Ruma Kaur & Ors. vs Joginder Singh Raina & Ors
2014 Latest Caselaw 1839 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 4th April, 2014

+                           CS(OS) No.2595/2008

RUMA KAUR & ORS.                                            ..... Plaintiffs
                            Through:      Mr. Bhupesh Narula & Mr. Yash
                                          Tandon, Advs.

                                       Versus

JOGINDER SINGH RAINA & ORS.                     ..... Defendants
                  Through: Mr. G.S. Chaturvedi, Adv. for D-1&2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


IA No.23346/2012 (of defendant No.2 u/O VII Rule 11 CPC)


1.

The two plaintiffs i.e. Ms. Ruma Kaur and her husband Sh. Mohan

Singh have instituted the present suit on 07.11.2008 for recovery of

possession of:

(i) property No.A-126 (New No.JE-34 and JE 34A), Gupta

Colony, Khirki Extension, Malviya Nagar, Delhi; and,

(ii) Flats no. F-9/51-52, Sector 15, Rohini, Delhi,

from the four defendants together with mesne profits / damages for

use and occupation.

2. Summons of the suit were issued. A written statement has been

filed on behalf of the defendants 1&2 i.e. Sh. Joginder Singh Raina and

Ms. Harminder Kaur. Though the defendant No.4 Mr. Parminder Rana

was also served and had appeared through advocate on 23.03.2009 but

failed to appear thereafter and has also not filed any written statement.

The defendant no.3 was ordered to be served by publication. In the

meanwhile, the plaintiff no.2 Sh. Mohan Singh died and an application

for substitution of his legal representatives was filed and which was

allowed on 13.10.2011. The plaintiffs have filed replication to the written

statement of the defendants 1&2. The defendant no.3 Mr. Dinesh Kumar

and defendant no.4 Mr. Parminder Rana were proceeded ex parte on

19.12.2011.

3. On the pleadings of the plaintiffs and the defendants no.1&2, the

following issues were framed on 30.10.2012:

"(i) Whether the plaint does not disclose any cause of action?

OPD

(ii) Whether the suit filed for possession is not maintainable without the relief of declaration? OPD

(iii) Whether the suit filed is barred by limitation? OPD

(iv) Whether the plaintiffs are entitled to possession of the properties as claimed in the prayer? OPP

(v) Whether the plaintiffs are entitled to mesne profits? If so, at what rate and for what period? OPP

(vi) Whether the plaintiffs are entitled to interest? If so, on what amount, at what rate and for what period? OPP

(vii) To what relief, if any, are the plaintiffs entitled?"

The counsel for the defendants no.1&2 on the same date stated that

an application under Order VII Rule 11 of the CPC shall be filed and has

thereafter filed this application and to which reply has been filed by the

plaintiffs.

4. This application was listed for hearing on 02.04.2014 when the

counsel for the plaintiffs did not appear and sent a proxy counsel who had

no knowledge of the case. The counsel for the applicant / defendants

no.1&2 was heard and the hearing adjourned to 03.04.2014 for the

counsel for the plaintiffs to address arguments. The counsel for the

plaintiffs addressed arguments on 03.04.2014 but upon being quizzed,

sought adjournment for today, stating that this is a legal aid matter and he

will have to take instructions from the plaintiffs. Today, the counsel for

the plaintiffs has not appeared and has sent a message that this Court may

pass appropriate orders.

5. The applicant / defendants no.1&2 seek rejection of the plaint on

the ground that the present suit for possession of immovable properties,

without seeking the relief of declaration qua the documents under which

the defendants hold the property, is barred by time. Reliance in this

regard is placed on Raj Kumari Garg Vs. S.M. Ezaz (2012) 129 DRJ

284.

