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2007 DIGILAW 979 (DEL)

RAJINDER SINGH v. DAYAWATI

2007-05-10

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) IA No. 5428/2007 (u/o 22 R 10a CPC by LRs of Plaintiff No. 2)Notice, which is accepted by the counsel for the non-applicants. This application has been filed seeking substitution of the legal representatives of plaintiff No. 2, who passed away on 16. 4. 2007 and is survived by his wife, daughter and son. There is no opposition to the application. The application is allowed. Amended Memo of Parties be filed within a week. ( 2 ) CS (OS) No. 344/2006 the plaintiffs have filed a suit for recovery of possession of suit property bearing Khasra land Survey no. 417 measuring 3 bighas 19 biswas situated in village Masjid Moth, New Delhi and for declaration that the sale of property by late Gajdev Singh through registered sale deed dated 29. 08. 1956 (claimed by defendants 1-4 to be dated 27. 08. 1956) measuring one bighas out of the suit property measuring 3 bighas and 19 biswas to M/s National Pottery Works as also of one bigha sold out of the same vide sale deed dated 27. 06. 1955 (claimed by defendants 1-4 to be dated 27. 08. 1956), one bigha sold vide sale deed dated 06. 01. 1958, 19 biswas vide sale deed dated 23. 11. 1953 (claimed by defendants 1-4 to be dated 23. 11. 1955) and 19 biswas vide sale deed dated 06. 01. 1958 be declared null and void. ( 3 ) THE plaintiffs are the legal heirs of deceased Sh. Gajdev Singh and had filed an earlier suit being the suit no. 1676/95 before this Court claiming title and possession of the suit property being the same Khasra no 417, measuring 3 bighas 19 biswas situated at Village Masjid Moth. This suit was apparently transferred to the Districts Courts on increase of pecuniary jurisdiction and was withdrawn on 30. 11. 2005 by the plaintiffs with liberty to file a fresh suit before appropriate forum. Hence, the present suit. ( 4 ) THE claim of the plaintiffs is that on 01. 10. 1945 late Sh. Gajdev Singh and mr. Devdutt Singh, sons of Chaudhary Prithi Singh during their lifetime executed a lease deed in respect of the suit property in favour of M/s National Pottery works. Hence, the present suit. ( 4 ) THE claim of the plaintiffs is that on 01. 10. 1945 late Sh. Gajdev Singh and mr. Devdutt Singh, sons of Chaudhary Prithi Singh during their lifetime executed a lease deed in respect of the suit property in favour of M/s National Pottery works. ( 5 ) THE lease deed provided for extension of the same on execution of a fresh deed, but it is stated that no such fresh lease deed was executed. In 1955, there was a partition of the property bearing khasra no. 416 and 417 and as a sequitur to the same, khasra no. 417 had fallen to the share of late Sh. Gajdev singh. The tenancy of the M/s National Pottery Works is alleged to have been orally terminated on expiry of the lease. The lease was alleged to be for five years and thus M/s National Pottery Works is alleged to have no rights in the property after 1950. Late Sh. Gajdev Singh is stated to have passed away on 21. 7. 1981 and his name is stated to be appearing in khasra Girdawari throughout. The plaintiffs claim to have made representations and have filed applications for effecting the mutation in the name of the legal representatives but the needful was not done. However for the first time on 08. 08. 1995 the names of the defendants came to be recorded in the khasra Girdawari and it is in view thereof that the earlier suit was filed in May 1995 by the plaintiffs for declaration and correction of revenue records as also for permanent injunction restraining the defendants from creating any charge, alienation or construction in the suit property. ( 6 ) THE plaintiffs further stated in the plaint that it is only in the year 2003 they came to know that a suit no. 1845/2000 was pending before this court and a receiver had been appointed when representatives of the parties came to the site at khasra no. 416 and 417. Thereafter the plaintiffs filed an application for impleadment in the said suit. ( 7 ) IN the earlier suit file by the plaintiffs, defendants did not come forth to file the documents of title, but it was only on 24. 09. 416 and 417. Thereafter the plaintiffs filed an application for impleadment in the said suit. ( 7 ) IN the earlier suit file by the plaintiffs, defendants did not come forth to file the documents of title, but it was only on 24. 