Capital Land Builders Pvt. Ltd. vs Komal & Ors
2018 Latest Caselaw 6119 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 8th October, 2018.

+                                 RFA 463/2018

       CAPITAL LAND BUILDERS PVT. LTD.           ..... Appellant
                    Through: Mr. Imran Moulaey, Adv.

                                  Versus
       KOMAL & ORS                                          ..... Respondents

                           Through:      Mr. Sandeep Kumar and Mr. Jatin
                                         Rajput, Advs. for R-1.
                                         Mr. Shahid Azad and Ms. Meenu
                                         Sharma, Advs. for R-2.
                                         Mr. Varun Nischal, Adv. for R-
                                         4/EDMC with Mr. D.K. Sharma,
                                         A.E. (Building).
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the order [dated 29 th January, 2018 in CS No.87/2018 of the Court of Additional District Judge (ADJ)-02, Shahdara] of dismissal in limine of a suit filed by the appellant/plaintiff.

2. This appeal came up first before this Court on 29 th May,2018 and thereafter on 31st May, 2018, when notice thereof was ordered to be issued.

3. All the five respondents namely (i) Smt. Komal; (ii) Smt. Poonam Panwar; (iii) Sub-Registrar-IV, Shahdara; (iv) Deputy Commissioner, East Delhi Municipal Corporation (EDMC); and, (v) S.H.O., P.S. Jyoti Nagar, Shahdara are reported to be served through ordinary process as well as dasti. The counsel for the appellant/plaintiff has also filed affidavit of

service by speed post/courier. A counter affidavit has also been filed by the respondent No.2 Smt. Poonam Panwar.

4. Mr. Sandeep Kumar, Advocate for the respondent No.1 Smt. Komal, counsel for the respondent No.2 Smt. Poonam Panwar and the counsel for respondent No.4 EDMC appear. None appears for the respondent No.3 Sub-Registrar and respondent No.5 S.H.O. Police Station Jyoti Nagar inspite of passover. In fact, the counsel for the respondent No.1 also has appeared only on passover.

5. Considering that the suit from which this appeal arises was dismissed in limine, without even issuing summons thereof to the respondents/defendants, and the impugned order was passed behind the back of the respondents/defendants, it is not deemed necessary to adjourn the hearing of this appeal or to call for the Trial Court record.

6. The appellant/plaintiff instituted the suit, from which this appeal arises, pleading (i) that the appellant/plaintiff is engaged in the business of colonisation on Khasras No.853, 854, 855, 861, 862, 863, 1017/867, 875, 876, 877, 878, 879 and 1132/892 situated in the area of village Gokalpur, Shahdara and has developed a residential colony namely Kailash Nagar Colony at Loni Road, Shahdara, Delhi jointly with its sister concern M/s Runwell (India) Pvt. Ltd.; (ii) that the appellant/plaintiff and its sister concern fragmented the entire area i.e. 81 bighas and 14 biswas into 157 plots, out of which 119 plots are owned by the appellant/plaintiff and the remaining 38 plots are owned by its sister concern; (iii) however, physical demarcation of individual plots has not been carried out; (iv) that the

aforesaid land was acquired vide sale deed executed by M/s G.S. Kashyap & Sons (HUF); (v) that in August, 2014, the appellant/plaintiff came to know that the respondent/defendant No.2 had executed a sale deed of property bearing No.A-9, Kailash Nagar Colony at Loni Road, Shahdara, Delhi admeasuring 275 sq. yds. belonging to the appellant/plaintiff in favour of respondent/defendant No.1, in connivance with the respondent/defendant No.3; (vi) that the appellant/plaintiff is the owner of the aforesaid property by virtue of sale deed executed in its favour by M/s G.S. Kashyap & Sons (HUF) on 15th July, 2004 and the Sale Deed dated 8th December, 2011 executed by respondent/defendant No.2 in favour of the respondent/defendant No.1 is a forged and fabricated document; (vii) that complaint with respondent/defendant No.5, of the aforesaid fraud was lodged on 22nd August, 2014; (viii) however no action was taken on the said complaint and the appellant/plaintiff filed a criminal complaint before the Metropolitan Magistrate, Shahdara under Section 156(3) of the Cr.PC and in pursuance to which FIR No.0153 dated 20 th September, 2017 was registered against the respondents/defendants No.1&2; (ix) that in July, 2017, physical demarcation was carried out and when it was learnt that the respondent/defendant No.1 had made illegal construction over plot No.A-9, Kailash Nagar Colony at Loni Road, Shahdara and was carrying on business of trading in marble and stone therefrom; complaints were again made to respondent/defendant No.5 as well as respondent/defendant No.4.

On the aforesaid pleas, the suit, titled as "Suit for permanent and mandatory injunction, declaration and recovery of possession" with the reliefs of, (a) declaration that the sale deed dated 8 th December, 2011 was

void and not binding on the appellant/plaintiff; (b) mandatory injunction directing the respondent/defendant No.4 EDMC to demolish the illegal construction; (c) mandatory injunction directing the respondent/defendant No.4 EDMC to cancel the trade licence if any granted to the respondent/defendant No.1; (d) permanent injunction directing the respondent/defendant No.1 to hand over vacant peaceful physical possession of the property to the appellant/plaintiff; (e) permanent injunction restraining the respondents/defendants from interfering with use and occupation of the appellant/plaintiff of the property; (f) permanent injunction restraining the respondent/defendant No.3 Sub-Registrar from registering any document with respect to plot No.A-9, Kailash Nagar Colony at Loni Road, Shahdara, Delhi; and, (g) mandatory injunction directing respondent/defendant No.1 to deposit the sale deed dated 8 th December, 2011 in the Court, was filed.

