Delhi High Court
Gyanender Singh vs Subhash Chand & Ors. on 19 February, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 11th January 2018
Date of decision :19th February, 2018
+ RFA 95/2017
GYANENDER SINGH ..... Appellant
Through: Mr. L. B. Rai, Advocate.
versus
SUBHASH CHAND & ORS. ..... Respondents
Through: Mr. Lakshmi Narain and Mr. Honey
Taneja, Advocates.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. The present appeal arises out of judgement and order dated 27th
September, 2016 by which the suit for specific performance and permanent
injunction filed by the Appellant/Plaintiff (hereinafter „Plaintiff‟) was
dismissed as being barred by limitation.
2. Late Shri Banwari Lal was the co-owner of land comprising in Khasra
No.33/3/1 (1-16) in the Revenue Estate of Village Palam, New Delhi. Late
Shri Banwari Lal had four sons namely Subhash Chand, Satbir Singh,
Rajesh Kumar and Ganga Ram. Plaintiff is the son of Ganga Ram, who is
now deceased and is thus represented by his heirs. The
Respondents/Defendants (hereinafter „Defendants‟) are the other sons of
Late Shri Banwari Lal. The Plaintiff is thus the nephew of the Defendants
who are his uncles. There are disputes pending with the Gaon Sabha in
respect of the land which forms the estate of Shri Banwari Lal.
3. However, the dispute in the present case relates only to 50 sq. yards
forming part of Khasra No.33/3/1 the above mentioned land which was
agreed to be sold by the Defendants to the Plaintiff, vide agreement to sell
dated 16th February, 2009. The consideration agreed was Rs.3,50,000/- and
Agreement to Sell, GPA, Will, possession letter, affidavit and receipt were
executed. The Plaintiff claimed to be in possession of this part of the
property since 16th February, 2009 and has raised the boundary wall.
4. Plaintiff had filed an earlier civil suit no.1082/14/06 against Late Shri
Banwari Lal and the Defendants which was dismissed on 15th January, 2016
under Order VII Rule 11 CPC. It is the case of Plaintiff that after the
agreement to sell dated 16th February, 2009 was executed, the Defendants
have failed to execute the final sale deed or get the same registered. It is the
Plaintiff's case that after the dismissal of the said earlier suit, attempts were
made by the Defendants to dispossess the Plaintiff. Hence, the present suit,
praying for decree of specific performance, possession and permanent
injunction came to be filed.
5. In the written statement, the Defendants pleaded that all the legal heirs
of Late Shri Banwari Lal have not been impleaded and the suit was bad for
non-joinder. It was also pleaded that the documents including agreement to
sell of 16th February, 2009 were not mentioned in the earlier suit despite
Plaintiff having knowledge of the said suit and hence, the present suit was
not maintainable. The Defendants also challenged the genuineness of the
documents dated 16th February, 2009. The Defendants further challenged
that no consideration was received by them and that the documents appeared
to be completely fabricated. The Defendants further submitted that there was
a compromise deed dated 21st February, 2009 which was sought to be filed
by the Plaintiff herein in civil suit no.1082/14/06, which was finally
withdrawn and even at that stage, the documents dated 16th February, 2009
had not been pleaded and no right was claimed in view of the said
documents.
6. Preliminary issue was framed on 19th August, 2016 to the following
effect:
"Whether the suit of Plaintiff is barred by law of limitation."
7. The Trial Court relied upon Article 54 of the Limitation Act and held
that the pleadings in respect of cause of action are very vague. The Court
further held that since no specific date was provided for performance in the
agreement for performance of the agreement and since no notice was issued
calling upon the Defendants to execute the sale deed, the cause of action
would to be calculated from the date of agreement i.e. 16th February, 2009.
Since the date of institution of the suit is 18th March, 2016 the suit is barred
by limitation.
Submission of Appellant/Plaintiff
8. The submission of counsel for the Plaintiff is that the Plaintiff has
been in possession of the property i.e., 50 sq. yards for many years now. He
submits that the documents were executed by the Defendants and that there
is no doubt as to the genuinity of the documents. He further submits that
civil suit no.1082/14/06 was rejected under Order VII Rule 11 CPC on 15th
January, 2016. However, the same was set aside on 5th September, 2016 by
the Appellate Court. Learned counsel for the Plaintiff further submits that
under Article 54 of the Limitation Act, the three year period begins from the
date when specific performance is refused. He relies upon judgments of the
Supreme Court in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust
and Ors. (2006) 5SCC 658 (Balsaria supra) and Ramesh B. Desai & Ors.
v. Bipin Vadilal Mehta & Ors., AIR 2006 SC 3672.