09. 2005 that an application under Order 7 Rule 11 of Code of Civil Procedure, 1908 ( "the said Code" for short) was filed by defendant no. 9 therein mentioning the sale transactions and execution of sale deeds by the father of the plaintiffs in favour of M/s national Pottery Works without filing any documents of title. The application filed by the plaintiffs in Suit No. 1845 of 2000 for being impleaded was disposed of on 22. 11. 2005 giving liberty to the plaintiffs to get their claim adjudicated in the suit earlier filed by them. ( 8 ) THE plaintiffs claim to have gone to the concerned Sub Registrar"s Office on 24. 01. 2006 to ascertain the particulars of the registry documents but the particulars did not tally with what was disclosed in the written statement filed by the defendant nos 1 to 4. ( 9 ) THE suit is contested by the defendants. It is the stand of the defendant nos 1 to 4 that the property was leased out to M/s National Pottery Works in the year 1945 by the co-owners of the property being four brothers: i) Mr. Devdutt, ii) Mr. Gajdev, iii) Mr. Jaidev and iv) Mr. Pardev whose title was duly recorded in the revenue records. This property was subsequently purchased by the partners of M/s National Pottery Works by separate sale deeds. The four co-owners executed separate sale deeds as under: i)Sh. Devdutt executed sale deed dated 27. 08. 1956 (claimed by the plaintiffs to be dated 27. 06. 1955) for one bigha of land; ii)Sh. Jaidev executed sale deed dated 23. 11. 1955 (claimed by the plaintiffs to be dated 23. 11. 1953) for 19 biswas of land; iii)Sh. Gajdev executed sale deed dated 27. 08. 1956 (claimed by the plaintiffs to be dated 29. 08. 1956) for one bigha of land; and iv)Sh. Pardev executed sale deed dated 06. 01. 1958 for one bigha of land. ( 10 ) THE purchasers are stated to have acquired valid titles in pursuance to the sale deeds and in turn sold the property. 08. 1956 (claimed by the plaintiffs to be dated 29. 08. 1956) for one bigha of land; and iv)Sh. Pardev executed sale deed dated 06. 01. 1958 for one bigha of land. ( 10 ) THE purchasers are stated to have acquired valid titles in pursuance to the sale deeds and in turn sold the property. A number of intermittent transactions took place and some of the defendants are owners of the property now. ( 11 ) THE aspect emphasized by the said defendants is that it is the own case of the plaintiffs that the revenue records show M/s National Pottery Works through its partners as owners for which representations were made to the revenue authorities. Such entries are stated to have been made since 1982. In view of the averments made in para 7 of the plaint the plaintiffs submit that the defendants 1 and 2 having taken undue advantage of their names wrongly shown in column No. 3 of Khasra Girdawari in respect of land Khasra No. 417 measuring 3 bighas 19 biswas for the period 1982 to 1992 which is to be corrected declaring the wrong entries effected in the name of Defendant Nos. 1 and 2 in Khasra girdwari as null and void and incorrect. The Plaintiffs made representations to defendant No. 13 but no action has been taken. The relevant portion reads as under: "the plaintiffs submit that the defendants 1 and 2 having taken undue advantage of their names wrongly shown in column No. 3 of Khasra Girdawari in respect of land Khasra No. 417 measuring 3 bighas 19 biswas for the period 1982 to 1992 which is to be corrected declaring wrong entries affected in the name of defendant no. 1 and 2 in Khasra Girdwari is null and void and in correct. The plaintiffs have made representations to defendant No. 13 but no action has been taken". ( 12 ) IN para 9 of the plaint, the plaintiffs have averred that after the death of sh. Gajdev Singh in 1981, the plaintiffs have made the application for mutation for the first time in the year 1981. ( 13 ) IN view of the averments made in the plaint, it is the stand of defendant nos. ( 12 ) IN para 9 of the plaint, the plaintiffs have averred that after the death of sh. Gajdev Singh in 1981, the plaintiffs have made the application for mutation for the first time in the year 1981. ( 13 ) IN view of the averments made in the plaint, it is the stand of defendant nos. 1 to 4 that the suit is clearly barred by time apart from the merits of the claim that the title in the property has been transferred in pursuance to the duly