Pushpa Devi & Ors. vs Ramesh Chander
2017 Latest Caselaw 3954 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 204/2017

%                                                         8th August, 2017

PUSHPA DEVI & ORS.                                       ..... Appellants
                          Through:       Ms. Divya Gupta, Advocate.
                          Versus

RAMESH CHANDER                                             ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No. 28126/2017 (for exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RSA No. 204/2017

2. This Regular Second Appeal under Section 100 of the

Code of Civil Procedure, 1908 (CPC) is filed by the

appellants/plaintiffs impugning the concurrent judgments of the courts

below; of the trial court dated 22.8.2015 and the first appellate court

dated 27.1.2017; by which the courts below have dismissed the suit

filed by the appellants/plaintiffs for declaration and permanent

injunction being not maintainable as regards the relief of injunction on

account of appellants/plaintiffs being not in possession of the suit

property and that no relief having been sought by the

appellants/plaintiffs for possession of the suit property. The suit

seeking the relief of declaration has been dismissed as time-barred.

The suit has been disposed of at the stage of pleadings.

3. The facts of the case are that the appellants/plaintiffs filed

the subject suit claiming rights in the property admeasuring 84.5 sq.

yds. forming part of Khasra no. 396 of property no. 11, Jangpura

Road, Bhogal, New Delhi. It was pleaded that the suit property

belonged to the forefathers of the appellants/plaintiffs. It is further

pleaded in the plaint that the suit property was partitioned between the

legal heirs of Sh. Khiman Lal and appellants/plaintiffs became owners

of the suit land admeasuring 84.5 sq. yards. It was pleaded by the

appellants/plaintiffs that they had entered into an agreement to sell of

the suit property with one Sh. Pawan Saraswat on 19.3.2007 for a sum

of Rs.15,00,000/- and the appellants/plaintiffs had executed an

agreement to sell and receipt of earnest money of Rs.10,00,000/- and

handed over possession to the purchaser Sh. Pawan Saraswat. It was

further pleaded in the plaint that as per the agreement to sell

appellants/plaintiffs had to get the suit property mutated in their names

and get permissions from the concerned department, but departments

failed to mutate the suit property in the names of the

appellants/plaintiffs and also did not grant permission to sell the

property. It is further pleaded in the plaint that during the pendency of

an earlier suit filed by Sh. Pawan Saraswat against the present

appellants/plaintiffs, the present respondent/defendant filed an

application under Order I Rule 10 CPC and got himself impleaded in

the said suit. The present respondent/defendant in the earlier suit

claimed ownership of the suit property in terms of the documents

being the agreement to sell, Will, etc. in his favour dated 8.4.1987 and

also a sale deed dated 3.8.1993 and surrender deed dated 18.11.1994.

It was further pleaded in the plaint that during the pendency of the said

earlier suit it was found by the appellants/plaintiffs that the

respondent/defendant claimed that he had purchased the suit property

by virtue of documents dated 8.4.1987 after paying Rs.45,000/- and

the respondent/defendant relied upon sale deed dated 3.8.1993 and

alleged surrender deed dated 18.11.1994. Appellants/plaintiffs pleaded

that these documents are forged and fabricated as husband/father of

the appellants/plaintiffs had no intention to sell the suit property and

had never executed the documents being relied upon by the

respondent/defendant. It was pleaded in the plaint that the

respondent/defendant has no right, title and interest in the suit property

and is not in possession of the suit property and that the

respondent/defendant on the basis of forged and fabricated documents

intends to grab the suit property. It was then finally pleaded in the

plaint that there was endeavor to take forcible possession of the suit

property from the appellants/plaintiffs and therefore the subject suit

came to be filed seeking the following reliefs:-

"It is therefore most respectfully prayed that this hon.ble court be pleased to:-

a) pass a decree for declaration in favour of the plaintiffs and against the defendant thereby declaring that so called alleged agreement to sell, alleged Will and alleged money receipt dated 8.4.1987 allegedly executed in favour of defendant as well as alleged sale deed dated 3.8.1993 allegedly executed by power of attorney of Shri Om Prakash in favour of defendant registered as document no. 5703, Block No. I, Vol. no. 7988 on pages 109-113 dated 3.8.1993 in respect of suit property as duly shown in the red colour measuring 84.5 sq. yards in khasra no. 396 forming part of property no. 11, Jungpura Road, Bhogal, New Delhi, is illegal, against the law, null and void and defendant has no right to act upon the same and are not binding upon the plaintiffs and send a decree to the office of Sub Registrar, New Delhi to note on the copy of so called alleged sale deed dated 3.8.1993 contained in his books the fact of abovesaid declaration.

b) Pass a decree for permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, his family

members, associates, agents, and persons working on his behalf etc. etc. not to take the forcible possessing in respect of the suit property as duly shown in the red colour measuring 84.5 sq. yards forming part of property no.11, Jungpura Road, Bhogal, New Delhi, and also not to act upon the so called alleged agreement to sell, alleged Will and alleged money receipt dated 8.4.1987 allegedly executed in favour of defendant as well as alleged sale deed dated 3.8.1993 and not to enter any agreement in respect of suit property on the basis of abovesaid alleged documents.

c) The cost of the suit may also be awarded to the plaintiffs against the defendant.

d) Such other or further orders which this hon.ble court deem fit and proper may also be passed in favour of plaintiffs and against the defendant."

