Vijay Prakash Verma vs Surinder Singh & Ors
2015 Latest Caselaw 3082 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No.140/2015

VIJAY PRAKASH VERMA                                    ..... Appellant

                            Through: Mr. Manu Nayar, Adv.

                          Versus

SURINDER SINGH & ORS                                  ..... Respondent

                            Through:

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant against the

Judgment dated 24.12.2014 passed in RCA No.63/2014 titled Sh.Vijay

Prakash Verma v. Sh.Surinder Singh by virtue of which the order dated

25.11.2014 rejecting the plaint of the appellant under Order 7 Rule 11(d)

of the CPC has been upheld.

2. Before dealing with the contention of the learned counsel for the

appellant, it would be pertinent to give the brief background of the case.

3. The appellant filed a suit for specific performance, declaration,

cancellation and permanent injunction.

4. The case which was set up by the appellant in the plaint was that he

had purchased a two room set on the first floor of the property No.2089,

Katra Gokul Shah, Kucha Aqil Khan, Bazaar Sita Ram, Delhi - 110006

vide agreement dated 27.07.1984 and 07.05.1990 from one Smt.Prakash

Kaur (since deceased) whose legal heirs have been impleaded as

respondent Nos.2 to 6. It was alleged that the property was purchased for

a total consideration of Rs.1,25,000/- which was paid on 22.10.1984,

27.07.1984, 08.05.1985 and 07.05.1990 for a sum of Rs.75,000/-,

Rs.10,000/-, RS.15,000/- and Rs.25,000/- respectively.

5. It has been stated that the appellants were put in possession of the

property on the basis of the said agreement. It is also the case of

appellant that he gave a notice to the legal heirs requiring them to get the

sale deed registered but the legal heirs did not come forward to perfect

the title. It has been further stated that respondent No.13 filed a suit for

eviction under Section 14(1) (e) of the Delhi Rent Control Act claiming

himself to be the purchaser of the suit property.

6. The following reliefs were sought by the appellant in the prayer

clause:

"i) A decree of declaration to declare the plaintiff as owner of the suit property and that the sale dated 28.02.2000 executed in favour of defendant no.13 is illegal.

ii) A decree of specific performance in favour of plaintiff and against the defendant in respect of agreement to sell dated 27.07.1984 and 07.05.1990 entered into in respect of suit property.

iii) A decree of permanent injunction to restrain the defendant no.13 from dispossessing the plaintiff from suit property and from selling, alienating or creating any third party interest therein."

7. The learned trial court in the order dated 25.11.2014 has recorded

that so far as the first relief of declaration is concerned, that was

withdrawn by the appellant on 30.09.2014. So far as the second relief of

specific performance of the agreement to sell dated 27.07.1984 and

07.05.1990 is concerned, the same has to be read in continuation and as

an extension of the agreement dated 27.07.1984 when the suit property is

purported to have been sold by Smt.Prakash Kaur since deceased to the

appellant for a sum of Rs.1,25,000/-. It was noticed by the learned trial

court since the property was sold by the aforesaid two agreements by

Smt.Prakash Kaur to the appellant and the entire sale consideration was

purportedly paid by the appellant to the vendor as well as the vendee was

put into possession, therefore, nothing further remained to be done except

that the document of sale deed was required to be got registered. It has

been further observed in the impugned order that as the document in

question which the appellant is calling to be an agreement to sell was in

fact a sale deed, therefore, the said document ought to have been

registered within the permissible time of four months from the date of

signing of the agreements and since this was not done, therefore, the

document could not have been read in evidence by virtue of Section 17

read with Section 49 of the Indian Registration Act. The learned trial

court also observed that the suit for specific performance was required to

be filed within a period of three years from a specific date which was set

out in the agreement or from the date of its performance and since it was

not specifically stated in the agreements in question what was the date of

performance, therefore, the agreement had to be enforced by filing a suit

for specific performance within a reasonable period of time. The trial

court further observed that even after it is assumed that the period of

limitation had commenced on 07.05.1992 i.e. two years from the last

agreement dated 07.05.1990, even then the period of three years would

expire on 07.05.1995 while as the suit has been filed on 05.07.2007 and

the period of limitation having expired on 07.05.1995 on the face of it

makes the suit as barred by time under Order 7 Rule 11(d) CPC.