registered sale deeds as per the original owners. Thus the plaintiffs cannot be permitted to seek cancellation of documents forty years old of which they have had knowledge for more than twenty years. Insofar as defendant nos 17, 18, 20 and 22 are concerned, the stand is more or less the same. It has also been submitted that the period of limitation for seeking declaration in respect of an instrument, even if it is alleged to be forged, is three years under Article 56 of the Limitation Act, 1963 (hereinafter referred to as "the said Act" ). Insofar as any other declaration is concerned, the limitation is again three years under Article 58 of the said Act. The said Articles read as under: Description of Suit period of Limitation time from which period begins to run part III " SUITS RELATING TO DECLARATIONS 56. To declare the forgery of an instrument issued or registered three years when the issue or registration becomes known to the plaintiff. 58. To obtain any other declaration three years when the right to sue first accrues. ( 14 ) THE aforesaid defendants have also emphasized that the sale of the land in parts effected in their favour and the mutations are apparent in the revenue records and Annexure P3 filed by the plaintiffs would show that the certified copies were obtained by Mr. Virender Singh, one of the plaintiffs from the patwari on 01. 01. 1996. Thus a false story is being set up about lack of knowledge about these sale deeds. Even from this date, the limitation would expire on 01. 01. 1999. ( 15 ) DEFENDANTS nos. Virender Singh, one of the plaintiffs from the patwari on 01. 01. 1996. Thus a false story is being set up about lack of knowledge about these sale deeds. Even from this date, the limitation would expire on 01. 01. 1999. ( 15 ) DEFENDANTS nos. 6 and 7 have stated that the partners of M/s National Pottery works not only purchased the land from the four original owners but also purchased additional land measuring two bighas and fourteen biswas in Khasra no 416 vide a registered sale deed dated 27. 01. 1960 from its owners Mr. Shibba and mr. Ramji Lal. On 16. 11. 1979, M/s National Pottery Works entered into sale agreements with M/s Broadway Towers India Limited in respect of the entire property measuring six bighas and thirteen biswas of land. Disputes arose between the said two parties resulting in Suit No. 779 of 1985 being filed before this Court, which was disposed of in pursuance to a compromise decree passed on 19. 08. 1985. This compromise decree dealt with the said land as well as the additional land. On 23. 03. 1995, M/s Broadway Towers India Pvt. Ltd sold the property to various defendants, numbering 12, by selling 1/12th undivided share in the property. Two of these purchasers filed a suit for partition and permanent injunction in view of the disputes between 12 purchasers and the same was registered in this Court as suit no. 1845/2000 which was disposed of on 22. 11. 2000 as having settled and all the parties sold their undivided share in the entire property to Sh. Ashok Jain and Others. Defendant nos 6 and 7 are stated to have sold their undivided share in the property to M/s Prime construction, a partnership firm, vide sale deed registered on 14. 07. 2003. M/s prime Construction is not even a party to this Suit. ( 16 ) ON pleadings being completed, it was submitted that a preliminary issue is liable to be framed on the question of limitation and thus the following issue was framed on 21. 02. 2007. "whether the suit filed by the plaintiffs is within time" OPP ( 17 ) LEARNED counsel for the parties have advanced their submissions on the aforesaid issue. 02. 2007. "whether the suit filed by the plaintiffs is within time" OPP ( 17 ) LEARNED counsel for the parties have advanced their submissions on the aforesaid issue. The substratum of the submissions of the learned counsel for the plaintiffs is that there was no prior knowledge about the sale deeds executed available with the plaintiffs and the particulars given by the defendants in the written statement in the earlier suit were not correct and thus no action could be taken. Learned counsel also submits that since the plaintiffs withdrew the earlier suit with leave to file a subsequent suit, the bar of Order 2 Rule 2 of the said Code would not apply in view of the judgment of the Apex Court in Gurinder Pal v. Jagmittar Singh III (2005) SLT 610. On the other hand, the