Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
RESERVED ON : 15 DECEMBER, 2017
th
DECIDED ON : 13 APRIL, 2018
+ RSA 336/2016
ANIL ANEJA ..... Appellant
Through : Mr.Madan Lal Sharma, Advocate with
Mr.Varun Nischal, Advocate.
versus
RAJIV KUMAR & ORS ..... Respondents
Through : Mr.Ajay K.Gupta, Advocate for R2.
Mr.Kush Sharma, Advocate for R3/DDA.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Present Regular Second Appeal has been preferred by the
appellant Anil Aneja to challenge the legality and correctness of a
judgment dated 04.07.2016 of learned Addl. District Judge in RCA
No.10/2015 whereby findings of the learned Trial Court vide
judgment dated 21.01.2015 in Suit No.87/2014 dismissing it under
Order 7 Rule 11 CPC were endorsed. The appeal is contested by the
respondents.
2. I have heard the learned counsel for the parties and have
examined the file. The appellant had filed a suit for declaration,
permanent, mandatory injunction as well as for specific performance.
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3. Briefly stated, the case of the appellant in the plaint was
that his father Bal Kishan Dass had started a business of wholesale and
trading of textile in the cloth market at Fateh Puri as HUF business in
which the appellant and respondents No.1 & 2 were coparceners. The
said HUF owned two immovable properties in plot No.1351 and 1355
in East Rohtas Nagar, Shahdara, Delhi and another plot measuring 200
sq.yd. located in Khasra No.370 of Mauza Siqdarpur Delhi (presently
East Rohtas Nagar). It is stated that various properties detailed in the
plaint were acquired from the funds and the income of the joint family
business being carried out in the name and style of “M/s.Bal Kishan
Sohan Lal”. Two other joint family business by the name and style of
“M/s.Aneja Sarees” and “M/s.Rangoli Creations” were also started in
1993 and 2002 respectively. It is stated that on the mutually
understanding and assurance given by respondents No.1 and 2 to
render complete accounts of the firm, the businesses of the firm “M/s.
Aneja Sarees” and “M/s.Rangoli Creation” were agreed to be managed
by respondents No.1 and 2 respectively. It is further stated in the
plaint that due to restrictions contained in the terms of DDA,
properties as mentioned in the plaint were purchased in the name of
different family members.
4. Appellant’s case in the plaint is that during the life time
of his mother Asha Rani Aneja, with the consent of all family
members, in order to avoid any dispute, an oral family settlement was
arrived at and it was agreed to allocate the Flat No.119A, Block-C,
Pocket-C, Shalimar Bagh, Delhi (hereinafter ‘the suit property’) to the
appellant absolutely and forever. In compliance of the said oral family
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settlement, possession of the suit property was given to the appellant
in May, 1990. Since then, he is in exclusive and continuous
possession of the suit property.
5. It is further averred that originally the suit property was
allotted to one Santosh Devi by DDA. Santosh Devi sold the suit
property to Arun Kumar Sanan on payment of 49,000/-; she executed
`
various documents in favour of Arun Kumar Sanan’s wife Pooja
Sanan. The documents i.e. agreement to sell, Will and registered
receipt all dated 19.01.1988 were executed and notarized. Santosh
Devi also executed GPA dated 19.01.1988 in favour of Arun Kumar
Sanan. On the strength of those documents, Pooja Sanan became the
owner of the suit property and with the consent and authority of his
wife Pooja Sanan, Arun Kumar Sanan further sold and handed over
the suit property to respondent No.1 Rajiv Kumar for a consideration
of ` 49,500/-. Various documents were executed in similar manner on
09.02.1989 in favour of the respondent No.1. Original documents
issued by DDA like allotment letter, demand letter, possession letter
etc. in favour of Santosh Devi and documents executed by Arun
Kumar Sanan in favour of respondent No.1 were kept in the custody
of their grandmother Vidyawanti Aneja. Allegations of the appellant
are that the respondent No.2 managed to remove those documents and
started misrepresenting that the suit property was acquired in the joint
names of respondents No.1 and 2. Due to the said misrepresentation,
a legal notice dated 18.09.2013 was served upon the respondent No.2.