6. To understand the aforesaid contention of the counsel for the

defendants, it is necessary to analyze the plaint. The case of the plaintiffs

as set out in the plaint, though long-winded and incomprehensible, is

found to be:

(a) that the defendant no.1 while working as Manager of the

branch at Agartala, Gauhati of the Punjab & Sind Bank,

gained the trust of the plaintiffs who were then resident of

Agartala;

(b) that the defendant no.1 induced the plaintiffs to invest their

hard earned money to buy a petrol pump in USA and to

migrate to USA;

(c) that the plaintiffs under such inducement by the defendant

no.1 sold and disposed of their entire movable and

immovable properties and shifted to Delhi and also handed

over Rs.22,00,000/- in cash for safe custody of the defendant

no.1 for use as consideration for purchase of petrol pump in

USA;

(d) that the plaintiffs were also induced to buy a 200 sq. yds.

plot at Malviya Nagar and Janta flats at Delhi as an interim

arrangement for use of the sale proceeds thereof for buying

the petrol pump in USA;

(e) that the defendant no.1 however induced the plaintiffs to

have the purchase documents of the said properties executed

jointly in the name of the plaintiff no.1 and defendant no.1,

representing that this will enable him to manage the said

properties;

(f) that the plaintiffs shifted to Delhi in the year 1996;

(g) that the plaintiffs lodged complaints dated 20.09.2001 and

21.02.2002 against the defendants; however upon the said

complaints not meeting with any success, the plaintiffs filed

a complaint case and which resulted in FIR No.95/2003 of

police station Prashant Vihar under Sections 409/420/467/

471/323/506/120B IPC;

(h) that during the investigation by the Crime Branch pursuant

to the aforesaid FIR, on 22.04.2004 documents of property

No.A-126, Khirki Extn., Malviya Nagar, Delhi were seized

from the defendant no.1 and which showed the plaintiff no.1

and the defendant no.1 to have on 21.04.1988 entered into an

agreement to purchase the said property from one Sh. Ashok

Kumar Gupta; however, the defendant no.2 Ms. Harminder

Kaur who is the sister of defendant no.1 was found to be the

GPA holder of the said property since the year 1988;

(i) that the defendant no.2 claims to have bought the said

property No.A-126, Khirki Extn., from the plaintiff no.1 and

the defendant no.1 vide agreement to Sell dated 08.11.1996;

(j) that the said Agreement to Sell is a fabricated document and

no sale consideration was paid by the defendant no.2 to the

plaintiff no.1;

(k) that on 22.11.1996, the defendant no.2 sold 100 sq. yds. out

of this property to the defendant no.3 Mr. Dinesh Kumar;

(l) that the documents were referred to the Government

Examiner of Questioned Documents (GEQD), Shimla who

had opined that signatures on the revenue stamp of the

receipt did not match with the specimen / admitted

signatures of the plaintiff no.1;

(m) that the defendant no.1 had also sold the two flats aforesaid

at Rohini belonging to the plaintiffs and had not given any

sale proceeds thereof to the plaintiffs;

(n) that the investigations pursuant to the FIR revealed that two

property dealers claimed to have paid the sale proceeds of

the said flats to the defendant no.1;

(o) that the defendant no.1 has utilized the monies of the said

two flats at Rohini which were worth Rs.7,00,000/-, without

accounting for the same to the plaintiffs;

(p) that the ground floor, basement and second floor of JE-34,

Khirki Extn., New Delhi was attached by the Court of the

Metropolitan Magistrate in the case relating to the FIR

aforesaid;

(q) that thus the possession of the defendants is unauthorized

and unlawful;

(r) That portion of property no.A-126 (new No.JE-34), Khirki

Extn., New Delhi has been transferred to the defendants

no.3&4;

(s) that the cause of action accrued to the plaintiffs against the

defendants in the year 2001 when for the first time the

plaintiffs came to know about the illegal acts of the

defendants no.1&2 and when the defendants did not return

the possession of the property.