submission of the learned counsel for the defendants on the basis of the aforesaid facts recorded is that the plaintiffs had full knowledge of the transaction right from the year 1982 or at least in the year 1995 when the written statement was filed by the defendants giving details of the sale transactions. ( 18 ) ON examining the submissions made by learned counsel for the parties and in view of the conspectus of the aforesaid facts, there is no doubt that the sale deeds which are now sought to be declared invalid were executed in the years 1955, 1956 and 1958. In fact, it is not in doubt that there were four co-owners of the suit property including predecessor in interest of the plaintiffs. It is also not in dispute that a lease was created in favour of M/s National pottery Works. The original four co-owners executed sale deeds mentioned aforesaid to transfer their title to M/s National Pottery Works and thereafter the land has been sold further. In fact, there has been intermittent litigation even between the subsequent purchasers. ( 19 ) IT can hardly be accepted that the plaintiffs, who are the sons of one of the co-owners, did not know of this transaction or did not claim any rights in the land over long periods of time. The predecessor in interest of the plaintiffs passed away in the year 1981. It is the own case of the plaintiffs that they applied for mutation in the year 1981. The predecessor in interest of the plaintiffs passed away in the year 1981. It is the own case of the plaintiffs that they applied for mutation in the year 1981. Their awareness of the sale of the property is apparent from the averments made in para 7 of the plaint, which have been extracted above. The plaintiffs sought correction of the revenue records from 1981 onwards. ( 20 ) IN view of these averments in the plaint, it can hardly be said that the plaintiffs were unaware of the transaction but on the other hand were seeking to reopen the chapter by seeking mutation of the land already transferred in the 1950's. The plaintiffs took no steps till they filed the suit in the year 1995. It is not as if the sale deeds in favour of the different defendants were not registered as the sale deeds were duly registered and were public documents. Thus even accepting the plea of the leaned counsel for the plaintiffs that in view of the earlier suit being withdrawn with liberty to file a fresh suit, it cannot be doubted that the first action taken by the plaintiffs is by filing the earlier suit in the year 1995. The knowledge of the plaintiffs is sometime in the year 1981-82. ( 21 ) ANOTHER aspect which is relevant is that the plaintiffs claim lack of knowledge of the registration particulars. It is again not in doubt that in the year 1995, in the earlier suit, the defendants had disclosed the particulars of the sale deed. The plaintiffs never sought to amend that plaint to incorporate the relief of cancellation of those sale deeds in the earlier suit. The plaintiffs cannot get away by saying that the particulars were not correct. If that was the position, the plaintiffs could have done what they allege to have done subsequently in the year 2004-05. The plaintiffs took no steps seeking discovery of documents of sale. ( 22 ) I am thus of the considered view that the plaintiffs had full knowledge of the transaction, if not in the year 1981, at least in the year 1995 and took no steps to seek declaration of the sale deeds. The plaintiffs took no steps seeking discovery of documents of sale. ( 22 ) I am thus of the considered view that the plaintiffs had full knowledge of the transaction, if not in the year 1981, at least in the year 1995 and took no steps to seek declaration of the sale deeds. The suit is clearly barred by the time in view of provisions of the said Act referred to above as the declaration had to be sought within a period of three years from the date of such knowledge. The plaintiffs have amended the plaint and the leave to file a fresh suit cannot imply the right to include time barred claims. The suit is clearly barred by time and thus the preliminary issue is decided against the plaintiff. ( 23 ) IT is not necessary to comment on the merits of the case but suffice to say that the present litigation seems to be a venture in extracting some amount from Page 6 of 6 challenging settled transferred documents more than forty years old. The suit is dismissed with costs.