6. Further averments in the plaint are that when respondent
No.1 was requested to execute the necessary documents for transfer of
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ownership in the suit property in favour of the appellant, he demanded
` 2 lacs as consideration; it was paid by the appellant by way of cheque
bearing No.860685 drawn on Union Bank of India. On receipt of 2
`
lacs with the knowledge and consent of respondents No.2 and 3 and
other family members, respondent No.1 executed and transferred sale
documents i.e. registered agreement to sell, registered GPA, notarized
receipts all dated 20.07.2002 in favour of the appellant.
7. Case of the plaintiff / appellant is that subsequently he
came to know that the respondent No.2 had manipulated fake and
bogus documents all dated 09.02.1989 purported to have been
executed by Smt.Pooja Sanan. Those documents were got executed
admitted from some imposter being respondent No.2’s associate. On
the basis of those documents, the respondent No.2 filed an application
before DDA for conversion of the suit property from lease-hold to free
hold. When the appellant came to know about it, he filed objections
before DDA vide letter dated 31.05.2007.
8. The suit filed by the appellant was contested by the
respondents. Respondent No.2 filed an application under Order 7
Rule 11 CPC for rejection of the plaint as the suit was barred by
limitation. The Trial Court by a detailed judgment dated 21.01.2015
allowed the application and rejected the plaint in view of Order 7 Rule
7(d) CPC. Being aggrieved by the said orders, the appellant filed
RCA No.10/2015, which came to be dismissed again by a detailed
order dated 04.07.2016. Being dissatisfied, the present appeal has
been preferred.
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9. Learned counsel for the appellant urged that the findings
of the Courts below cannot be sustained as it was specifically pleaded
that the respondent No.2 had got executed various forged and
fabricated documents by fraud and these facts came to the plaintiff’s
knowledge for the first time on 20.01.2014 when Pooja Sanan
executed a registered deed of ratification informing that all these
documents dated 09.02.1989 were never executed by her in favour of
respondents and that the property in question was sold by her only to
respondent No.1 and its possession was handed over to him. Counsel
urged that provisions of Section 17 of the Limitation Act are
applicable to the facts and circumstances of the case. It was further
urged that the limitation being a mixed question of law and fact cannot
be decided without getting the evidence of the parties during trial.
The Courts below fell into grave error by applying Article 58 of the
Limitation Act, 1963 instead of Section 17. Interpretation and
application of Article 54 of the Limitation Act with regard to the relief
of specific performance is also erroneous and contrary to the law.
Reliance was placed upon the authorities ‘ Prem Singh & Ors. vs.
Birbal & Ors. ’, AIR 2006 SC 3608; ‘ Kishore Chandra Samal vs.
Divisional Manager, Orissa State Cashew Development Corporation
Ltd., Dhenkanal ’, AIR 2006 SC 3613; ‘ Khaja Quthubullah vs.
Government of Andhra Pradesh & Ors. ’, AIR 1995 Andhra Pradesh
43; ‘ Ramesh B.Desai & Ors. vs. Bipin Vadilal Mehta & Ors. ’, 2006
(5) SCC 638; ‘ Balasaria Construction (P) Ltd. vs. Hanuman Seva
Trust & Ors. ’, 2006 (5) SCC 658; ‘ Satyendra Dwivedi vs. Smt.
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Hemlata Dwivedi & Ors. ’, AIR 2009 Chhattisgarh 3 and ‘ Rathnavathi
& Anr. Vs. Kavita Ganashamdas ’, 2015 (5) SCC 223.
10. It is not in dispute that it is a family dispute among
brothers. The appellant had initially filed a suit for declaration,
permanent, mandatory injunction and specific performance.
Subsequently, additional prayer seeking declaration that the
documents i.e. agreement to sell, registered receipt, registered Will
and affidavit all dated 09.02.1989 be declared as null and void was
also sought and allowed.
11. It is also not at issue that the suit property was initially
allotted by DDA to Santosh Devi. It is also not in dispute that Santosh
Devi executed various documents in favour of Arun Kumar Sanan to
sell the said suit property on receipt of ` 49,000/-. At the instance of
Arun Kumar Sanan, the documents were executed by Santosh Devi in
favour of his wife Pooja Sanan. On the strength of GPA dated
19.01.1988 in his favour, Arun Kumar Sanan further sold the suit
property to Rajiv Kumar – respondent No.1 for sale consideration of
49,500/- again by executing various documents dated 09.02.1989.