7. It is the case of the defendants no.1&2 in their written statement:

(i) that the suit for possession of immovable property, without

any relief for cancellation of the registered and legal

documents with respect to the property, is not maintainable

and is time barred as the limitation for seeking declaration is

three years only;

(ii) that the plaintiff no.1 and the defendant no.1 executed legal

documents i.e. Agreement to Sell, money receipt, affidavit,

letter of possession, GPA and Will all dated 08.11.1996 in

favour of the defendant no.2 in respect of property bearing

No.JE-34 and JE-34A, old Gupta Colony, Khirki Extn.,

Malviya Nagar, New Delhi;

(iii) that the plaintiff no.1 has nowhere denied her signatures on

all these documents except for her signature across the

revenue stamp in the money receipt dated 08.11.1996;

(iv) that even if the money receipt were to be ignored, the

plaintiff no.1 is bound by the other documents;

(v) that owing to the aforesaid documents, the plaintiff no.1 has

no title, right or interest in property JE-34 and JE-34A,

Khirki Extn., New Delhi;

(vi) denying the pleas of inducement and contending that the

relationship of the father of the plaintiff no.2 and defendant

no.1 was only of landlord and tenant at Agartala and nothing

more;

(vii) that the plea of purchase of petrol pump at USA is inherently

improbable;

(viii) that the averments in the plaint are vague;

(ix) that the plaintiff no.1 and the defendant no.1 had jointly

purchased the 200 sq. yds. plot in Khirki Extn., Malviya

Nagar, an unauthorized colony, for an amount of Rs.30,000/-

equally contributed by the plaintiff no.1 and the defendant

no.1 and had on 08.11.1996 sold the same vide documents

aforesaid to the defendant no.2 for a consideration of

Rs.4,60,000/- and the plaintiff has admitted her signatures

thereon except on the revenue stamp on the receipt of

money; that the GPA executed by the plaintiff no.1 in favour

of the defendant no.2 was registered with the photograph of

the plaintiff no.1;

(x) that the plaintiff no.1 has not given particulars of any

properties sold at Agartala;

(xi) that the order of attachment of the Court of Metropolitan

Magistrate was set aside by the Additional Sessions Judge

though the defendant no.2 had given an undertaking that the

property will not be sold without the permission of the

Court;

(xii) that the defendant no.2 is the rightful owner of the flats on

the ground floor of property No.JE-34 and of the basement,

ground and second floor of property No.JE-34A and has let

out the same;

(xiii) that the defendant no.1 sold the flat no.F-9/51, Rohini in

1998 and the defendants have no concern with flat no.F-

9/52, Rohini.

8. The plaintiffs, in their replication, besides reiterating their case on

the aspect of limitation, have stated that the suit for the relief of

possession has been filed within the time prescribed therefor.

9. The plaintiffs have filed only the following documents before this

Court;

(A) Photocopy of the chargesheet dated 21.02.2003 in FIR case

aforesaid;

(B) Photocopy of the Agreement to Sell dated 21.04.1988

executed by Sh. Ashok Kumar as seller of plot of land ad-

measuring 200 sq. yds. bearing No.A-126, Khirki Extn.,

Malviya Nagar, New Delhi in favour of the plaintiff no.1 and

the defendant no.1 as purchasers for consideration of

Rs.30,000;

(C) Photocopy of affidavit dated 21.04.1998 of Sh. Ashok

Kumar in confirmation of execution of GPA in favour of

defendant no.2 with respect to the plot of land aforesaid;

(D) Photocopy of receipt of Rs.30,000/- executed by Sh. Ashok

Kumar in favour of the plaintiff no.1 and defendant no.1;

(E) Photocopy of registered GPA dated 08.11.1996 executed by

plaintiff no.1 and defendant no.1 in favour of the defendant

no.2 with respect to plot of land aforesaid;

(F) Photocopy of registered Will dated 08.11.1996 executed by

the plaintiff no.1 in favour of the defendant no.2 with respect

to her share of plot of land aforesaid;

(G) Photocopy of Agreement to Sell dated 08.05.1996 executed

by the plaintiff no.1 and defendant no.1 in favour of

defendant no.2 with respect to plot of land aforesaid for a

sale consideration of Rs.4,60,000/-;

(H) Photocopy of receipt dated 08.11.1996 executed by plaintiff

no.1 and defendant no.1 of Rs.4,60,000/- in favour of

defendant no.2;

(I) Photocopy of Special Power of Attorney executed by one

Sh. Mahinder Singh in favour of plaintiff no.1 with respect

to DDA built Janta category flat no.52, Pocket F-9, Sector

15, Rohini, Delhi;

(J) Photocopy of certain other documents not relating to the

properties aforesaid.

