Sh. Sushil Yadav And Anr. vs M/S Valley View Developers Pvt Ltd ...
2015 Latest Caselaw 8024 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) No.2798/2011

%                                                    19th October, 2015

SH. SUSHIL YADAV AND ANR.                                  .... Plaintiffs
                  Through:               None.


                          Versus


M/S VALLEY VIEW DEVELOPERS PVT LTD AND ORS.
                                             ..... Defendants
                  Through: Mr. Sanjay Manchanda, Advocate
                           with Mr. Anand Chaudhuri, Advocate
                           for defendant Nos.1 and 5.
                           Mr. Rajesh Yadav, Advocate for
                           defendant No.2.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

On the first call, no one appeared for the plaintiffs and therefore

the matter was passed over. On the second call, no one appears for the

plaintiffs and counsels appearing for the defendant nos.1, 2 and 5 very

vehemently oppose the adjournment as it is stated that plaintiffs are

deliberately not appearing so as to avoid a decision in the suit which is

barred by limitation and therefore issues do not have to be framed, and for

which purpose the suit is listed today.

2. The subject suit is a suit for declaration, cancellation and

permanent injunction by which the plaintiffs seek declaration and

cancellation of sale deeds of different dates as also cancellation of a general

power of attorney and a Will. The reliefs sought with respect to the

documents can be understood from the prayer clause of the plaint and which

prayer clause reads as under:-

"a. Pass the decree of declaration thereby declaring the following sale deed as null and void qua the share of Late Sh. Dharam Singh, plaintiff's father:

i. Sale deed bearing Registration no.6188 Addl. Book No.I, Vol. No.1160 pages 33-40 dated 2.5.1995.

ii. ii. Sale deed bearing Registration no.7360 Addl.

Book No.I, Vol. No.841 pages 1-8 dated 26.8.1996. iii. iii. Sale deed bearing Registration no.7362 Addl.

Book No.I, Vol. No.841 pages 18-23 dated 26.5.1996. iv. iv. Sale deed bearing Registration no.7358 Addl.

Book No.I, Vol. No.840 pages 184-191 dated 26.8.1996. v. v. Sale deed bearing Registration no.6186 Addl.

Book No.I, Vol. No.1160 pages 18-25 dated 5.6.1997. vi. vi. Sale deed bearing Registration no.4128 Addl.

Book No.I, Vol. No.397 pages 42-48 dated 13.12.2000. b. Pass the decree of declaration thereby declaring General Power of Attorney, registered vide registration no.1089, Book no.IV, volume no.2090 on pages no.158-162 dated 24.2.94, as null and void. It is further prayed that the decree of cancellation in respect of the above said GPA may kindly be passed.

c. Pass a decree of declaration thereby declaring the will in favour of the defendant number 1, which was registered as registration no.951 Addl. Book no.III, volume no.766 on pages 100 and 101 dated 24.2.1994, as null and void. It is further prayed that the decree of cancellation in respect of the above said will may kindly be passed.

d. Issue direction to the concern Sub-Registrar directing him to cancel the registration of the above said documents/instruments registered with its office.

e. Pass a decree of the permanent injunction in favour of the plaintiff and against the defendants, restraining thereby the defendants, their associates, employees agents and nominees etc from dispossess in the plaintiff from the land admeasuring about 3 bighas, falling in khasra no.861(1-10), 901(0-10) and 807(1-0), situated within the revenue estate of village Rajokari, New Delhi."

3. The suit land is described in para 1 of the plaint which reads as

under:-

"1. That the father of the plaintiffs namely Sh. Dharam Singh was bhumidhar of 1/36th share of the land bearing khasra no.806 (4-16), 807 (4-16), 808 (3-6), 809 (6-16), 854 (4-16), 857/2 (1-3), 858 (4-16), 859 (4-16), 860 (4-16), 861 (4-16), 864/2 (2-12), 865 (4-16), 866/1 (0-16), 871/2 (3-16), 872/1 (2-4), 897/1 (2-8), 898 (4-16), 900 (4-16), 901 (7-

4), 902(2-18), 903 (4-16), 904-907 (4-16), 908 (6-10), 909-910 (4-16), 978 (4-9), 993 (4-9), 1047 (1-0), 1053/1(0-9) and 1053/2(0-13) situated within the revenue estate of village Rajokari. He was in actual cultivatory possession of his total area of about 3 bighas and 13 biswas, out of the above said land, which was well demarcated, pursuant to family settlement amongst his father and forefather."