`
12. It is also not at controversy that respondent No.2 moved
DDA on the basis of the said documents for execution of conveyance
deed in his favour. The appellant after coming to know about it in
2007 filed objections before DDA against conversion in favour of the
respondent No.2 from lease hold to free hold. It is also not denied that
the DDA issued letter dated 17.05.2007 to the appellant and
respondents No.1 and 2 calling upon them to attend the office. The
appellant duly replied the said letter on 31.05.2007 intimating that he
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alone was in possession of the suit property. The appellant also
personally visited DDA office on various dates and filed letters dated
07.03.2007, 22.03.2007 and 21.05.2007 along with various documents
in support of the ownership and possession and these were received at
the office of DDA.
13. It is also a matter of record that the family disputes
between the parties were referred to Mediation and despite various
attempts made by the mediator the dispute could not be resolved. The
present suit was filed by the appellant seeking various reliefs in 2014
without waiting for the outcome of the objections filed by the
appellant before DDA regarding conversion sought by respondent
No.2 on the strength of the documents executed by Pooja Sanan all
dated 09.02.1989. Nothing is on record to infer if Pooja Sanan ever
informed DDA as to the individual to whom the suit property was sold
by her.
14. The appellant’s stand regarding ownership and
possession of the suit property is unclear. It was claimed by the
appellant that the suit property was a joint family property and was
purchased out of joint funds in the name of certain individuals / family
members to avoid certain objections. Appellant’s further case is that
pursuant to oral family settlement, the suit property came to his share;
he continues to be in possession of the suit property since 1990 and all
the payments qua the suit property have been paid by him to DDA.
On the other hand, the appellant claims that the suit property was
purchased in the name of respondent No.1 and when on the strength of
the family settlement, he asked the respondent No.1 to execute various
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documents of ownership in his name, he declined to do so and finally
demanded ` 2 lacs to convey the title to him. He was made to pay ` 2
lacs to the respondent No.1 and on that payment necessary documents
were executed on 20.07.2002 in his favour by the respondent No.1. It
is unclear as to why 2 lacs were paid by the appellant to respondent
`
No.1 when the property in question had fallen in his share by virtue of
alleged oral family settlement. It has not been reasoned as to why the
appellant did not initiate any proceedings to enforce the alleged
‘family settlement’.
15. It was only the respondent No.2 who in 2006 approached
DDA for conversion of the suit property from lease-hold to free-hold.
No plausible explanation has been offered by the appellant as to why
he did not make any attempt to get the suit property mutated in his
name or to move the DDA for conversion to free hold. Despite his
claim that the suit property was in his possession since 1990, the
electricity and water connections stand in the name of original allottee
Santosh Devi in the DDA record. Nothing is on record to show if any
intimation regarding the acquisition of the ownership of the suit
property in his favour was ever conveyed by the appellant to DDA.
16. Admittedly, the original documents regarding the suit
property are in possession of respondent No.2. Appellant’s allegations
are that these documents were earlier in the custody of their grand-
mother Vidyawanti, however, the respondent No.2 clandestinely
removed those documents. This plea is devoid of merits as at no stage
either Vidyawanti or the appellant lodged any complaint before any
authority for the alleged removal of original documents by respondent
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No.2. The appellant alleged that the documents all dated 09.02.1989
were got executed by respondent No.2 by ‘fraud’. The plaint does not
contain full and detailed particulars of the alleged fraud as required in
view of Order 6 Rule 4 CPC. No FIR whatever was lodged any time
by the victim. The appellant did not initiate any proceedings; civil or
criminal; against the respondent No.2 for committing the alleged
fraud. There is no denial that these documents under challenge did not
bear the signatures of the previous owner. Only on the basis of the
ratification deed dated 20.01.2014 which came into existence after a
long gap of 25 years allegedly executed by Pooja Sanan, allegations of
‘fraud’ have been levelled against the respondent No.2. Pooja Sanan
never filed any FIR or complaint against the respondent No.2 for the
alleged fraud.