10. The first question which comes to mind is, as to from whom the

plaintiffs in the suit seek to recover possession of the two flats at Rohini.

It is not the case of the plaintiffs that the defendants or any of them are in

possession of the said flats. Rather what the plaintiffs have pleaded in the

plaint is that the defendant no.1 has already sold of the said flats. The

plaintiffs have not disclosed to whom the said flats have been disposed of

and who is in possession thereof. The plaintiffs have been proceeding

with this suit for recovery of the possession of the Rohini flats for the last

more than six years without impleading the person/s in possession thereof

as party to the suit. The counsel for the plaintiffs during the hearing also

was not able to shed any light on the said aspect. The suit, insofar as for

recovery of the possession of the Rohini flats, even if it were to be

believed that the same have been illegally sold by the defendant no.1, is

clearly misconceived and no purpose will be served in allowing it to

burden this Court and which always is at the cost of other deserving

cases.

11. That brings me to the ground urged by the defendants no.1&2 in

their application under Order VII Rule 11 of the CPC with respect to the

Khirki Extn. property. The question for adjudication is, whether in the

facts and circumstances aforesaid, the plaintiffs are entitled to sue for the

relief of possession alone and if so whether the suit for the relief of

possession is within time or whether it was incumbent upon the plaintiffs

to seek the relief of declaration qua the documents on the basis of which

the defendant no.2 claims to be the owner of the said property and

whether the said relief of declaration on the date of institution of the suit

was barred by time and whether without being entitled to such

declaration, the plaintiffs are not entitled to the relief of possession.

12. The plaintiffs, nowhere in the plaint have denied the execution and

registration of the General Power of Attorney dated 08.11.1996 in favour

of the defendant no.2 authorizing the defendant no.2 to manage and

control the plot of land ad-measuring 200 sq. yds. at Khirki Extn. and to

negotiate the sale / transfer thereof and to agree to sell / dispose of the

same and execute all documents in this regard. Similarly, the plaintiffs

have nowhere in the plaint denied the execution and registration of the

Will dated 08.11.1996 with respect to the plaintiff's no.1 share of the said

plot of land. The plaintiffs have only sought to poke holes in the

Agreement to Sell also purportedly executed by the plaintiff no.1 and the

defendant no.1 with respect to the said property in favour of the

defendant no.2 and the receipt of money also purportedly executed by the

plaintiff no.1 and the defendant no.1 in favour of the defendant no.2.

13. In spite of the defendants 1&2 in their written statement expressly

stating that the plaintiffs had not denied their signatures other than on the

revenue stamp on the receipt on the said documents, the plaintiffs in their

replication still did not deny the said signatures.

14. Upon the same being put to the counsel for the plaintiffs yesterday,

he contended that the case of the plaintiffs is of the plaintiffs having

signed all the documents under inducement and owing to the

misrepresentation and fraud practiced by the defendants no. 1&2 and thus

the plaintiffs would be entitled to sue for possession of the property

without being required to seek a relief of declaration with respect to the

property.

15. I have enquired from the counsel for the plaintiffs, whether a

document admittedly signed by the plaintiff no.1 can be unilaterally

treated by the plaintiff no.1 as void on the ground of fraud and

misrepresentation, without seeking a declaration of the same being void.

