Delhi High Court
Veer Bhan & Anr vs Ramphal & Ors. on 8 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 774/2017
% 8th September, 2017
VEER BHAN & ANR. ..... Appellants
Through: Mr. Shanul Kadian, Advocate
versus
RAMPHAL & ORS. ..... Respondents
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. 32798/2017 (Exemption)
1. Exemption allowed, subject to all just exceptions.
Application stands disposed of.
RFA No. 774/2017
2. This first appeal is filed under Section 96 of the Code of
Civil Procedure, 1908 (CPC) by the appellants/plaintiffs in the suit
impugning the judgment of the trial court dated 30.05.2017 whereby
trial court has rejected the plaint under Order VII Rule 11 CPC as
being time barred. Appellants are legal heirs of the original plaintiff,
and referenace in this judgment to the plaintiffs will include reference
to the original plaintiff.
3. The subject suit was filed by the appellants/plaintiffs
seeking declaration of ownership of 1/4th share in the property bearing
Khasra No. 108/91, measuring 300 sq. yards situated in extended Lal
Dora abadi of village Khera Kalan, Delhi, relief of partition thereof
and for cancellation and declaration as void of the registered General
Power of Attorney ('GPA') and Will dated 09.06.2004 executed by
the appellants/plaintiffs with respect to the suit property in favour of
the defendant nos.6 to 9 in the suit.
4. The facts pleaded by the appellants/plaintiffs (legal heris
of original plaintiff) were that the suit property was an ancestral
property and it devolved upon four brothers Sh. Ram Kishan, Sh. Om
Prakash Rana @ Ram Prakash (plaintiff), Sh. Ram Prasad and Sh.
Ramphal. Sh. Ram Prasad expired on 17.03.1974 leaving behind four
sons being defendant nos.2 to 5. Sh. Ram Kishan was unmarried and
before his death he bequeathed his share in the suit property to
defendant nos.2 to 5. Resultantly, defendant nos.2 to 5 became owner
of half share in the suit property and the plaintiff and defendant no.1
became owners to the extent of 1/4th share each in the each undivided
suit property. It was pleaded in the plaint that defendant nos.2 to 5 on
09.06.2004 approached the father of the appellants/plaintiffs and
defendant no.1 saying that the defendant nos.2 to 5 wanted to sell their
share in the three properties bearing nos. 108/187, 108/188 and 108/91
(suit property), and they were required to witness the documents and
hence the father of the appellants/plaintiffs and defendant no.1
accompanied defendant nos.2 to 5 to the Office of the Sub-Registrar
where defendant nos.6 to 9 met them and got thumb impressions of
the plaintiff on the documentation with respect to the suit property in
Khasra No.108/91. It is pleaded that plaintiff was an illiterate person
and did not know that by the documentation dated 09.06.2004 he had
in fact transferred his rights in the suit property to defendant nos.6 to
9. Therefore, the subject suit came to be filed seeking the reliefs of
declaration/partition and for cancellation of the documents being the
GPA and the Will dated 09.06.2004 executed by the plaintiff in favour
of the defendant nos.6 to 9 with respect to the suit property
admeasuring 300 sq. yards situated in Khasra No.108/91.
5. Trial court has for the purpose of rejecting the plaint
placed reliance on Article 58 of the Limitation Act, 1963 and which
provides that the limitation period with respect to a suit to seek
cancellation of the documents executed is a period of three years from
the date of the knowledge of the execution of the documents. Infact
even Article 59 of the Limitation Act applies and these Articles 58 and
59 of the Limitation Act read as under:-
Description of suit Period of Time from which period
limitation begins to run
58. To obtain any other Three years When the right to sue first
declaration. accrues.
59. To cancel or set aside Three years When the facts entitling
an instrument or the plaintiff to have the
decree or for the instrument or decree
rescission of a cancelled or set aside or
contract. the contract rescinded first
become known to him.
6. As per Section 3 of the Limitation Act even if limitation
is not set up as a defence, courts have to ensure that the suit is within
limitation.
7. Trial court has in my opinion rightly held that the
plaintiff is deemed to know the contents of the documents executed by
him on 09.06.2004 itself and it is not open to the plaintiff to argue that
he was not aware of the contents of documents executed by him on
09.06.2004. This is all the more so because documents are registered
documents and hence they were not concealed from the plaintiff. It
does not lie in the mouth of the plaintiff to deny knowledge of the
contents of the documents dated 09.06.2004 especially since the same
were never concealed from him. The limitation period therefore for
challenging the documents dated 09.06.2004 and for filing the suit
began as against the plaintiff on 09.06.2004, and the suit therefore had
to be filed to challenge the documents dated 09.06.2004 by
09.06.2007, however, the subject suit was filed by the
appellants/plaintiffs only on 26.05.2012 i.e well beyond the period of
limitation. Trial court therefore in my opinion rightly rejected the
plaint as time barred by applying Article 58 of the Limitation Act read
with Section 3 thereof.
8. Learned counsel for the appellants/plaintiffs argued that
while dealing with the application under Order VII Rule 11 CPC only
contents of the plaint have to be seen and it is further argued that the
subject suit raised disputed questions of facts which required trial and
therefore plaint could not be rejected under Order VII Rule 11 CPC. I
cannot agree with the submissions inasmuch as the trial court has
taken admitted facts that the appellants/plaintiffs are challenging the
documentation dated 09.06.2004 by a suit filed on 26.05.2012 i.e. after
around eight years of execution of documents and therefore such
challenge is time barred in view of Article 58 of the Limitation Act
which required challenge to be made within a period of three years.
There are no disputed questions of facts which require trial because
the trial court has referred to the admitted facts as stated in the plaint.
9. There is no merit in the appeal. Dismissed.
SEPTEMBER 8, 2017 VALMIKI J. MEHTA, J
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