4. The cause of action as stated in the plaint is that the defendant

no.5 Sh. Ramesh Chander Aggarwal approached the father of the plaintiffs

in the year 1994 and offered to purchase his 1/36 th share in the land bearing

khasra numbers 806 (4-16), 808(3-6), 809(6-16), 897/1(2-8), 898(4-16), total

admeasuring about 13 biswas, out of the suit land. It is further pleaded that

the father of the plaintiffs was in need of money and therefore out of about 3

bighas and 13 biswas of land belonging to the father of the plaintiffs, the

father of the plaintiffs decided to sell only 13 biswas and kept 3 bighas of

land for himself. For this transaction, the father of the plaintiffs entered into

documentation by signing on 24.2.1994 agreement to sell, GPA etc. The

documents being GPA and Will are registered before sub-Registrar as stated

in para 6 of the plaint. Plaintiffs have further pleaded that the father of the

plaintiffs expired on 4.11.1999 leaving behind the plaintiffs as the only male

successors besides their mother. The mother of the plaintiffs has also

expired on 12.3.2006. It is argued that there was a fraud played upon the

father of the plaintiffs inasmuch as it transpired when the plaintiffs obtained

a khatoni of the land that 1/36th share of only 5 bighas and 12 biswas was

mutated in their names while the other entire holding of their father had

already been mutated by seven different mutation orders in favour of

different persons. Fraud is pleaded by the plaintiffs to have been played

upon the father of the plaintiffs by the defendant no.5 who is said to have

obtained signatures of the father of the plaintiffs on GPA in favour of one

Sh. Prakash Sharma and a Will in his favour, of the entire holding of the

father of the plaintiffs instead of the land falling in khasra no.806(4-16),

808(3-6), 809(6-16), 897/1(2-8), 898(4-16) and which was actually intended

to be sold by the father of the plaintiffs. Para 13 of the plaint states that

signatures of the father of the plaintiffs were obtained fraudulently and by

misrepresentation and that the documents are sham and void having no force

in the eyes of law. This misrepresentation and fraud against the father of

the plaintiffs by defendant no.5 is again pleaded in para 15 of the plaint. On

these averments, plaintiffs have claimed the reliefs of declaration etc in the

suit.

5. Learned counsels for the defendants argue that plaintiffs are

admittedly claiming through their father and rights of the plaintiffs therefore

cannot be better than their father. Putting it in other words, it is argued that

if the father of the plaintiffs could not have filed the present suit in the year

2011 as the suit will be barred under Article 59 of the Limitation Act, 1963,

plaintiffs also cannot file the suit which is barred by Article 59 of the

Limitation Act as per which a suit to challenge voidable documents has to be

filed within three years of execution of documents i.e the present suit had to

be filed for challenging the documents of the year 1994 by 1997, but the suit

has been filed 17 years later in 2011. Reliance is placed upon the judgment

of the Supreme Court in the case of Prem Singh and Others Vs. Birbal and

Others (2006) 5 SCC 353 which pronounces upon the applicability of

Article 59 of the Limitation Act, 1963 by differentiating between void

documents and voidable documents i.e voidable documents under Article 59

of the Limitation Act would be those documents when averments as to

coercion, undue influence, fraud etc are required to be proved by a person

who is a party to the documents sought to be declared void. The relevant

paras in the case of Prem Singh and Others (supra) are paras 17 and 18 and

which paras read as under:-

"17. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59. Even if Article 59 is not attracted, the residuary article would be.