Attention of the counsel for the plaintiffs in this regard was invited to

Sections 19 and 19A of the Contract Act, 1872 which provide that when

consent to an agreement is caused by coercion, fraud, misrepresentation

or by undue influence, the agreement is a contract voidable at the option

of the party whose consent was so caused. It was further enquired from

the counsel for the plaintiffs whether not the same implied that such

contracts were not void per se but were voidable and for which an option

will have to be exercised by the plaintiffs. It was yet yet further enquired

from the counsel for the plaintiffs whether not the limitation provided in

the Limitation Act, 1963 for such option to be exercised is governed by

Article 56 of the Limitation Act, 1963 providing limitation of three years

commencing from the date when the issue of registration becomes known

to the plaintiff or by Article 58 which provides limitation of three years

commencing from the date when the right to sue first accrues, to obtain

any other declaration or under Article 59 which provides limitation of

three years commencing from the date when the facts entitling the

plaintiffs to have the instrument cancelled or set aside or the contract

rescinded first become known to the plaintiffs. It was yet yet further

enquired from the counsel for the plaintiffs whether not the said

limitation in the present case commenced on 20.09.2001 and 21.02.2002

when the plaintiffs claim to have first lodged complaints or at least in

2003 when the FIR was registered or on 22.04.2004 when the documents

were seized and whether not the suit filed more than three years thereafter

is barred by time.

16. No answer was forthcoming from the counsel for the plaintiffs

yesterday or today.

17. In Raj Kumari Garg (supra) cited by the counsel for the defendant,

this Court held a suit for possession of immovable property to be not

maintainable in similar facts. The Division Bench has vide judgment also

titled Raj Kumari Garg Vs. S.M. Ezaz MANU/DE/3860/2012 has

affirmed the said view.

18. The counsel for the plaintiffs in yesterday's hearing relied on

judgment dated 07.03.2000 of the Supreme Court in State of

Maharashtra Vs. Pravin Jethalal Kamdar. However in that case, the

documents under which the defendant was holding possession were found

to be void ab initio for the reason of being in violation of the prohibition

contained in the Urban Land (Ceiling & Regulation) Act, 1976. It is not the case of the

plaintiffs herein that the documents of transfer of Khirki Extn., property in favour of

defendant no.2 are in violation of any statutory prohibition. The plea of the plaintiffs here

is of having executed the same under misrepresentation and / or being not bound by the

transaction for the reason of having not received the consideration thereunder. Though

the counsel for the plaintiffs could not answer but in my view the language of Sections

19 and 19A (supra) of the Contract Act making documents, consent whereto is caused

by coercion, fraud or misrepresentation or by undue influence voidable at the

option of the party whose consent was so caused, itself negates the said documents

being void ab initio. The same requires the party, whose consent was so

caused, to exercise the option of having the documents so declared void

and for which the period of limitation is prescribed. Once a plaintiff

allows such period of limitation to lapse, the only inference is that the

plaintiff is thereafter debarred from contending the said documents to be

void and without the said documents being treated or declared void, the

plaintiffs cannot be entitled to possession. There is another aspect of the

matter. The Agreement to Sell, Power of Attorney, Will under all of

which, the defendant no.1 claims title to the property and all are dated

08.11.1996. The suit as aforesaid has been instituted on 07.11.2008 i.e.

on the last date of expiry of 12 years therefrom, though probably under

objection as the same was re-filed on 18.11.2008, 03.12.2008 and finally

on 11.12.2008.

19. I am therefore of the view that where the plaintiff claims recovery

of possession of the property in the possession of defendant under

documents of transfer / title admittedly executed by the plaintiffs and to

have which documents declared as void, the plaintiff is required to seek

the relief of declaration of their voidability, the plaintiff if does not sue

for declaration within the prescribed time, cannot thereafter sue for

possession by contending the relief of possession to be within time.

20. Resultantly, the application succeeds and the suit for the reliefs

claimed, on the averments therein, is found to be barred by time and is

dismissed.

21. I refrain from imposing any costs on the plaintiffs since the counsel

for the plaintiffs stated that this is a legal aid matter, though there does

not appear to be anything on record to suggest so.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J APRIL 04, 2014 'gsr'