Suresh Chander vs Durga Dutta & Ors
2019 Latest Caselaw 403 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No. 842/2016


%                                                  22nd January, 2019

SURESH CHANDER                                           ..... Appellant
                           Through:      Mr. Ashok Gupta and Ms.
                                         Laxmi    Gupta,      Advocates
                                         (Mobile No. 9810309723).

                           versus

DURGA DUTTA & ORS                                     ..... Respondents

                 Through:                Mr. R.K. Somkiya, Advocate
                                         for R-1 and 6 (Mobile No.
                                         9810124896).
                                         Mr. Rahul Gupta, Advocate for
                                         R-2 (Mobile No. 9145487483).
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 09.09.2016 by which

the trial court has rejected the suit plaint as barred by limitation and

the trial court has also held that the appellant/plaintiff has no locus

standi to file the suit.

2. The facts of the case are that the appellant/plaintiff is a

handicapped person, but is appointed as a Head Constable with the

Delhi Police. The plaint filed by the appellant/plaintiff seeks the

reliefs of permanent injunction and declaration stating that he was

allotted plot no. 79, Pocket-3, Sector 25, Rohini, Delhi by the Delhi

Development Authority (hereinafter 'DDA') in terms of the Letter

dated 27.03.1991. It was pleaded by the appellant/plaintiff that since

he was a handicapped person, he could not pursue the matter with the

DDA and therefore he appointed one, Sh. Radhey Shyam, son of Sh.

Mange Ram on 10.10.1992 as his power of attorney holder and the

appellant/plaintiff also gave some blank papers to the said Sh. Radhey

Shyam. It is pleaded that Sh. Radhey Shyam failed to pursue the

matter and therefore the appellant/plaintiff cancelled the General

Power of Attorney issued in favour of Sh. Radhey Shyam on

27.11.1996. The appellant/plaintiff further pleads in the plaint that he

came to know from one Mr. Kaptan Singh that Sh. Radhey Shyam had

expired in a road accident. It was further pleaded that the DDA had

executed a Perpetual Lease Deed on 17.10.1996 in favour of the

appellant/plaintiff. It is also pleaded that the appellant/plaintiff got

possession of the suit property vide Letter dated 06.08.1998. It is

then pleaded in the plaint that from August, 2010 he was harassed by

gunda elements and property dealers in the area with respect to the

suit property and it was stated that the respondent no. 1/defendant no.

1 along with one Sh. Devinder Mann/respondent no. 6/defendant no. 6

claimed to have purchased the suit property. These respondent nos. 1

and 6/defendant nos. 1 and 6 are said to have created a scene at the

house of the appellant/plaintiff. The appellant/plaintiff pleads that on

11.09.2010 he was forcibly taken to the office of one Sh. Sunil Gupta

property dealer and subjected to threats and was forced to sign certain

papers failing which he and his family would be eliminated. It was

pleaded that the appellant/plaintiff being so threatened was forced to

sign the General Power of Attorney, Possession letter and other related

documents of the suit property. It was pleaded that the appellant/

plaintiff thereafter discussed the matter with his senior officers and

contacted the SHO of Police Station Shahbad Dairy and a Complaint

was given vide DD No. 26B dated 18.09.2010 but no action was

taken. Reminder was also said to be given to the SHO on 06.10.2010

vide Diary LC No. 967 dated 06.10.2010. The appellant/plaintiff

being aggrieved by the non-registration of the FIR filed a complaint

case under Section 200 read with Section 156(3) of the Code of

Criminal Procedure, 1973 before the concerned Metropolitan

Magistrate (M.M.) and in this case a report was filed on by the

Investigating Officer on 04.02.2011. The appellant/plaintiff pleads

that he has paid property tax for the month of March, 2012. It is also

further pleaded in the plaint that only on getting the final report on

03.07.2013 in the criminal court that he approached DDA to know the

status as to why the perpetual lease of the appellant/plaintiff was

cancelled and a fresh perpetual lease was executed in favour of the

respondent no.1/defendant no.1 as the DDA had executed a perpetual

lease in favour of the respondent no.1/defendant no.1. Accordingly,

pleading that the appellant/plaintiff continues to be the owner of the

suit property and had never sold the suit property to the respondent

nos. 1 and 6/defendant nos. 1 and 6, the subject suit for declaration

and injunction was filed.

3. The trial court has decided the issue of limitation as a

preliminary issue, and rightly so, because only the admitted facts

stated in the plaint have been looked at. Once only the admitted facts

stated in the plaint have been looked at, in fact, the suit could have

been rightly dismissed by a preliminary issue because there were no

disputed question of fact which required trial. Admissions of plaint

are admissions of the plaintiff, and therefore, the argument of the

counsel for the appellant/plaintiff before this Court that there is a

mixed question of law and fact is a misconceived argument, and is

therefore rejected.

4(i). The period of limitation for cancelling of a document is

provided in Article 59 of the Limitation Act, 1963. This article provides

that there is a period of three years of limitation to set aside an

instrument and the limitation commences from the date when the facts so

as to cancel the instrument become known to the plaintiff. In the present

case, as per the plaint itself, the appellant/plaintiff pleads that on

11.09.2010 he forcibly signed documents and thereafter filed a complaint

with the concerned police station on 18.09.2010. Paras 8 and 9 of the

plaint specifically plead the factum that documents with respect to the

suit property were forcibly got signed from the appellant/plaintiff.

However, the subject suit for declaration with respect to the invalidity of

the documents alleged to have been executed by the appellant/plaintiff

has been filed on 07.01.2016. The period of limitation of three years

began from 11.09.2010 and in any case from filing of the complaint by

the appellant/plaintiff with the police on 18.09.2010, and therefore, the

present suit plaint filed on 07.01.2016 as per Article 59 of the Limitation

Act was clearly time barred, and this is so rightly held by the trial court.

4(ii). Also, in my opinion, the trial court has rightly held that as

per the plaint, the appellant/plaintiff admits that the perpetual lease in his

favour was cancelled and another perpetual lease had been executed by

the DDA in favour of the respondent no.1/defendant no.1/Sh. Durga

Dutta, and this fact was also known to the appellant/plaintiff when the

report was filed in the criminal case on 10.02.2011. Also, if this

document had to be got cancelled by the appellant/plaintiff, such a suit as

per Article 59 of the Limitation Act had to be filed by 10.02.2014, but it

is noted that the subject suit has been filed on 07.01.2016 only, and

therefore besides the fact that the challenge to the perpetual lease

executed in favour of the respondent no.1/defendant no.1 became time

barred, consequently, the appellant/plaintiff had no locus standi with

respect to the suit property because the title of the suit property stood

transferred in favour of the respondent no.1/defendant no.1 to the

knowledge of the appellant/plaintiff by 10.02.2011.

5. In view of the aforesaid discussion, there is no merit in the

appeal and the same is hereby dismissed.

JANUARY 22, 2019                                 VALMIKI J. MEHTA, J
AK