Submissions of Respondents/Defendants
9. On the other hand, learned counsel for the Defendants has submitted
that the Plaintiff was a party to civil suit no.1082/14/06 but at no point did
the Plaintiff rely upon the agreement to sell and other documents. If the
Plaintiff had the title of 50 sq. yards of the property, he should have asserted
the same as part of the said proceedings. Defendants further relies upon
order dated 6th September, 2013 passed in suit no.598/2012 between Shri
Ganga Ram and Late Shri Banwari Lal which held that Shri Banwari Lal
was the owner of the suit property and hence Shri Ganga Ram was not
entitled to any relief and injunction. Counsel for Defendants further submits
that since during the pendency of the said suit, Shri Ganga Ram had passed
away, the Plaintiff was impleaded in the said suit and hence he had
knowledge of the rival claims therein. If the Plaintiff had any independent
rights qua 50 sq yards of the land which was part of the said larger property,
he would have pleaded the same. The Defendants rely upon the judgment of
the Supreme Court in Janardhanam Prasad v. Ramdas, JT 2007 (3) SC
187.
Analysis and Findings
10. The Court has perused the judgment of the Trial Court and pleadings
of the parties. It is clear from the factual narration that there are at least two
pending disputes in respect of the same land part of which is the subject
matter of the present appeal. The dispute had originally arisen between Late
Shri Ganga Ram and Late Shri Banwari Lal and after their demise, the
dispute continued between their LRs. Copies of the agreement to sell, Will,
possession letter, receipt etc. have all been placed on record but at this stage,
without evidence it is not possible to hold that the said documents are either
fabricated or that these are genuine documents. It is the Plaintiff's
categorical case that he is in possession of 50 sq. yards of the property.
However, the Defendants raise doubts as to the conduct of the Plaintiff for
having not relied upon these documents in any of the earlier litigations
amongst the parties.
11. The Plaintiff's contention is that limitation being a mixed question of
fact and law especially in a matter of this nature, the Trial Court ought not to
have rejected the suit, at the initial stage, by holding it to be time barred.
Both the parties have heavily relied upon the orders passed by the Trial
Court in different proceedings which are pending between them. While the
Defendants rely upon the conduct of Plaintiff, the Plaintiff relies upon the
documents which have been executed. Photographs have been placed on
record to show the extent of construction in the suit property. The Plaintiff
submits that while the other proceedings relate to the entire land, this suit
relates only to the 50 sq. yards, which is the subject matter of the agreement
to sell. The documents as placed on record appear to bear signatures of all
the three defendants and the Plaintiff. While there could be some merit in
the averment that the Plaintiff all along was involved in other litigations
relating to the estate of his father. There is no specific mention of the 50 sq.
yards property specifically in the said suit. Copy of a complaint filed by the
Plaintiff to the police in Palam Gaon has been placed on record. It clearly
appears that there are a large number of disputes between the parties and the
fact that the Plaintiff did not assert his title to the 50 sq. yards property
specifically in the earlier two suits pending in relation to the larger part of
the land among the extended family, would not by itself render the instant
suit time barred. The suit for specific performance has the following prayers.
"(i) A decree of Specific Performance of the
Agreement to Sell dated 16.02.2009 in regard to
plot measuring 50 sq. yds. Comprising in Khasra
No.33/3/1, as shown red colour in the site plan
situated in the revenue estate of Village Palam,
Delhi and directing the defendants to execute the
Sale Deed and get the same registered in favour of
the plaintiff.
(ii) A decree of possession may also be passed in
favour of the plaintiff and against the defendants in
regard to the above said plot in dispute if the
defendants dispossess the plaintiff from the above
said plot in suit during the pendency of the suit.
(iii) A decree of permanent injunction may also
passed in favour of the plaintiff and against the
defendants restraining the defendants from
creating, transferring, alienating etc. in favour of
any person or to dispossess the plaintiff from the
plot in suit as shown in red colour in the site plan
Annexure-B."
This prayer is distinct and different from the prayer in suit
no.1082/14/06, which reads as under-
"It is, therefore, most respectfully prayed that this
Hon‟ble Court may kindly be pleased to pass a
decree of permanent injunction in favour of the
plaintiffs and against the defendants, thereby
restraining the defendants, their agents, servants,
employees etc. from dispossessing the plaintiffs
from the suit property or from causing any
interference or obstruction in the peaceful use and
enjoyment of the plaintiffs of the suit property
bearing khasra no.33/3/1, measuring 1 bigha and
16 biswas, situated within the revenue estate of
Village Palam, New Delhi, which is more clearly
shown in red colour in the site plan attached
herewith, in any manner. The defendants be
further restrained from selling, transferring or
creating any third party interests in the suit
property in any manner whatsoever."