8. It was also observed that so far as the relief of permanent

injunction is concerned, the appellant himself is admittedly in possession

of the suit property and he has not been threatened of any dispossession

and if done so, the appellant could use Section 53A of the Transfer of

Property Act to protect his possession by using the document in question

as a sword on the basis of this reasoning. The learned trial court on the

basis of the plaint itself has observed that the suit was barred by law and

accordingly rejected the plaint.

9. The appellant feeling aggrieved, preferred an appeal against the

said order dated 25.11.2014 vide RCA No.63/2014 in which also he was

unsuccessful. The learned ADJ dismissed the appeal as being devoid of

any merit and upheld the order passed by the learned Trial Judge rejecting

the plaint. The learned counsel for the appellant has contended that the

rejection of the plaint by the learned Trial Judge and upholding of the

same by the first appellate court has not taken cognizance of all the points

raised by the appellant and decided the case on all the issues which were

involved in the matter.

10. It has been stated by him that in the first instance, the appellant

never withdrew his relief of declaration with respect to cancellation of

sale deed as is recorded in the order of the trial court was withdrawn by

the appellant before the trial court and, therefore, the court ought to have

decided as to whether the sale deed purported to have been executed by

respondent Nos.2 to 6 in favour of respondent No.13 was a legal

document. He has further contended that the suit has been erroneously

rejected by the trial court which order has been upheld by the first

appellate court holding that the suit ought to have been filed within a

period of three years starting from 07.05.1992 while as no specific date

was fixed by the agreement within which title of the appellant was to be

perfected. It has been contended by him that Schedule I to the Limitation

Act, 1963 specifically lays down a period of three years from the date

specified in the agreement or alternatively a period of three years from

the date when a party has a knowledge about the refusal on the part of the

vendor to perfect the title of the appellant/plaintiff. It has been contended

by him that the appellant gave a notice to the legal heirs on 23.07.2007

and immediately thereafter filed a suit as the legal heirs did not come

forward to perfect the title of the appellant. It has also been contended

that the learned trial court has fallen into a serious error by not dealing

with the issues raised in the suit.

11. In support of his submissions, the learned counsel for the appellant

has relied upon the following judgments: i) Shrimant Shamrao

Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi (Dead.) by LRs

and Ors; (2002) 3 SCC 676; ii) Mahadeva and Ors.v. Tanabai; (2004) 5

SCC 88. These judgments have been relied upon for the reason that

Section 53A of the Transfer of Property Act permits a vendee to defend

his position against the vendor who is purported to have sold the property

to the vendee.

12. I have gone through these authorities and there is absolutely no

dispute about the proposition of law laid down in these three cases.

13. It is well settled by now that Section 53A clearly lays down that in

case in pursuance to part performance of an agreement to sell, possession

has been delivered to the vendee, he is entitled to defend his possession

qua that vendor only and not against the world at large. As a

consequence of this, the courts have observed that Section 53A can be

used as a shield but not as a sword.

14. In the instant case, the question of applicability of Section 53A

does not arise at all. This is on account of the fact that the appellant was

not the defendant in the trial court. On the contrary, it was the appellant

who had filed a suit for declaration, specific performance and permanent

injunction. The declaration which was sought was that the legal heirs of

his father had purportedly sold the property to respondent No.13

(defendant No.13) which was sought to be got cancelled. This relief of

declaration was given up and the specific performance was pressed which

relief was denied to him on account of being barred by limitation.