7. The learned ADJ to whom the suit was assigned and before whom the suit came up for admission rejected the plaint, holding (I) that as per the averments of the appellant/plaintiff itself, the appellant/plaintiff came to know of the sale deed first in August, 2014; (II) that Article 56 of the Schedule to the Limitation Act, 1963 provides for limitation for a suit for declaration of forgery of an instrument issued or registered, of three years commencing from the date of registration or when the factum of registration becomes known to the plaintiff; (III) that Section 3 of the Limitation Act requires the Court to dismiss the suit, if barred by time; (IV) that applying Article 56 supra, the suit as per averments in the plaint itself was barred by time.

8. Notice of this first appeal was issued on the contention of the counsel for the appellant/plaintiff that the learned ADJ, in the impugned order, failed to notice that the suit was also for the relief of recovery of possession.

9. I have also pronounced in this respect in Ashok Kumar Vs. Rustam 227 (2016) DLT 385 (SLP(C) No.14543/2016 preferred whereagainst was dismissed on 30th June, 2016) and Sunil Kohli Vs. Subhash Chand Dua 2016 SCC OnLine Del 3244 (SLP(C) No.26164/2016 preferred whereagainst was dismissed on 14th September, 2016) and it has been held that when a relief of declaration is coupled with a relief of recovery of possession, the larger period of limitation for the relief of possession and not the lesser period of limitation for the relief of declaration would apply. Reference may also be made to Vidur Impex and Traders Pvt. Ltd. Vs. Pradeep Kumar Khanna (2017) 241 DLT 481.

10. The counsel for the respondent/defendant No.2 has argued that the learned ADJ has rightly rejected the plaint as barred by time. He has contended that no relief of possession has been claimed in the plaint and the relief, as prayed, of "Pass a Decree of Permanent Injunction directing the Defendant No.1 to handover vacant peaceful possession of suit property i.e. plot No.A-9, Kailash Nagar Colony at Loni Road, Shahdara, Delhi to the plaintiff." is not the relief of recovery of possession.

11. Attention of the counsel for the respondent/defendant No.2 has however been drawn to the valuation paragraph of the suit, where the suit has been valued ad valorem for the relief of recovery of possession.

12. Though the wording of the prayer made for possession is not as it should be in law but as has been held by the Division Bench of this Court in Teva Pharmaceuticals Industries Ltd. Vs. Natco Pharma Ltd. 2010 (2014) DLT 591, Bhupinder Kumar Suri Vs. Naresh Kumar Suri 241 (2017) DLT 698 and Kamini Lal Vs. Raman Lal Sethi MANU/DE/2938/2018 that what was held by the Britishers with respect to mofussil pleadings unfortunately continues to hold good today also, would apply. The said error on the part of the advocate for the appellant/plaintiff has thus to be ignored and it has to be holistically seen what is the relief claimed in the suit. The relief, as claimed, is for recovery of possession of immoveable property, as so stated in the title of the plaint as well.

13. Attention of the counsel for the appellant/plaintiff has however been also drawn to my subsequent judgment in Rajni Bedi Vs. Desh Raj Chopra MANU/DE/7687/2017 where a doubt has been expressed as to the proposition laid down in Ashok Kumar Vs. Rustam supra in certain situations.

14. The counsel for the appellant/plaintiff has drawn attention to the judgment dated 20th September, 2018 in Civil Appeal No.5870/2015 titled Ghewarchand Vs. M/s Mahendra Singh of the Supreme Court, also holding that where the relief of recovery of possession of immoveable property is claimed, the limitation would not be governed by the relief which may have also been claimed of declaration and for which a lesser period of limitation has been prescribed.

15. It is not deemed expedient to, in this appeal against an order of rejection in limine of the plaint as barred by time, finally decide the aspect of limitation, as the respondents/defendants have not even had an occasion to file their written statement as yet. It is felt that the issue of limitation should be left to be adjudicated afresh, after the respondents/defendants have entered appearance in the suit.

16. The impugned order of the ADJ is however liable to be set aside merely on the ground that the learned ADJ has failed to read, that the relief claimed in the suit, was also of recovery of possession of immovable property, perhaps stopping at the words 'permanent injunction' in prayer paragraph (d) aforesaid of the plaint and not read the entire prayer paragraph and for which reason that the learned ADJ did not apply the law as applicable to a suit for declaration coupled with a suit for recovery of possession of immoveable property.

17. The appeal thus succeeds and is allowed. The impugned order dated 29th January, 2018 is set aside and the suit restored to its original position, as at the time of assignment thereof to the learned ADJ. Decree sheet be prepared.

18. Since considerable time has already lapsed in the process, it is not deemed expedient to now waste any further time in service of summons of the suit. The respondents/defendants who have entered appearance before this Court are deemed to have served with the summons of the suit and the respondents/defendants to file written statement and/or any other application in the suit, on or before 12th November, 2018, when the parties

are directed to appear before the ADJ-02, Shahdara and the learned ADJ- 02, Shahdara shall thereupon proceed with the suit and/or any application in accordance with law.

19. A copy of this order be forwarded forthwith to the ADJ-02, Shahdara, so that before 12th November, 2018 the file of the suit can be requisitioned from the Record Room.

20. The appeal is disposed of.

RAJIV SAHAI ENDLAW, J.

OCTOBER 08, 2018 Bs..