Delhi High Court
Kamlesh Kumari & Anr vs Sandhya Education Society & Ors on 2 April, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 13th March, 2018
Pronounced on: 02nd April, 2018
+ CS(OS) 3971/2014
KAMLESH KUMARI & ANR ..... Plaintiff
Through : Mr.Ravi Gupta, Senior Advocate
with Mr.Ankit Jain, Ms.Mallika
Bhatia, Advocates.
versus
SANDHYA EDUCATION SOCIETY & ORS ..... Defendants
Through : Mr.Vidit Gupta, Advocate for
defendants nos.1, 3 to 5.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
I.A. 9426/2017
1. This application is moved on behalf of defendants No.1, 3, 4 and 5
under Order 7 Rule 11 Civil Procedure Code (herein after referred as
'CPC') seeking rejection of plaint.
2. The main plea taken by the defendants is the plaintiff has filed a
suit for possession for 2584 square yards approximately falling in Khasra
No.1/127, Chauhan Bangar, Delhi-110053 (hereinafter referred as the
'suit property') and despite the defendants having raised an objection qua
the ownership of the plaintiffs in the subject property prior to filling suit,
the plaintiffs ought to have filed a suit for declaration declaring them to
be the owners of the subject property rather than filing this suit for
possession and injuction. It is submitted the plaintiff had filed a suit in
District Courts against the defendants claiming to be the legally wedded
wife of late Shri Shyam Sunder Goyal and prayed for opening of a
locker. The locker was operated and inventory of the documents lying
therein was prepared. As per the said inventory, the ownership
documents of late Shri Shyam Sunder Goyal, to the extent of 1345 square
yards only, were found available and the plaintiffs never filed any such
documents of ownership of such 2584 square yards of the subject
property and that in any case, the inventory speaks about the ownership
of 1450 square yards only in the subject property and hence without
seeking declaration qua the ownership of the premises, the suit is not
maintainable. The learned counsel for the applicants have relied upon
Section 34 of the Specific Relief Act which is as follows:
"34. Discretion of court as to declaration
of status or right.-Any person entitled to
any legal character, or to any right as to any
property, may institute a suit against any
person denying, or interested to deny, his
title to such character or right, and the court
may in its discretion make therein a
declaration that he is so entitled, and the
plaintiff need not in such suit ask for any
further relief:
PROVIDED that no court shall make any
such declaration where the plaintiff, being
able to seek further relief than a mere
declaration of title, omits to do so.
Explanation: A trustee of property is a
"person interested to deny "a title adverse to
the title of someone who is not in existence,
and for whom, if in existence, he would be a
trustee."
3. The learned counsel for the defendants relied upon Anathula
Sudhakar v. P. Buchi Reddy (Dead) by L.Rs. & Ors AIR 2008 SC 2033
wherein the Supreme Court held:-
"17. To summarize, the position in regard
to suits for prohibitory injunction relating to
immovable property, is as under:
(a) Where a cloud is raised over
plaintiff's title and he does not have
possession, a suit for declaration and
possession, with or without a consequential
injunction, is the remedy. Where the
plaintiff's title is not in dispute or under a
cloud, but he is out of possession, he has to
sue for possession with a consequential
injunction. Where there is merely an
interference with plaintiff's lawful
possession or threat of dispossession, it is
sufficient to sue for an injunction
simpliciter."
Hence it is argued that since the defendants have raised a cloud
over the title of the plaintiff, the plaintiff ought to have filed a suit for
declaration of his title too.