18. Article 59 would be attracted when coercion, undue influence, misappropriation or fraud which the plaintiff asserts is required to be proved. Article 59 would apply to the case of such instruments. It would, therefore, apply where a document is prima facie valid. It would not apply only to instruments which are presumptively invalid. (See Unni v. Kunchi Amma: ILR (1891) 14 Mad 26 and Sheo Shankar Gir v. Ram Shewak Chowdhri: ILR (1897) 24 Cal 77.)"

6. I have already stated above the gist of the plaint and at this

stage in order to understand that the suit will fall under Article 59 of the

Limitation Act, 1963, it is required to reproduce paras 13 and 15 of the

plaint and these paras read as under:-

"13. That the plaintiffs immediately applied for the copies of the mutation proceedings and orders, which were issued on 5.5.2011. It was revealed to the plaintiffs that the defendant number 5 had obtained the signatures of father of the plaintiffs on GPA in favour of one Sh. Prakash Sharma and a will in his favour, in respect of his entire holding instead of the land bearing khasra no.806(4-16), 808(3-6), 809(6-16), 897/1(2-

8), 898(4-16), which was actually intended to sell by the father of the plaintiffs. The signatures were obtained by misrepresentation and fraudulently, as such, the GPA and other documents in respect of entire holding are sham, void having no legal force in the eyes of law.

xxxxx

15. That thereafter, the plaintiffs become aware that the above said Gen Power of attorney in favour of one Shri Prakash Sharma is registered as registration no.1089, Book no.IV, volume no.2090 on pages no.158-162 dated 24.2.94. Likewise, the will in favour of the defendant number 5, was registered vide registration no.951 Addl. Book no. III, volume no.766 on pages 100 and 101 dated 24.2.1994. These documents were obtained by the defendant no.5 by misrepresentation and fraudulently just to grab the plaintiffs land. In fact, the father of the plaintiffs intended only to execute General Power of Attorney and the will in favour of the defendant no.5 or his nominee, in respect of his 1/36th share in the land bearing khasra no.806(4-16), 808(3-6), 809(6-

16), 897/1(2-8), 898(4-16) only but the defendant no.5 obtained his signatures on the impugned General Power of Attorney and will in which, his other land was also mention. As such, the impugned General Power of Attorney and will are sham, illegal and non-operating in respect of the other land of the father of the plaintiffs except the land bearing khasra numbers 806(4-16), 808(3-6), 809(6-16), 897/1(2-8), 898(4-16) situated within the revenue estate of village Rajokari."

7. A reading of the aforesaid two paragraphs makes it clear that

the plaintiffs claim that documents of the year 1994 being agreement to sell,

GPA and Will etc were got executed by the defendant no.5 under

misrepresentation and fraud. Clearly therefore the suit is a suit which will be

covered under Article 59 of the Limitation Act and which Article 59 of the

Schedule of the Limitation Act reads as under:-

"

Article Description of suit Period of Time from which period Limitation begins to run 59 To cancel or set Three When the facts entitling the aside an instrument years plaintiff to have the or decree or for the instrument or decree rescission of a cancelled or set aside or the contract contract rescinded first become known to him.

"

8. The plaintiffs are claiming through their father and the father

himself was bound within three years from execution of the documents of

the year 1994 to seek declaration/cancellation of the documents on the

alleged ground of fraud, misrepresentation etc. Since the father did not file

the suit within limitation, the plaintiffs who stepped into the shoes of the

father are also bound by the provision of Article 59 of the Limitation Act,

1963 that they cannot in the year 2011 seek declaration as void i.e

effectively cancellation of the documents which were executed around 17

years prior to the filing of the present suit.

9. In view of the above, the suit is dismissed as barred by

limitation by exercising powers by this Court under Order XII Rule 6 of the

Code of Civil Procedure, 1908 as prayed on behalf of the defendants.

Parties are left to bear their own costs.

OCTOBER 19, 2015                            VALMIKI J. MEHTA, J.
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