12. It is not impossible to imagine a situation wherein, due to the
litigation relating to the larger portion of land pending between the parties,
the Defendants would have tried to dispossess the Plaintiff from the
constructed portion in the 50 sq. yards. If such a situation has indeed arisen
that would definitely constitute a valid cause of action for the Plaintiff to file
the present suit. The cause of action in the present suit is pleaded as under:
"19. That the cause of action for filing of the
present suit arose when the agreement to sell dated
16.02.2009 was executed between the plaintiff and
the defendants and when after the rejection of the
plaint of the plaintiff and other family members the
defendants became more hostile to dispossess the
plaintiff from the plot in dispute and further when
the defendants totally denied the execution of the
agreement to sell dated 16.02.2009 in favour of the
plaintiff and thus the cause of action is still
subsists."
Para 19 of the plaint has to be read with Para 16, which reads as
under:
"16. That after having purchased the above
said plot in suit the plaintiff has requested
the defendants many times to get the sale
deed executed and registered in favour of the
plaintiff and the defendants have been
postponing the same either on one ground
and the other and did not execute the sale
deed in favour of the plaintiff nor the same
was registered in favour of the plaintiffs
inspite of the fact that the plaintiff has
performed his part of the agreement fully as
the plaintiff has paid the full consideration
money of Rs.3,50,000/- to the defendants and
even actual physical possession was also
handed over to the plaintiff by the defendants
and lastly when the suit bearing
no.1085/14/6 was rejected on 15.01.2016 u/o
7 Rule 11 CPC and after the rejection of the
plaint the defendants started to dispossess
the plaintiff from the above said plot in suit,
but with ulterior motive to dispossess the
plaintiff from the suit plot did not succeed
and thereafter the defendants have given a
threat that no agreement was executed dated
16.02.2009 by the defendants with the
plaintiff and thus totally refused to perform
their part of the agreement by getting the
sale deed executed and registered in favour
of the plaintiff."
13. A conjoint reading of Paras 16 and 19 makes it evident that when the
plaint was rejected in civil suit no.1082/14/06, the Plaintiff had received a
threat of dispossession from the 50 sq yards property which it was
occupying. At this stage, therefore, without recordal of evidence, it would
not be possible to hold that the Plaintiff's suit was belated. The parties have
been in litigation all along but the order dated 15th January, 2016 possibly
triggered further animosity between the parties leading to complaints being
filed with the police.
14. In any event, the order dated 15th January, 2016 has now been set
aside by the Appellate Court and the suit has been restored to its original
number. While the said suit is in relation to the larger piece of land in
Khasra No.33/3/1(1-16) in revenue estate of Village Palam, New Delhi is
pending, the present suit in respect of 50 sq. yards forming part of the said
property could also be adjudicated with the earlier suits.
15. The facts being as they are, learned counsel for Plaintiff relies upon
judgment Ramesh B. Desai (supra) and Balasarai Construction Pvt. Ltd.
(supra) is appropriate.
16. The judgment cited by the Defendants Janardhanam Prasad (supra)
holds as under:-
"11. Applicability of the provisions of Article
54 of the Limitation Act must, therefore, be
determined having regard to the
aforementioned factual matrix in mind. It
reads as under:
"For specific Three years The date fixed
performance of for the
a contract performance,
or, if no such
date is fixed,
when the
plaintiff has
notice that
performance is
refused"
12. The court, in applying the period of
limitation, would first inquire as to whether
any time was fixed for performance of
agreement of sale. If it is so fixed, the suit
must be filed within the period of three years,
failing which the same would be barred by
limitation. Here, however, no time for
performance was fixed. It was for the courts
to find out the date on which the plaintiff had
notice that the performance was refused and
on arriving at a finding in that behalf, to see
whether the suit was filed within three years
thereafter."
17. In the present case, at the preliminary stage, until further evidence is
led in the matter, it appears that the threat of dispossession could have very
well arisen on 15th January, 2016. This finding is tentative as evidence is to
be led by the parties. The suit, however, could not have been rejected as
being barred, as in such cases, the question of limitation being a mixed
question of fact and law as held in Balsaria (supra), would require evidence
to be adduced. There are conflicting versions pleaded by both sides. The
stand of both the parties have their own merits and demerits. Suffice to say
at this stage that ex-facie cannot be held that suit is barred by limitation.
History of past litigations, some of which are still pending, clearly leads the
Court to the conclusion that evidence deserves to be led in the matter. The
fact that the Plaintiff may not have pleaded the agreement to sell in the
litigations filed by his father in respect of the larger share in the land does
not disentitle him from maintaining a separate suit to enforce the agreement
to sell and accompanying documents.
18. Accordingly, it is directed that the suit be restored to its original
number and be further proceeded with in accordance with law. The issue of
limitation already framed shall be adjudicated at the final stage by the Trial
Court. It is for the parties to request, clubbing of the other suits in respect of
the larger share in the land and to seek consolidation, if so advised. Such a
request would be considered by the Trial Court, in accordance with law.
19. The appeal is allowed with no orders as to costs.
PRATHIBA M. SINGH, J.
Judge
FEBRUARY 19, 2018/dk