4. Trial court framed an issue as regards maintainability of

the suit in the present form vide its order dated 4.6.2015. By the

impugned judgment the trial court held that since the

appellants/plaintiffs are not in possession of the suit property hence

the subject suit was not maintainable because the appellants/plaintiffs

in para 6 of the plaint have categorically admitted that the possession

of the suit property was handed over to Sh. Pawan Saraswat and there

is no other averment in the plaint as to how the appellants/plaintiffs

got back possession of the suit property. Trial court also held that the

suit property was mutated in the name of the respondent/defendant,

namely, Sh. Ramesh Chander and Smt. Amar Kaur on 20.10.2009 and

since the appellants/plaintiffs were parties to the earlier suit filed by

Sh. Pawan Saraswat on 20.10.2009 and hence the appellants/plaintiffs

in October, 2009 itself were aware of the documents relied upon by

the respondent/defendant and therefore the subject suit filed seeking

declaration of invalidity of documents in favor of the

respondent/defendant in the year 2014 was barred by limitation. The

relevant paras of the judgment of the trial court are pars 3 and 4 and

these paras read as under:-

"3. I have perused the record and heard the submissions made by both the Ld. Counsel at length. Plaintiffs in para no. 6 of the plaint have categorically stated that they have handed over the possession of the suit property to Mr. Pawan Saraswat. Nowhere in the subsequent paragraphs have claimed to have regain the possession of the suit property. Not even a single documents have been filed on record by the plaintiff that they are in the possession of the suit property, therefore, the question of seeking relief of injunction against the defendant from taking forcible possession from the plaintiffs does not arise. The plaintiffs have not sought the relief of possession in the present suit, hence, the present suit is not maintainable in its present form.

4. It is not disputed by the plaintiffs that the DDA in the WS filed in the another suit filed by Sh. Pawan Saraswat on 20.10.2009 stated that the suit property has been mutated in the name defendant Sh.Ramesh Chander and one Smt.Amar Kaur. It means that plaintiffs who were party to that suit were aware about the mutation of the suit property in the name of the defendant on 20.10.2009. The period of limitation for seeking the relief of declaration is three years as per article 56 of Limitation Act. As such plaintiffs were supposed to file the suit prior to November 2012. The plaintiffs have taken the plea that they came to know about the alleged disputed documents only when the defendant filed the application u/o I Rule 10 CPC on 15.01.2010 in the said separate suit does not have any merits and the plaintiffs are merely trying to mis-represent the Court for bringing the present suit within the period of Limitation. This Court is of the view that the suit is also hopelessly barred by law of limitation. In view of the observations given above, the present suit is not maintainable, hence, same stands dismissed.

File be consigned to Record Room after due compliance."

(underlining added)

5. The first appellate court by the impugned judgment has

upheld the judgment of the trial court.

6. Learned counsel for the appellants/plaintiffs has argued

that this second appeal has to be entertained in view of substantial

questions of law as referred to in para 2 of the appeal and which

substantial questions of law pertain to wrongly dismissing of a suit

without framing of a preliminary issue and that the issue of limitation

if is a mixed question of law and fact the same cannot be decided

without leading evidence.

7.(i) In my opinion, the arguments of preliminary issue not

having been framed and the issue of limitation which has been decided

against the appellants/plaintiffs was a mixed question of law and fact

and therefore the same could not be decided without parties being

allowed to lead evidence, are misconceived arguments as it is seen that

the trial court did frame a preliminary issue as to the maintainability of

the suit vide its order dated 4.6.2015. It is this preliminary issue which

was decided against the appellants/plaintiffs in terms of the impugned

judgment of the trial court dated 22.8.2015 rightly holding that the suit

for injunction could not lie as in para 6 of the plaint the

appellants/plaintiffs admitted to handing over possession to Sh. Pawan

Saraswat and that the appellants/plaintiffs were hence not in

possession for seeking the relief of injunction against dispossession.

Appellants/plaintiffs therefore cannot argue that no preliminary issue

was framed.

(ii) On the issue of limitation it is seen that the as per Section 3 of the

Limitation Act, 1963 courts can suo moto take notice of issue of

limitation once there are admitted facts, and para 4 of the judgment of the

trial court shows that on the admitted facts with respect to knowledge of

the impugned documents relied upon by the respondent/defendant of the

years 1987/1993 being to the knowledge of the appellants/plaintiffs in

the year 2009 in the earlier suit, and that consequently Article 56 of the

Limitation Act applied for three years of limitation for claiming the relief

of declaration, but the suit instead of being filed before November, 2012

was filed in the year 2014 and therefore was clearly barred by limitation

as rightly held by the courts below.

8. No substantial question of law arises. Dismissed.

AUGUST 08, 2017 / AK                          VALMIKI J. MEHTA, J