Therefore, I fail to understand as to how the learned counsel for the

appellant is helped by Section 53A of the Transfer of Property Act when

he himself has gone to the court. Accordingly, these judgments are not

applicable to the facts of the present case.

15. The second line of judgments which have been relied upon by the

learned counsel for the appellant are as follows: Ahmadasahab Abdul

Mulla (dead) by Proposed LRs v. Bibijan and Ors: (2008) 5 SCC 361,

Ranganayakamma and Anr. v. K.S.Prakash (dead) by LRs and Ors;

(2008) 15 SCC 673 and Ahmadasahab Abdul Milla (dead) by proposed

LRs v. Bibijan and Ors.; 2009 (3) Supreme 116 where the apex court has

observed what is the meaning of the word date which is mentioned in

Article 54 of the Limitation Act. Article 54 of the Limitation Act lays

down that a suit for specific performance is to be filed within a period of

three years from the date which is fixed for completion of transaction and

in case no date is fixed, then from the date when the petitioner had

knowledge about the refusal to perform his part of the contract by the

respondent. In the present case, admittedly no time was specified in the

agreement dated 27.07.1984 and 07.05.1990 within which the transaction

was to be completed, therefore, the judgments which have been relied by

the learned counsel for the appellant are not applicable because no date

was specified in the contract for completion of transactions. As a matter

of fact, the trial court has given a finding that it was not an agreement to

sell but it was a sale deed because nothing further remained to be done as

possession had been taken by the appellant and the entire sale

consideration had been given to the predecessor in interest of the

respondent Nos.2 to 6 namely Smt.Prakash Kaur (since deceased) and

only thing required to be done was to get the document registered with

the Sub Registrar of the area within a period of four months as stipulated

under the Indian Registration Act. Therefore, these judgments are not

applicable. The learned trial court has rightly observed that since time for

performance of the agreement was fixed, the appellant was required to

approach the court within a reasonable period of time after asking

deceased respondent Smt.Prakash Kaur to perfect her title although

according to the Court, there was no act required to be done by her except

registration. The court has reckoned the period of limitation of two years

after the last agreement i.e. 07.05.1990 and has observed that the suit

ought to have been filed within a period of three years which would have

expired in 1995 while as the said suit was filed in the year 2007 and,

therefore, the court rightly observed that the suit was hopelessly bared by

time and accordingly rejected the plaint. This rejection has been upheld

by the first appellate court also and thus there is a concurrent finding of

the two courts below. The learned counsel for the appellant has not been

able to show the applicability of judgments on the question of limitation

or what all questions of law are involved in the matter. Therefore, this

argument of the learned counsel for the appellant also does not have any

merit.

16. The last judgment which has been relied upon by the appellant is

Shrimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba

Suryavanshi (Dead) by Lrs and Ors; (2002) 3 SCC 676.

17. I fail to understand as to how and in what context, the judgment

has been relied upon. The judgment deals with the question of limitation

in the context of family settlement and it only lays down that fraud or

misrepresentation would render a deed voidable and, therefore, the deed

is required to be set aside. In the instant case, it seems perhaps the

contention of the learned counsel for the appellant was that the sale deed

which was entered into by the successor of Smt.Prakash Kaur who are

respondent Nos.2 to 6 was actuated by fraud and, therefore, the

cancellation of the same was sought. However, the learned trial court has

recorded in the order that the relief of declaration was given up by the

appellant. Therefore, there is no question of going into the validity of the

transaction purported to have been executed between the successors of

Smt.Prakash Kaur and respondent No.13. No other point has been urged

by the learned counsel for the appellant.

18. In view of the aforesaid facts and circumstances, I am of the

considered opinion that the appellant has not been able to show that any

question of law much less a substantial question of law is involved in the

matter which may warrant issuance of a notice.

19. Accordingly, the appeal is dismissed.

V.K. SHALI, J APRIL 17, 2015/dm