

withdraw or revoke the said powers conferred on the

attorney so appointed by the plaintiff no.1.

38. Thus, the aforesaid perusal of the General Power of

Attorney clearly shows that the plea of the plaintiffs is

totally misconceived. In my considered opinion, keeping

in view the language of the General Power of Attorney,

Section 202 of the Contract Act, 1872 is not at all

applicable to the facts of the present case.

39. The other contention of the learned senior counsel for the

plaintiffs has been that the General Power of Attorney is a

recognized mode of sale under Section 202 of the Contract

Act as well as under Section 53A of the Transfer of Property

Act. Reliance in this regard has been placed on case

titled Asha M. Jain Vs. The Canara Bank & Ors. 2002 II

AD (Delhi) 734.

40. Before referring to Asha M. Jain‟s case (Supra) it may be

pertinent here to borne in mind that the Apex Court in

case titled Haryana Financial Corporation Vs. Jagdamba

Oil Mills 2002 (3) SCC 496 has specifically laid down that

while applying the law laid down in judgment of the Apex

Court to the facts of a particular case, the facts of the said

reported judgment must be seen and co-related to the facts

of the case to which the judgment is sought to be applied.

Seen in this background, it has been noticed that most of

the judgments which have been referred by the plaintiffs

are the judgments which do not apply to the facts of the

present case. In Asha M. Jain's case (supra) the question

was involved as to whether the property of a person who

was claiming to be the owner on the basis of the Will and

General Power of Attorney coupled with the transfer of

possession could be attached or whether he could be

considered as the owner. It was in this context that the

Court upheld the plea that such a person was the owner

and was competent to use the said documents coupled

with the possession as a shield envisaged under Section 53

A of the Transfer of Property Act. In the present case, the

facts are totally different, the plaintiffs are not in

possession and the documents on the basis of which they

are claiming the ownership are not registered though they

require compulsory registration and the Will which is

sought to be relied upon as a document of title cannot be

considered as a document of title. Even probate on the

basis of said Will has not been obtained, therefore, Asha

M. Jain's case (supra) is totally distinguishable from the

facts of the present case. Similarly, the judgment in

State of Rajasthan & Ors. Vs. Basant Nahata, AIR 2005

SC 3401 is also distinguishable because the facts are

totally different.

41. In the instant case, I have already observed that Section

202 of the Contract Act does not apply to the facts of the

present case and so far as Section 53A of the Transfer of

Property Act is concerned, that can only be used as a

shield not as a sword and that shield could have been used

by the plaintiffs provided that they were in possession of

the first floor of the suit property. The plaintiffs could have

defended their possession in case they were having the

same against the defendants if they brought any action.

According to the plaintiffs own admission they were not in

possession of the suit property at the time of the filing of

the suit. In this regard I may state the judgments which

have been relied upon by the plaintiffs in Chetak

Construction Ltd. Vs. Om Prakash & Ors. AIR 2003 M.P.

145, Bhulkoo Ghaslya Vs. Hiriyabai AIR (36) 1949 Nag.

415, Srimant Shamrao Suryavanshi & Anr. Vs. Prahlad

Bhairoba Suryavanshi (dead) by LRs. & Ors. 2002 (3)

SCC 676 instead of supporting the plaintiffs are actually

supporting the defendants because they are in possession.

The plea stating that the suit for possession could be filed

within a period of 12 years from the date of dispossession

does not apply to the present case because the possession

is only a consequential relief to the specific performance or

the declaration which is barred as on date when the suit

was filed.

42. The judgment cited by the learned senior counsel for the

plaintiffs on the question of rejection in case titled Popat

and Kotecha Property Vs. State Bank of India Staff

Association (2005) 7 SCC 510 does not apply to the facts

of the present case as in the reported judgment a disputed

question of fact was involved and it was in that context

that the Apex Court observed that the suit ought not to

have been rejected as being barred by limitation. While as

in the present case, there is no dispute about the

documents having been exhibited and in any case

averments made in the plaint have been taken to be

correct. Similarly, in the case titled C Natrajan Vs.

Ashim Bai & Anr. 2007 14 SCC 183 where it has been laid

down that the allegations made in the plaint if taken to be

correct in its entirety, must be the only ground for

consideration as to whether the suit is barred by limitation

or not. It has been specifically observed in the said

judgment that the defence of the defendants is not taken

into consideration and further only the applicability of one

or the other provisions of the Limitation Act was

considered. The ownership cannot be decisive for the

purpose of determining the question as to whether the suit

of the plaintiffs is falling under one Article or the other

contained in the schedule to the Limitation Act.

43. I have gone through this judgment also and I do not feel

that the said judgment supports the plaintiffs case in any

manner. The defence of the defendants in the present

case has not been considered at all. The averments made

in the plaint having been taken to be correct and the

question as to whether the suit is barred by limitation or

not has been discussed from all possible angles with

reference to Article 54 for Specific performance and

declaration under Article 58. So far as the question of

possession is concerned, no doubt the Article 65 envisages

that the same can be claimed within 12 years but the

possession in the present case is only a consequential relief

and admittedly the plaintiffs are not in possession as on

the date of the filing of the suit according to their own

averments, therefore, the period of limitation of 12 years

does not help the plaintiffs so as to bring the suit for

declaration within the period of limitation as is sought to

be done by the plaintiffs. Similarly, I have gone through

the judgments in the case title Seshumull M. Shah Vs.