4. The learned senior counsel for the plaintiff referred to the amended
plaint to reveal facts stated therein viz., late Shri Shyam Sunder Goyal
was an erstwhile owner of the suit property i.e., the entire area
comprised of built up premises having residential houses, offices and
shops etc. The plaintiff no.1 being the widow of late Shri Shyam Sunder
Goyal and plaintiff No.2 being his son now are the owners of subject
property. The details of the land (subject property) purchased during the
lifetime of late Shri Shyam Sunder Goyal is duly mentioned in the plaint
and it is alleged whatever documents were available with the petitioner at
the time of filing of this suit viz. the inventory etc. they have filed it
along with the plaint and it is only after filing of the written statement by
the defendants they came to know about forged documents of ownership
created by the defendants, hence in the amended suit the plaintiffs have
sought for a declaration and cancellation of such documents. It is alleged
there is no provision in law which bars the filing of a suit without
documents if the plaintiff has some in his possession. The averments of
the plaintiffs made in the plaint are specific and hence it is necessary the
plaintiffs must get a chance to prove they are owners of the premises in
dispute. Rather in para 28 of the plaint, the plaintiffs have claimed to be
the sole legal heirs of late Shri Shyam Sunder Goyal, an erstwhile owner
of the subject land/property in dispute.
5. The decision in Anathula Sudhakar (Supra), as relied upon by the
defendants, is based upon a suit for injunction simpliciter whereas the
law qua suit for possession is different. In a suit for possession, the relief
of declaration is implicit as one cannot a get decree of possession unless
and until he is able to prove his title qua the suit property.
6. In Ashok Kumar vs. Rustam and Ors. MANU/DE/0197/2016, this
Court held: -
"16. A relief of declaration of title to immovable
property is implicit in a suit for recovery of
possession of immovable property based on title
inasmuch as without establishing title to property,
if disputed, no decree for the relief of possession
also can be passed. Thus, merely because a
plaintiff in such a suit also specifically claims the
relief of declaration of title, cannot be a ground to
treat him differently and reduce the period
of limitation available to him from that provided of
twelve years, to three years."
7. Further in Sunil Kohli and Ors vs. Subhash Chand Dua and Ors.
MANU/DE/1253/2016, this Court held: -
"5. The counsel for the appellants/plaintiffs
contends that the order of the learned ADJ
rejecting the plaint on the ground of the
appellants/plaintiffs being required to file a suit
for declaration and which was barred by time is
contrary to the dicta of my judgment in Ashok
Kumar v. Mohd. Rustam MANU/DE/0197/2016 :
227 (2016) DLT 385 holding that in suits claiming
relief with respect to immovable property, the
relief of declaration even if claimed is superfluous
and the limitation for the suit would be governed
by the limitation provided for the relief of
possession, if possession is claimed, and the longer
limitation period provided for instituting a suit for
recovery of possession would not be curtailed by
the lesser limitation of three years provided for a
suit for declaration."
8. In Smt. Sarbadia Bai and Others vs. Ishwardin Singh and Others,
1971 MPLJ 794, it was held: -
"Upon my view that a declaration of title was
implicit in the relief of possession asked for, the
Civil Court undoubtedly had jurisdiction to try this
suit, see, Nathu v. Dilbande Eussain (supra). In
Kulluram v. Ganesh Prasad,. 1962 MPLJ SN 237
(Second Appeal No. 127 of 1961, decided on the
6th March, 1962. it was held that section 215
provides merely an alternate summary remedy and
does not take away the jurisdiction of Civil
Courts."
9. Hence in the circumstances where the plaintiff has filed a suit for
declaration, recovery of possession and damages, a declaration qua the
title stand implicit in its relief of possession. Moreso at this stage the
Court need to see only the averments in the plaint and hence considering
such averments and without going to the defence in the written statement,
instant application shall not survive and is accordingly dismissed.
10. No order as to cost.
I.A. 9427/2017
In view of above, the application stands disposed of with a
direction to the defendants No.1, 3 to 5/applicants to file their written
statement to the amended plaint within four weeks from today with an
advance copy thereof to the learned counsel for the plaintiff. Replication
thereto, if any, be also filed within four weeks thereafter.
CS(OS) 3971/2014 and I.A. 25946/2014, 4305/2016, 9428/2017
11. List for completion of the pleadings and further directions before
the learned Joint Registrar on 10.07.2018.
YOGESH KHANNA, J.
April 02, 2018
Rekha/M
