Ajaypal Singh & Ors vs Shamsher Singh
2011 Latest Caselaw 5455 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA 373/2011

%                                                 14th November, 2011

AJAYPAL SINGH & ORS                                       ..... Appellants

                          Through :    Mr. S.K. Duggal, Advocate.


                    versus


SHAMSHER SINGH                                           ..... Respondent

                          Through :   Mr. Ajay Kapur, Sr. Advocate with
                                      Mr. Harshbir Singh Kohli and
                                      Mr. Dinesh Kumar, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

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


VALMIKI J. MEHTA, J (ORAL)

1.       The challenge by means of this Regular First Appeal filed under

Section 96 of Code of Civil Procedure is to the impugned judgment and

decree dated 31st January, 2011 passed by the Trial Court. By the said

impugned judgment and decree the Trial Court has dismissed the suit

for declaration and possession filed by the appellants/plaintiffs with

RFA No. 373/2011                                                          Page 1 of 7
 respect to the suit property being house No. 127, Zamrud Pur Village,

New Delhi. The suit property is built on a plot of 133 sq. yards.

2.     The brief facts of the case are that the appellants/plaintiffs

claimed to be the owners of the suit property and thus prayed for a

declaration to that effect.       In the plaint it was stated that the

documents executed by their father late Shri Shanti Swarup in favour

of the original defendant Shri Shamsher Singh were forged and

fabricated documents and which be declared to be of no effect. The

case of the plaintiffs was that the suit property is an ancestral property

and their father was not the sole owner of the said property and hence

could not transfer the same to the original defendant, now represented

by his legal heirs/respondents.

3.     Original defendant laid out a defence that rights in the property

in question was purchased by means of an Agreement to Sell, Power of

Attorney, affidavit, receipt and Will dated 15th March, 1985. The will in

question was registered.    By such documents the original defendant

acquired rights in the property by virtue of Section 53A of the Transfer

of Property Act, 1882 (doctrine of part performance) and Section 202

of the Indian Contract Act, 1972 (irrevocability of a power of attorney

given for consideration).   It was pleaded that originally the defendant

was a tenant in the suit property which was taken on rent on 4 th June,


RFA No. 373/2011                                                       Page 2 of 7
 1974 at Rs.300/- per month and subsequently the same was purchased

by means of the aforesaid documents of the year 1985. It was, thus,

pleaded that the suit was liable to be dismissed.

4.        After completion of pleadings, following issues were framed by

the Trial Court:-

     1.     "1. Whether the plaintiff is entitled to the declaration,
                as prayed for? (OPP)
     2.
     3.      2. Whether plaintiffs are entitled to possession of the
                suit property i.e., House No. 127, Zamrudpur
                Village, New Delhi? (OPP)
     4.
     5.     3. Relief."


5.        The trial Court dismissed the suit on two main grounds. The first

ground is that the appellants failed to prove their title in the suit

property and the second main ground was that the suit is barred by

limitation.

6.        Learned counsel for the appellants similarly argued before this

Court that there was no issue which was claimed as limitation and that

the property was an ancestral property and therefore their father late

Shri Shanti Swarup has no rights to transfer the property claiming it to

be his exclusive property.

7.        In my opinion, the appeal is without any merits and is, therefore,

liable to fail. The appellants, who were plaintiffs in the trial Court if


RFA No. 373/2011                                                         Page 3 of 7
 they claimed to be the owner of the suit property, the onus of proof

was thus admittedly on them to show that they were the owners of the

property and that their father was not the sole owner of the property.

It is admitted by learned counsel for the appellants that no documents

have been filed at all to show that the suit property was an ancestral

property. It is however, argued that the documents of the year 1985

by which rights of the property were transferred only mentions the

father to be the owner without mentioning how the title was acquired.

In my opinion, the appellants were the plaintiffs in the trial Court, and

therefore the onus lay on them to show that they were the owners of

the suit property and not the other way round.

8.     In this case, the third party rights had come into existence since

1985 in favour of the respondents and, therefore, it is not possible to

lightly disturb their ownership and possession qua the suit property

merely because the appellants have laid out a case that the father was

not the sole owner. I may note that at no point of time during the life

time of the father, the appellants had challenged the rights of the

original defendant in the suit property and it was only after the death

of the father that the subject suit came to be filed.     Accordingly, I

concur with the findings of the trial Court that the appellants have

failed to discharge the onus to entitling them to declaration and


RFA No. 373/2011                                                      Page 4 of 7
 possession as prayed for.

9.     The argument of the learned counsel for the appellants that

there was no issue of limitation and, therefore, the suit should not have

been dismissed as being barred by limitation is an argument which is

bound to fail because, firstly, a specific issue was framed that whether

the plaintiff was entitled to declaration with respect to the cancellation

of the documents executed in the year 1985. Once the onus of this

issue is upon the appellants/plaintiffs, they had to show that they were

entitled to declaration and the trial Court could have therefore looked

into the issue whether such claim for declaration is within limitation for

the appellants/plaintiffs to be entitled to the same. Also, I may note

that as per Section 3 of the Limitations Act, 1963 every Court is bound

to consider the issue of limitation although no such defence is laid out.

It   cannot   be   disputed   that   the   entitlement   with   respect   to

declaration/cancellation of documents is governed by Article 58 of

Schedule (1) of the Limitation Act, 1963 as per which a suit to

challenge the documents has to be filed within three years from the

date when the knowledge of the document is acquired by the plaintiff.

In the present case, as noted by the trial Court, the respondents had

made a complaint to the police Ex.PW1/X dated 26th May, 1997 and

which also mentions about the earlier complaint dated 9th November,


RFA No. 373/2011                                                          Page 5 of 7
 1996. Admittedly, the appellants were summoned to the Police Station

pursuant to these complaints and this aspect is also admitted in the

pleadings and as a result of which they had come to know of the

documents executed by their father in favour of the defendant. The

suit, however, was filed fifteen years after the execution of the

documents in the year 1985 v.i.z. on 6th July, 2000.                    I have already

noted that during the life time of the father, the plaintiffs/appellants

never claimed any rights in the suit property as the rights of the same

were sold by their father by documents in the year 1985.                     The trial

Court in my opinion is therefore justified in arriving at a finding that the

suit was barred by limitation.

10.    A   civil    case    is    decided        on    balance     of    probabilities.

Appellants/plaintiffs having failed to discharge the onus to show that

the property was an ancestral property, the trial Court rightly

dismissed the suit. Merely because two views are possible this Court is

not entitled to interfere merely because one plausible and possible

view has been taken by the trial Court, unless such view is perverse

and causes grave injustice.           I do not find any perverseness in the

judgment      and    nor    any      injustice    has     been     caused     to   the

plaintiffs/appellants.     Infact,    injustice       shall   be   caused     to   the

respondents as rights in the property were purchased way back in the


RFA No. 373/2011                                                                    Page 6 of 7
 year 1985 and no suit was filed during the life time of the father.

11.    In view of the above, the present appeal is dismissed leaving the

parties to bear their own costs. Trial Court record be sent back.




                                          VALMIKI J. MEHTA, J.

NOVEMBER 14, 2011 AK