Saye Abdul Rashid & Ors AIR 1991 Karnataka 273 and

Roop Lal Sathi Vs. Machhattar Singh Gill (1982) 3 SCC

487, the same also does not help the plaintiffs in any

manner whatsoever. The plaintiff‟s plaint has not been

rejected in part, it has been rejected in its entirety.

44. So far as the contention of the learned senior counsel for

the plaintiffs that in view of the order dated 27.04.2010

passed by the Division Bench of this Court, after recording

the unilateral statement of the defendants that they shall

keep the disputed portion locked and unoccupied and

consequentially the suit cannot be rejected under Order VII

Rule 11 (d) CPC, is concerned, I do not agree with the

same. This is on account of the fact that it amounts to a

waiver with regard to a provision of law or its applicability.

The question of law of limitation is a question between the

Court and the party seeking to get his grievance redressed.

Even if a party concedes, as suggested by the learned

senior counsel, I do not think it can prevent or prohibit the

Court from considering as to whether the suit is within

limitation or not. Even if it is assumed that this was a

concession or waiver by the defendants before the

Appellate Court, I do not think it estopps the defendants

from raising this plea as there is no estoppel against law.

Reliance can be placed on Faqir Chand Vs. Ram Rattan

Bhanot AIR 1973 SC 921.

CONCLUSION:

45. For the foregoing reasons, I reach to the following

conclusions:

(i) That the case of the plaintiffs that they had

purchased the property on the basis of an agreement

to sell dated 29.03.1996 and the supporting

documents dated 11.06.1999 and thus became the

owners thereof is not substantiated on account of the

fact that document dated 29.03.1996 is only an

agreement to sell and not a sale document as the

document is not a registered document. The

General Power of Attorney dated 11.06.1996 is not a

document which falls within the parameters of

section 202 of the Indian Contract Act.

(ii) The question of the plaintiffs being deemed to be the

owners of the suit property on the basis of the

agreement to sell, General Power of Attorney, Receipt,

Will etc. in terms of case titled Asha Jain Case

(Supra) is not correct and sustainable in the facts of

this case. The agreement to sell is unregistered.

The will is not probated and even if it is taken to be a

document, it does not confer title. The probate

Court only determines the correctness of the Will.

(iii) A reference has been made to Section 53A of Transfer

of Property Act by the plaintiffs but it does not save

them as Section 53A of the Transfer of Property Act is

only a shield not a sword and this shield could have

been set up by the plaintiffs only if they were in

possession and against the action brought against

them and therefore, this also does not help the

plaintiffs in any manner.

(iv) According to the agreement to sell dated 29.03.1996

itself the plaintiffs were required to seek specific

performance of the agreement to sell as is envisaged

therein and according to Article 54 of the Limitation

Act the said suit has to be instituted within a period

of three years from the date of accrual of cause of

action. Even if the suit for declaration is said to be

correct, even then no relief of declaration can be

granted because consequential relief of specific

performance is not claimed and this declaration suit

is hit by Section 34 of the Specific Relief Act.

Secondly, even if the declaration is to be sought it

had to be within 3 years according to Article 58 of the

Limitation Act from the date of first accrual of cause

of action which according to the plaintiff accrued on

29.3.1996. According to Section 9 of the Limitation

Act, once the period of limitation starts, it does not

stop and therefore, no help can be sought by simply

saying that the cause of action further arose on

2.1.2009 or 5.2.2009.

(v) The plaintiffs, themselves have stated in para 18 that

the cause of action accrued to them on 29.03.1996

firstly and secondly on 02.04.1999 and if the period

of limitation is to be reckoned from either of the two

dates the said period of limitation has come to an end

long back on 01.4.2002 in both the cases of specific

performance and declaration.

(vi) It is correct that according to Article 65 of the

Limitation Act, the period of limitation for filing the

suit for possession is 12 years but for filing a suit for

possession the plaintiffs must have a title to the

property which admittedly according to their own

averments there is none as there is inchoate title.

They are seeking declaration which as a matter of fact

is also not sustainable as they ought to have filed a

suit for specific performance.

(vi) The suit on a meaningful reading of the plaint is a

suit for specific performance. Even if it is taken to

be a suit for declaration, in my view, the suit is

barred by limitation on account of having not been

filed within a permissible period of three years either

in terms of Article 54 or Article 58 of the Limitation

Act, if the period of limitation is reckoned from any of

the dates i.e. 29.03.1996, 11.06.1996 and

02.04.1999.

43. For the foregoing reasons, the suit is rejected as being

barred by limitation under Order VII Rule 11 (d). Since the

suit itself has been dismissed as barred by limitation, the

question of considering the application of the plaintiffs

under Order VI Rule 17 CPC for amendment of the plaint

does not arise and the same is also dismissed.

46. The order of stay granted by this Court on 13.2.2009 and

modified subsequently stands vacated.

47. File be consigned to the Record Room.

V.K. SHALI, J.

JULY 04, 2011 KP