17. This Court is primarily concerned with the rejection of
the plaint under Order 7 Rule 11 CPC. The Trial Court in the
impugned order dated 21.01.2015 gave detailed reasons for rejection
of the plaint as the cause of action had accrued to the appellant for the
first time in 2007, more specifically on 31.05.2007 as averred in the
plaint. The appellant did not file any proceedings for long and only in
2014 the instant suit was filed. In para 11 of the plaint, it was
specifically claimed that in 2006 the appellant had come to know that
the documents dated 09.02.1989 were forged and fabricated and on the
basis of those documents the respondent No.2 attempted to get the suit
property converted into free-hold in his name from DDA. Despite
coming to know about the alleged forged and fabricated documents in
2006 and the fact that the proceedings before DDA were contested by
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the appellant claiming himself to be owner in possession of the suit
property, he did not bother to initiate any civil or criminal proceedings
before 2014. The Trial Court has rightly noted that appellant’s title on
the basis of the documents executed in his favour by respondent No.1
on 20.07.2002 and by virtue of the alleged family settlement was
under cloud in 2006 – 2007; the appellant did not file the suit for
declaration of ownership within the period of limitation i.e. three years
from the date when the cause of action arose for the first time. In para
27 of the plaint it was admitted by the appellant that firstly cause of
action arose in May, 1990 when under the oral family settlement, the
suit property was allocated to him and also in the year 2006 when the
respondent No.2 on the basis of forged documents applied for
conversion of the suit property and he (the plaintiff) came to know
about it in March, 2007. The Trial Court further noted that for the
relief for specific performance, in alternative, again the suit filed was
not within three years as prescribed under Article 54 of the Limitation
Act. The appellant allegedly got possession of the suit property under
oral family settlement in May, 1990 and subsequently, he paid ` 2 lacs
to respondent No.1 to get the documents i.e. agreement to sell etc.
registered in his favour on 20.07.2002. Again, the cause of action
arose to the plaintiff to file suit for specific performance when his
claim of being owner on the basis of the said documents was
challenged / disputed in 2006. The filing of the present suit seeking
various reliefs in 2014 is apparently beyond the period of limitation.
The Appellate Court has also given valid reasons to decline to accept
the appellant’s contention. It rather went ahead to conclude that the
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appellant had no cause of action to institute a suit for seeking specific
performance when, in the plaint, it was specifically claimed by him
that he had become absolute owner of the suit property on execution
of documents and payment of ` 2 lacs regarding sale of the property by
respondent No.1 in his favour on 20.07.2002. It further noted that
since the appellant had claimed ownership and possession on the basis
of the said documents and nothing more was to be done subsequent to
the execution of these documents, there was no reason to file suit for
specific performance.
18. The concurrent findings of the Courts below are based
upon fair appreciation of the facts and law. While considering the
application under Order 7 Rule 11 CPC, the Courts below relied upon
the averments in the plaint alone to conclude that the suit filed by the
appellant was not within limitation. Pleas raised in the written
statement were not looked into. Settled position is that assertions in a
plaint must be assumed to be true for the purpose of determining
whether the suit filed by the plaintiff was within limitation. Clause (d)
of Rule 11 Order 7 applies in those cases only where the statement
made by the plaintiff in the plaint without any doubt or dispute shows
that the suit is barred by any law in force.
19. The appellant cannot be permitted to extend or enlarge
the period of limitation by alleging ‘fraud’ only on the basis of alleged
ratification deed executed by the previous owner Pooja Sanan on
20.01.2014. When the ‘fraud’ first came to appellant’s knowledge in
2006 / 2007, remedy before him was to initiate proceedings that time.
Rules of limitation are meant to see that parties do not resort to
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dilatory tactics but seek their remedy promptly and those who sleep
upon their claims should not be assisted by the Courts. There was no
occasion for the appellant to search the previous owner to get
ratification deed in 2014. If this approach is accepted, it would be an
unending affair and it would be within the reach of the concerned
individual to get the limitation extended to an indefinite period. Filing
of the suit by the plaintiff alleging ‘fraud’ was not dependent upon the
ratification deed executed by the Pooja Sanan on 20.01.2014.
20. Since all the facts pleaded in the plaint were in the
appellant’s knowledge in 2006 / 2007, the present suit seeking various
reliefs filed in 2014, needless to say, is barred by limitation.
21. The Regular Second Appeal is unmerited and is
dismissed.
22. Trial Court record be sent back forthwith with the copy of
the order.
(S.P.GARG)
JUDGE
APRIL 13, 2018 /
tr
RSA 336/2016 Page 12 of 12